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THE JOURNAL FOR EXPERT WITNESSES AND INSTRUCTING PROFESSIONALS
THE EXPERT WITNESS ISSUE 7 SPRING 2014
FORENSICS SPECIAL JACKSON REFORMS ONE YEAR ON PSYCHOLOGY - DNA - TRAINING UK £4.00 Euro 5.00 Vol 1 Issue 7 - Spring 2014
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Discover Forensic Innovations to Solve Investigations 29 â€“ 30 April 2014 Co-located with
The Premier International Forensics Event for sourcing forensics products, equipment & services and providing the deďŹ nitive source of education, best practice, training and networking across the entire forensics sector and supply chain.
To get involved go to www.forensicseuropeexpo.com
In Collaboration with
Organised in Partnership with
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Editorial From human to ‘seeker bot’ identification Spring is here. So for this issue we have gathered some of the freshest thinking in forensic science and the digital arena to enrich your experience of visiting Forensics Europe Expo. The topics covered exemplify the UK’s leading position in forensic science, investigative analysis and pathology worldwide. Congratulations to Professor Sue Black at the University of Dundee’s Centre for Anatomy and Human Identification for receiving a Queen’s Anniversary Prize for Higher Education. As CAHID is pushing back the boundaries in historical anatomical identification (Richard 111 was in the news lately), some of the Big 4 accountancy firms are making sense of the relentless stream of 21st century ‘phantoms’ from malware to robots and anonymous web users. KPMG’s Alex Plavsic looks at ‘Seeker bots’ which he sees as the future face of fraud as criminals turn to robotics to avoid detection. He also highlights the emergence of another major risk to legitimate business - the ‘Deep’ web where anonymity rules as highlighted by the recent high-profile Silk Road case. BDO’s Kaley Crossthwaite looks at money laundering and the rise in financial services fraud. Tony Sykes of the IT Group looks at the role of mobile forensics and social media analysis in unravelling ‘Cash for Crash’ scams. SRI’s Ray Evans and Robert Green of the FSS look at the challenges ahead in both their fields of expertise. This thought leadership and insightful analysis from some of the UK’s biggest hitters will help you all to react more readily to challenging litigation and forensic scenarios. We also look at developments across the board of mainstream expert witness activities, from surveying to medicolegal. Talk to us at the Expo - we look forward to meeting you and exploring new forensic investigation strategies and tactics. If you would like to contribute to our follow-up Forensic issue in the summer email firstname.lastname@example.org Des Griffin Editor This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’ The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. ABC audit applied for 2013.
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Events and Conferences Bond Solon Training
Excellence in Report Writing (1 day) Starting 12 May December 2014 09:00 in London Starting 9 June December 2014 09:00 in London Starting 16 June 2014 09:00 in Manchester
05 Jun 2013 For the very first time expert witnesses in built environment matters are going to be assessed and regulated by the sector’s leading professional body. RICS has launched its new international Expert Witness Accreditation Service (EWAS) for the built environment sector. Dispute resolution Expert Witness - report writing e-Learning course www.rics.org/uk/training-events
Courtroom Skills (1 day) Starting 13 May 2014 09:00 in London Starting 10 June 2014 09:00 in London Starting 17 June 2014 09:00 in Manchester Cross-Examination Day (1 day) Starting 14 May 2014 09:30 in London Starting 11 June 2014 09:30 in London Starting 18 June 2014 09:30 in Manchester Criminal Law and Procedure (2 days) Starting 15 May 2014 09:00 in London Civil Procedure Rules for Expert Witnesses Certificate Starting 12 June 2014 09:00 in London Family Procedure Rules for Expert Witnesses Certificate Starting 18 September 2014 09:00 in London Call Bond Solon on 020 7549 2549 for further information or to enrol.
Expert Witness Institute Best Practice Debate: Experts and Lawyers Discussion (in association with DMH Stallard) The Expert Witness Institute When: Monday 12th May 2014 Time: Drinks reception 6pm. Debate 6.30– 8.30pm. 8.30pm-9pm Drinks Venue: DMH Stallards 6 New Street Square New Fetter Lane, London EC4A 3BF EWI Members: £40 Non-members: £50 To book email EWI
SpecialistInfo Training Expert Witness Intensive Training Course: 2 Day Wednesday 2 July 2014 — Thursday 3 July Hallam Conference Centre, London Expert Witness Intensive Training Course: 2 Day Book online now Giving evidence can be challenging and this course is designed to support you in your expert witness role. A solid awareness of procedures and etiquette and knowledge of what to expect from the courts will help to increase your confidence, particularly when responding to the demands of a courtroom appearance. www.healthcareconferencesuk.co.uk/expert-witness-training-medico-legal
Professional Solutions Professional Solutions provides expert witness training of the highest quality. Presented by barristers, solicitors and forensic consultants, our small-group workshops are targeted to meet the needs of the experts in attendance. Writing Evidence in Planning Appeals The recent issue of new Procedural Guide for planning appeals provides an ideal opportunity to develop your skills in writing evidence. Date: 04 June 2014 Time: 9.30-4.30 pm Registration at 9.00 am www.prosols.uk.com
Contact Us We welcome your views and contributions, please send all articles letters and comments to, email@example.com For all editorial comments and enquiries please contact: firstname.lastname@example.org Editor, Des Griffin, email@example.com Artwork & Design, Chris Connelly, firstname.lastname@example.org All accounts and bookings Lee Hirst, email@example.com EXPERT WITNESS JOURNAL 02
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Listed below are some of the article featured in this issue Forensics Special - Introduction to the Expo
Dispelling the Myth of Forensic Accountancy by Kingston Smith
BDO FraudTrack by Kaley Crossthwaite
Getting into the Program by Gareth Lapworth
Recent Developments in IT by Charles M Court-Brown
Advance Digital Forensics by Simon Lang SYTECH
Uncovering Cash for Crash Scams by Tony Sykes IT Group
Forensic Case Studies and Challenges by Ray Evans SRi Forensics
Palynology and Mycology by Dr Patricia Wiltshire & Professor David Hawksworth
The Appliance of Forensic Science in Sexual Offences by Ethos Forensics
Elemental My Dear Watson by The FFC
CAHID Awarded Higher Education Prize by University of Dundee
The Future of Forensic Science by Robert Green FSS
An Overview of Forensic Dentistry by Dr John Rosie
Effects of Childhood Sexual Abuse by Prof Anthony Madden
Modern Forensic Psychiatry by Dr Jonathan Shapero
Forensic Psychology by Dr Dennis R Trent
Assessing the Young Person following a Road Accident by Dr Laskey and Dr Koch
Assessment by Dr Graham Rogers
Needs Assessment in Spinal Cord and Acquired Brain Injures by Soopramanien, Paddison, Freestone, Rogers and De la Fontaine
Should a Treating Clinican also act as an Expert by Koch, Leckart and Lillie
Cultural Difference Matter in Innocence and Guilt Concepts by Dr Bashir Qureshi
Jackson Reform to Civil Litigation - One Year On by Mark Solon
Sudden Acceleration, Spaghetti Software and Trauma by Anthony Anderson
Expert Advice from a Forensic Engineer by Mr Andrew Billingham
RICS Welcomes New Models of Procurement
Lexus GS300H Test Drive Review by Brian â€˜Backboneâ€™ Bennett
All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Expert Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. Printed in England 2014. The Expert Witness Journal Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk
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US C AT OM ST E S AN EE D 1-G 37
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Forensics Europe Expo 2014 offers Unique Opportunity for both Buyers and Providers Across the Forensics Sector Taking place on the 29th and 30th April at Olympia, London, Forensics Europe Expo 2014 is set to be this year’s premier international forum dedicated to the entire forensics sector and its supply chain. Last year, the event introduced over 3000 buyers and specifiers to the latest forensic products, equipment and services as well as providing a definitive source of education and best practice together with unparalleled access to training and networking opportunities. Organised by Clarion Events, Forensics Europe Expo will once again be co-located with Counter Terror Expo 2014, ensuring maximum marketing exposure before, during and after the event and creating an invaluable cross-flow of information. Supporting the exhibition, Forensics Europe will also feature a high level conference programme designed to attract hard-to-reach decision makers and thought leaders from both the public and private forensic arena, making the event an ideal platform for the launch of new products and cutting edge technologies. President of The Forensic Science Society, Dr Ann Priston, commented: “As the largest professional body of forensic practitioners in the UK, it is fitting that we should be represented at Forensic Europe Expo which will not only offer valuable insights into the latest developments in forensic science but also provide an important networking opportunity for those working in areas where forensic science is having a real impact. “Our role at this year’s event is particularly significant as we have just been granted a Royal Charter and we will be exhibiting under our new name, The Chartered Society of Forensic Sciences, and we have chosen to launch at the Expo because it is such a high profile industry event. “The Workshop programme is certain to feature some EXPERT WITNESS JOURNAL 04
fascinating insights into new areas where the expertise of scientists is driving standards in investigation and furthering knowledge. In particular, digital forensics is likely to be widely covered at this year’s exhibition. This is a fascinating and fast-moving field, involving the fight against cyber crime and other challenges that our virtual world is now presenting to law enforcers.” Another key supporter of Forensics Europe Expo is The Forensic and Policing Services Association (FAPSA). Allan Scott, MD of The Evidence Partnership, one of the founding members of FAPSA, said: “Clarion Events have been supportive of our aims of giving SMEs a voice in the forensic and policing market whilst also ensuring that quality is maintained. We’re confident that the event will enable us to explain our ethos and our full range of services to prospective members and show how smaller organisations can make a significant contribution in the criminal justice arena.” Philip Hunter, Event Director, Clarion Defence & Security added: “Forensics Europe Expo has already established its place as the leading event for the entire forensics sector. With an exciting new programme of content, this year’s show promises to offer the best opportunities yet for important new collaborations and business relationships to be established.” ■ For more information or to book your stand, please contact a member of the Forensics Europe Expo team: T: +44 (0) 20 7384 7797 or email firstname.lastname@example.org Visitor registration is now open. Please register for your free exhibition only pass or conference delegate pass at www.forensicseuropeexpo.com/register SPRING 2014
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Dispelling the Mystery of Forensic Accounting In the same way that there is ‘no smoke without fire’, there is no financial scandal or dispute without a forensic accountant. Making sense of the aftermath of the accounting crises of Enron and WorldCom, which shocked the world; the exposed fraud schemes of Bernie Madoff and Allen Stanford; and the Lehman Brothers collapse, which marked the inception of the recent recession; all involved the work of highly skilled forensic accountants. It is the ability to apply an analytical approach and logical mind to complex financial disputes that sets a forensic accountant apart, and ensures that their services remain in high demand. Introduction to the Kingston Smith team In the Forensic Accounting Services department of Kingston Smith LLP we have over 20 years’ experience and specialist knowledge within the area of forensic accounting. All of our employees are qualified Chartered EXPERT WITNESS JOURNAL 05
Accountants and are highly experienced in all types of forensic cases, whether in the context of the civil and criminal courts, or in carrying out investigative/regulatory assignments. As part of Kingston Smith LLP, a top 20 chartered accountancy firm with six offices in London and the South East of England, we provide a full range of financial services to our clients. The services we provide The field of forensic accounting is a fascinating area covering, as it does, a wide range of issues and cases. In broad terms, we may become involved in any court case or quasi-judicial dispute where there is an accountancy related element. More often than not, our output will be in the form of a written report that will be used as evidence with the aim of assisting settlement in the dispute. SPRING 2014
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As forensic accountants we may be instructed by individuals, companies, solicitors or surveyors, and typical cases include: • loss of profits – this could involve quantification of losses incurred by a company making a claim; • business valuations – typically this could be the valuation of a minority shareholding in a private company arising from a shareholder dispute; • compulsory purchase order (CPO) matters – calculating the relocation losses or, alternatively, the extinguishment value of a business that has been issued with a CPO; • professional negligence actions against auditors and accountants – providing an expert opinion on potential breaches of duty by an accountant or auditor in the services they have provided to their client; • fraud investigations – investigating the means by which a fraudster may have misappropriated funds, quantifying any losses incurred, and assisting in the recovery of any amounts lost; • Criminal cases – assessing and quantifying proceeds of crime or tracing assets acquired through criminal activity. The typical aspects of a case The main aspects of a case vary from assignment to assignment. Typically, though, our cases involve two or more parties that are already in dispute, where our role is to provide an expert opinion on the accountancy issues in hand. Usually this will involve reviewing financial and other information to prepare calculations and/or forming a view on the parties’ respective financial positions. These calculations and opinions would, more often than not, be set out in the form of an Expert Witness or Expert Advisory report, which, in the context of litigation, forms our written evidence to the Court. Both the Civil Procedure Rules (CPR) and Criminal Procedure Rules (CrPR) contain requirements setting out how experts must conduct themselves and, in particular, an expert’s overriding duty of independence to the Court. For cases involving litigation, we may either be instructed as a single joint expert or as a party appointed expert. Under a single joint instruction we would receive one set of instructions drafted on behalf of both sides in dispute, typically where the areas of dispute are sufficiently narrowed and where both sides are in agreement as to the main issues that require expert opinion. A party appointed instruction will involve us receiving instructions from one side in the dispute, in order to provide an Expert opinion EXPERT WITNESS JOURNAL 06
on certain issues. Typically in this situation, there will be an opposing Expert instructed by the other side, which could then lead to an exchange of reports and a meeting of the experts, with the aim of agreeing certain matters and narrowing the issues in dispute. It is common for cases to settle prior to reaching court; however, when a case proceeds to court, it may be that the Expert Witness report that has been produced will be used as evidence, and the expert may then be cross-examined by the opposing party’s barrister. Presenting evidence in court and undergoing cross examination is a specialist skill, which has been acquired over many years of experience by senior members of our team. Examples of recent cases There is no such thing as a ‘usual’ case for a Forensic Accountant, as we may be required to assist in any element of a dispute which has a financial aspect to it. However, in order to provide a flavour of some of the types of case we have been involved in, below are some examples of our assignments. Case 1 – Director’s conduct We were instructed on behalf of the Claimants in a dispute where it was alleged that the Defendant, a director of the company in question, had claimed unauthorised and irregular expenses resulting in significant losses suffered to the company. Our work involved a detailed examination of the company records available, substantive testing of the expense claims raised by the Defendant, examination of the financial statements, and an analysis of loans and other liabilities, in order to evaluate the losses suffered by the company. We also assessed the value of the company and the diminution in its value, which arose as a consequence of the Defendant’s conduct. Case 2 – Business interruption We were instructed by insurers to the Claimant Company in connection with a business interruption claim. This claim was the result of a serious fire that destroyed one of the machines on which the business activity of the company was heavily reliant. Work involved reviewing and considering the Claimant’s accounts for the period before and after the fire which caused disruption, and the loss adjustor’s assessment of loss of profit, as well as providing the insurer with our own assessment of the Claimant’s loss of business. Case 3 – Internal fraud investigation In a recent case we were instructed to undertake an internal investigation into a fraud perpetrated by a longstanding member of a company’s finance team. The fraud involved the misappropriation of monies held by the company and the subsequent concealment of this through SPRING 2014
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fictitious entries made on the accounting ledgers. Our work involved ascertaining the extent of the fraud, which involved the quantification of losses incurred by the company and the undertaking of a detailed review of the systems and processes in operation within the company. Our report was used by the lawyers within the legal proceedings against the employee, and by the board of directors as the basis for implementing changes to the controls and processes within the organisation. Case 4 â€“ Criminal case We were instructed by the Defence in a high profile criminal case to undertake a fund flow exercise to trace the sales proceeds of diamond jewellery that was alleged to have been stolen. Our work involved a detailed review and analysis of the Defendantâ€™s bank statements and other evidence provided, in order to ascertain the destination of sales proceeds. The reports submitted provided much needed assistance to our instructing Counsel in order to decide whether an integral part of the Defence could be substantiated
it is not unusual for us to receive enquiries directly from the client. In the first instance, we would look to gain an understanding of the case and scope of the work to be undertaken, which would either be in the form of a face to face meeting or through a teleconference. We would then look to draft a fee proposal document, based on the information provided, setting out the work we would perform and the likely cost. We have a good understanding of the market and, as a result, look to set our fee estimates as competitively as possible to ensure the best value to a client. It is only once we receive formal instructions and commence the agreed scope of work that charges begin to be incurred. â– Should you feel that a forensic accountant may be needed, we are always happy to review some initial information and have a free one hour meeting to discuss any possible case you may have. Should this be the case, please contact email@example.com Telephone: 020 7566 3725.
Receiving instructions It is most common for us to receive initial enquiries from a solicitor representing a client involved in dispute; however,
Forensic Accounting Services
Our Forensic Accounting Services team provides consultancy and Expert Witness services to parties involved in business and financial disputes in the UK and internationally, and professional regulatory matters. We have been engaged in a wide range of cases, including: Business and share valuations Business interruption & contractual disputes Compulsory purchase matters Fraud investigations Matrimonial disputes Partnership and shareholder disputes Accountant and auditor professional negligence Asset tracing
Contact Moira Hindson, Partner firstname.lastname@example.org T 020 7566 3631
Tom Aslin, Partner email@example.com T 020 7566 3725
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BDO FraudTrack Report Sees Surge in Money Laundering • Reported Money laundering related to fraud offences surges 309% to £288m • Fraud in Financial Services now accounts for 51% by value of all UK reported fraud • Increase in legislation and compliance in Financial Services driving increase in reported fraud New research in January 2014 from BDO LLP, the accountancy and business advisory firm shows that both the total value and number of reported cases of money laundering in the UK has surged in the UK. The latest January 2014 FraudTrack report, which examines all reported fraud cases over £50,000 in the UK, finds that the total value of reported money laundering related to fraud offences has risen to £288m compared to £70m in 2012 representing a total value increase of over 309% on the prior year. The actual number of reported money laundering cases meanwhile has also risen from 33 in 2012 to 39 in 2013. The largest cases of reported money laundering include: • £170m laundered through a bureau de change in Notting Hill • £52m laundered by a courier in the East Midlands • £20m laundered as part of a bogus marriage scam ring in London The report's author, Kaley Crossthwaite, Head of Fraud at BDO LLP, commented: "Money laundering can take many different forms but the common thread is the supposed legitimate investment of illegal funds to conceal their EXPERT WITNESS JOURNAL 08
source. The complexity of the investment can often make it very difficult to detect and, even when found, can take years and vast expense, often to the tax-payer, to unwind. "Reported cases of money laundering have surged in 2013 both in terms of value and number of cases driven largely by criminal greed. This may be partly down to an increase in organised crime activity however the demand for transparency in the financial services sector is also surely playing a part. The laundering of ill-gotten gains is largely carried out through the financial services sector and the increased legislation and compliance imposed on largely unsuspecting businesses operating in this sector seem to be uncovering increasing numbers of illegal transactions that may have historically been swept under the carpet." Rise in Financial Services Fraud In terms of sectors, fraud in the Financial Services industry now accounts for 51% of all reported fraud in the UK by value and over 25% by number of reported cases. BDO's FraudTrack finds that while the total amount of fraud has fallen from £1.37bn in 2012 to £1.05bn in 2013, the total value of Financial Services fraud has risen from £473m in 2012 to £532m in 2013, with the number of frauds in the sector rising from 122 in 2012 to 132 in 2013. SPRING 2014
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BDO believes that the increase in value and number of frauds reported in the sector can be attributed to increased regulation and compliance driving greater transparency. BDO's Kaley Crossthwaite added: "At face value, fraud in the Financial Services sector would appear to be on the march, however we need to give this context. We firmly believe that the ever increasing regulatory and compliance burden imposed on Financial Services firms by the FCA and PRA means that fraud which historically may not have been reported, but rather dealt with privately in-house, is now coming out driven by a growing demand for transparency." Sector breakdown The 2013 FraudTrack report also shows that while the overall number of cases recorded continued to increase from 413 in 2011 to 416 in 2012 and 525 in 2013, the average value of frauds has continued to fall from ÂŁ5.1m in 2011 to ÂŁ3.3m in 2012 and ÂŁ2.0m in 2013. The top three industries most susceptible to fraudulent activity are: Finance and Insurance (ÂŁ532m) Public Administration (ÂŁ150m) Other Services (except Public Administration) (ÂŁ93m)
Types of fraudulent activity: 1) Money Laundering - ÂŁ288m (27.4% of all activity) 2) Third party fraud - ÂŁ209m (20.0% of all activity) 3) Unauthorised use/ misuse of assets - ÂŁ76.6m (14.1% of all activity) 4) Tax fraud - ÂŁ142m (13.5% of all activity) 5) Employee fraud - ÂŁ77.8m (7.4% of all activity) 6) Corruption - ÂŁ75.8m (7.2% of all activity) 7) Mortgage fraud - ÂŁ75.6m (7.2% of all activity) Kaley Crossthwaite concluded: "It is very surprising that that the total value of fraud is down when the number of reported frauds has risen so steeply. Usually driven by greed, the consensus view is that fraud is increasing, but it is always very difficult to quantify given the general lack of reporting of fraud across different sectors in the UK. Unless it is easy to quantify and explain in court, many frauds do not get brought to trial. "Contrary to this however, Financial Services would seem to be taking a lead with increasing regulatory demands for greater transparency in the sector leading to more fraud coming to light in this area." â– FraudTrack is prepared by BDO LLP and is based on all reported fraud cases over ÂŁ50,000 between 01/12/2012 and 30/11/2013.
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Our accident investigation reports include: O Road Accident Reconstruction O Vehicle, Light Bulb, Tyre and Component Examinations O Tachograph Analysis, Route Tracing, Hours and Regulations O Death by Dangerous/Careless Driving O Speed Detection Devices O Fraudulent Insurance Claims, Staged Collisions O Stolen Vehicle Examinations O Personal Injury Claims, Whiplash Collisions O Scale Plans and Locus Reports O Surveillance Services, Vehicle Tracking O Incident Data Recorder Analysis
â€ŚComputer Investigations â€ŚMobile Phone Analysis â€ŚCCTV Investigations â€ŚSat Nav Analysis â€ŚAudio and Video Transcription â€ŚData Recovery
5 Oxford Court | St James Road | Brackley | NN13 7XY Tel: 01280 707190 | DX 16982 Brackley www.griffinforensics.com
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Beware the Seeker Bot Computers are the new conmen, according to KPMG’s latest Profile of a Fraudster report Computers, rather than conmen, are set to be the future face of fraud as criminals turn to robotics to help avoid detection. According to KPMG International’s Profile of a Fraudster, organisations are set to battle so-called ‘seeker bots’. These are self-learning and self-replicating Artificial Intelligence that will render the faces of criminals invisible. Fraud specialists have long debated whether it is possible to develop a fraudster profile that is accurate enough to help organisations catch fraudsters. Predicting a crime before it occurs is, at least for now, the subject of science fiction. However, analysing the constantly changing nature of fraud and the fraudster can help organisations improve their defences against these criminal activities. Forewarned is forearmed. Profile of a Fraudster is based on analysis of 596 frauds investigated by the member firms between 2011 and 2013. It also includes interviews with KPMG member firms’ investigation leaders which explore the relationship between the fraudsters’ attributes, motivations and the environment in which they flourish. The profile of a fraudster Based on their crimes, we believe traditional fraudsters (36 – 45 years old, acting against their own organisation and in an executive positions) will be replaced, or added to, by ’seeker bots‘. These will continuously test a company’s cyber defences to find security gaps. The report warns that, on finding a weakness, the bots will analyse fraud potential and launch a specialised ‘attack bot’. The bot will be uniquely designed to suit the type of business, size, infrastructure and victim’s data setup. The aim will be to move assets to a virtual delivery location which the fraudsters can then access. At the same time, the report identifies that fraudsters are by nature collaborative, preferring to collude with others instead of following the reclusive loner stereotype. The data reveals the proportion of collusion cases rose from 32 percent in 2007 to 61 percent in 2011 and 70 percent in 2013. Often, perpetrators were highly respected (39 percent of all cases), regarded as sociable (35 percent) and/or an extrovert (33 percent). EXPERT WITNESS JOURNAL 10
Using external criminals An important form of collusion is where it happens between employees and individuals outside the organisation. This is especially the case in certain fraud types, e. g. procurement fraud, where invoices are inflated. Many organizations fail to conduct due diligence of their suppliers and corporate customers. For 43 percent of frauds, the collusion involved an organisation’s individuals working with external criminals. Alex Plavsic, Head of of Investigations and Compliance for KPMG in the UK says: “In the UK more than 60 percent of bribery and corruption investigations relate to problems in other jurisdictions. This is not about more or less corruption in different countries, but the fact that the further away from head office you go, the more the message dissipates, especially in the face of significant pressure on people to achieve results.” He adds that: “the ultimate defence in today’s environment is to ask whether you are doing business with and through people you can trust”. Unravelling future fraud The best investigators will be able to reduce large amounts of data to specific fraud events. Some skills will stay current, with successful defence requiring an ability to work across borders and share intelligence to ensure organisations track behavioural patterns quickly. While some things will surely change, and the cyber fraudster’s invisibility concerns us, we must not forget fraudsters are typically long-standing, trusted employees. The one you may never have suspected…. right in front of your eyes, remaining unnoticed. ■
Alex Plavsic is Head of Investigations and Compliance and a Partner in the Forensic team at KPMG in London. Contact details: Direct Line: +44 (0) 20 7311 3862 Mobile: +447710808969 Email firstname.lastname@example.org SPRING 2014
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Getting Into the Program by Gareth Lapworth As an academic working in the field of computer security and digital forensics, I spend a lot of my time working with students to help them understand the importance of each 0 or 1 that they come across. Comprehending the significance of even the smallest bits of data is an incredibly important part of the learning experience that they receive when they take a class with myself or any one of my colleagues. I specialise in the more technical subjects, where my students are able to pit their skills against the theory by immersing themselves in practical work. Often this will involve writing programs, in a variety of programming languages, which not only gives the student a good grounding in understanding the computer and what it is doing but equally, it helps them understand how to develop tools which they can use in order to solve some complex problems. A while ago, I was asked to be an expert witness in a case relating to software and authorship. A UK based company was in the process of writing a system which was specific to their trading domain and the company employed a single developer to write the code for them. Some way through the software development process there was a small internal conflict between the developer and the owner of EXPERT WITNESS JOURNAL 11
the business as to which programming language should be used to write the software. However, at this time, the development was nearing completion. The owner asked the developer to continue using Microsoft Visual Basic and to finish the system as specified, but the developer wanted to use C++. An agreement was reached that the next version of the software would see the software redeveloped in the C++ programming language, but the current version would be completed and shipped to customers in Visual Basic. Visual Basic and C++ are two very different programming languages. The language constructs themselves are radically different. Without getting into too much of the technical details, programs written in C++ are syntactically different to those which are written in Visual Basic. C++ is what is known as an Object Oriented programming language which is a style of programming which models the program as a series of objects. Visual Basic is used mostly as an event driven programming language, but also what is known as a procedural language. The event driven paradigm works by placing code behind buttons and menu items etc. When a user clicks on one of those buttons, the code underneath will SPRING 2014
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execute and then the program will wait for the next event. Since the syntax and style of these two programming languages is very different, it is impossible to take a chunk of Visual Basic code and place it in a C++ program, it simply wouldn't work. At a late stage of the development of the system, a new product, which was written in C++, appeared on the market and was a incredibly similar to the one which was being developed in Visual Basic for my clients business. Interestingly, this new system was actually being developed and sold by the same developer that was contracted to write the software system for my client. When the case arrived at my desk, I was tasked with looking at the two applications to determine if this new product which had been developed, was a translation or was otherwise derived from the original Visual Basic application written for my client. I was also asked to look at what degree of code might have been reproduced from one product to the other as well as determine if any routines or algorithms had been used in the new development. For any program which is being developed, there is never just one set of files which contain the code of the application. A good software development methodology would insist upon a revision control system of some degree. Usually, software engineers will employ an automated mechanism for this purpose. As software grows through every save of a source file, the revision control system will generate a new version of the application. This is incredibly useful and allows developers to keep track of changes and to roll back to an earlier revision if a bug was found or if something had gone wrong. In this environment, literally hundreds of thousands of revisions of the software can be generated, each one containing different variations of the source code. When looking at more than one application, and trying to gather if one of them contains parts that may be derived from another, the first step is to compile a list of all of the versions of the code, to see what the major changes are between each, and doing this for both applications. This can be a very lengthy task, even with a small number of original source files, since there may be many, many versions of each individual file. To complicate matters further, some versions of the code in this case were given to me as hard copy. Once all of the code revisions were well understood, the next process was to examine each software product in great detail to determine both what it does, and how it does it. This is achieved by executing the software, to get a quick understanding and then to examine the important parts of the code, line by line, to fully appreciate the algorithms or patterns that were implemented. In doing EXPERT WITNESS JOURNAL 12
this, the case notes given to the expert should explain the direction the expert should look in order to minimise the time to locate which parts of the program are the most important. Luckily for me, this was certainly true for my case. The owner of the business had an excellent grasp of the software system, and how it worked, so was able to give valuable insight into which aspects of the system were the most important for my investigation. The question of translation given in the instructions was important. In order to deduce if one program had been translated into another program, I must have to consider whether or not the developer, at the time of writing the new program, was physically looking at the original source code in order to write the new system. In other words, was the developer transcribing the work from one language to the next? As explained earlier, Visual Basic and C++ are radically different programming languages. The constructs are different, and so is the syntax and style of the written code. It is therefore very difficult (read: impossible) to capture a few lines of code in one language and suppose that they are the same in the other language. If both languages were the same, then this would be incredibly simple. The methodology employed in my investigation was to focus entirely on the business logic of each program. This means in practice that I would discount any code which is used to draw the window on the screen, place the buttons, and other user interface controls, as well as dealing with the event driven component of the application. Instead, I was interested only in the complex parts of the program that mechanistically are responsible for performing the main functionality of the application. For example, in an purchase order system, the business logic is responsible for dealing with the way the orders are stored, and how the calculations are made along with any auditing that may be done. In the case of the software I was examining, the business logic would exist as a series of functions which allow the software to perform its intended purpose. It may exist as functions that accept user input (or other data inputs), and then, through a series of logical steps produce some data output. It may also have existed as by way of smaller helper functions that would complement other parts of the program in performing their tasks. In programming, there is more than one way to perform a series of logical operations (in fact, this is a well known programming acronym â€“ TMTOWTDI, pronounced Tim Toady, there is more than one way to do it), so comparing the algorithmic processes between any similar business logic in both applications (and their associated versions) is the key technique to use. After some extensive testing, and with the directions given to me by the owner of the business, I outlined seven key areas where the functionality of the business logic SPRING 2014
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overlapped between both software systems, and then systematically mapped out the source code instructions that were implemented for both systems to determine firstly, what the similarities were, and given their complexity, whether any parts of these algorithms had been translated from the Visual Basic system to the C++ system. Since both applications offered encryption and decryption mechanisms, this was the the first area I would look. There are many ways in which one can write encryption functionality, and it starts with the simple, easy to break encryption, right through to heavy mathematical formulas which are complex, and provably difficult to penetrate. The encryption routines that were implemented in the original system were not part of any public source code library that already existed, and instead were custom routines written specifically for my client. Since these were custom, it should be easier to spot if the same algorithm has been put into place in the new system. After all, if the develop had transcribed the system, and re-used parts of the original software routines in the new system, then why would the developer re-invent any of the more taxing and complicated encryption routines. After careful examination of the source code in both languages, I found that the encryption and decryption routines were semantically the same in both software systems. Whilst looking at these functions within the source code, I also noted that the very long hexadecimal string of numbers that was used as a special secret key to encrypt and decrypt data, was exactly the same in both systems, too. Technically speaking, this is a big no no for any software. Using the same secret key for encryption of data would be wrong, because if one software product was exploited, then all of the software systems that use the same key would be vulnerable to the same data leakage attack. Also, since the key was just a large string of seemingly random hexadecimal numbers, finding this same value in the other system gives me a very strong indication that it was indeed copied and pasted from one file, to the other, lending credibility to the fact that the systems were certainly translated â€“ or that the source code of one system was viewed in order to build the second system.
too. Of course, this further helped to cement my thoughts when writing up my report. Software developers are often creatures of habit, they will have a way of writing code that they are comfortable with. They will use libraries and routines that they understand well, and generally each developer has their own style of writing. Noticing differences in the style of the code is a great indicator to determine if more than one person is responsible for authoring parts of the same system. Generally though, these patterns of style won't follow between different programming languages, especially where the languages themselves constrain the developer by forcing particular stylistic approaches to the code. Reading code is a lot like reading a book, and in my o pinion, it can be quickly noticed when the writing style changes and the types of functions become more or less complex. My work in this area and specifically on this case has worried some of my students. I've made it clear, time and again to them that I can spot the authorship of software, even across different languages a mile away. I believe that my students try harder not to discuss any of their algorithms and their designs to each other, especially when the assessment period is coming up. â–
The analysis of the rest of the system was completed in the same way. Some parts of the new system were completely the same, where other parts were slightly different, however the bulk of the logical functionality absolutely shared roots with the original system, and I think it is completely fair to say that most of the know-how from the new system came from my clients' Visual Basic application. One of the interesting parts of this case was a small software bug that existed in the original Visual Basic application, that I only noticed after extensive analysis of the source code, actually existed in the new C++ system EXPERT WITNESS JOURNAL 13
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Recent Developments in IT Forensics Tony Sykes of IT Group looks at new developments as this field of forensic science celebrates more than 25 years’ service to Criminal Prosecution and Defence. Computer forensic evidence first started to be applied to serious crime in the mid 80’s when personal computers started to be used in greater numbers and criminals deployed PCs for fraud and other crimes. Today computer forensics is widely used across a much broader range of cases in both the criminal and civil arenas with crime still being the major area. The Police routinely seize computers, mobile phones and other electronic equipment when investigating a crime and then run specialist forensic software to preserve everything on the hard drives and other media. They are able to un-delete material and to piece together email and internet histories to check what the equipment has been used for and when. In the Insurance Sector there is a growing need to analyse Personal Injury claims resulting for example from whiplash injuries sustained in car crashes. For many years there have been a growing number of fraudulent claims in cases where there has been a minor road traffic accident. Insured drivers and passengers have made claims in their thousands for whiplash safe in the knowledge that the wearing of a neck brace for a few days and the filling in of the right forms coupled with assistance from a “no win – no fee” lawyer usually results in a pay out of a few thousand pounds. EXPERT WITNESS JOURNAL 14
Such cases are difficult to assess but in recent years more sinister, organised accidents colloquially known as “cash for crash” have been uncovered where groups of people organise a deliberate crash with an unsuspecting motorist and who then run up extortionate, disproportionate expenses for hire cars or repairs together with several claims for whiplash. A later development has seen two cars crash, each with four or five occupants all of whom then sue the driver of the car behind for whiplash and other expenses. All the people in the two cars “know” each other and the crash is staged. Variations on this theme include phantom crashes (that simple did not take place) or phantom passengers making claims when they were not even in the vehicle. These organised “cash-for-crash” events require good high-tech forensic analysis. As one of the oldest computer forensic firms in the UK, IT Group has a wealth of experience backed by state of the art equipment and software to guide insurers and solicitors in this difficult field. Most work involves the analysis of mobile phones which are powerful computers in their own right. A combination of deleted content (SMS text messages, emails, call
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histories, contacts etc.) with positional information extracted from wi-fi data buried in the phone or cell-site data obtained from the phone company provide a wealth of evidence not only to prove what the user of the phone did or where he was, but importantly in a suspected fraudulent insurance claim, where that person could not have been. Cell site analysis is the simplest place to start. One or more of the claimants needs to give permission to examine their phone records. The phone records are obtained from the service provider and analysis will show which mobile phone masts handled any calls around the time of the alleged crash. Analysis of several phones involved my rule in or rule out communication between parties who may have claimed not to know each other. Full analysis of a mobile phone can retrieve deleted SMS text messages which may reveal connections between parties claiming not to know each other. Similarly social media accounts such as FaceBook can be used to check who is “friends” with whom and any communications between them.
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In one recent case, the Sat Nav in one of the cars was analysed and data extracted to see if the car was at the location of the alleged accident. In a similar recent case a vehicle tracker was interrogated to establish time and location and some indication of actual speed. Access to very high volumes of data, particularly email data, can create daunting levels of analysis and often the mere act of trawling through thousands and sometimes millions of emails can be self-defeating and the “obvious” no longer stands out and is missed. To counter this real problem, IT Group has developed a fast, powerful web based e-Disclosure service called Intella®Connect to make the investigation, review and disclosure of electronic documents very straight forward. With no software to load, it is simply a case of using your internet browser. The Intella investigation and e-discovery software enables IT Group to provide clients and instructing solicitors with a fast turnaround of detailed, easy to access reports and results from retrievals (including email conversation threads, document files and metadata), by enabling its team of experts to quickly find critical data, visualise
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relevant relationships and drill down to the most pertinent evidence.
assessment and training. The use of colour and “bubbles” bring the investigation toll to life.
IT Group experts can additionally identify key areas that require further investigation and disclose Intellectual Property theft, uncover inappropriate images, and perform cost effective eDiscovery preparation in a much more effective method for its clients. This is particularly valuable during the Early Case Assessment (ECA) process.
Recently we have been instructed in a number of cases where a complete office has been forensically imaged. Servers and PCs together with laptops, PDAs and the humble mobile phone are all routinely identified and imaged. IT Group UK Ltd has found the office photocopier to be a potential source of evidence in the search for electronic documents. These machines can be examined forensically for inappropriate copying of confidential documents.
An example of previous cases with which IT Group has assisted includes Europe’s largest alleged “Boiler Room Fraud” case which required a forensic analysis of the complete contents of a corporate mail server, several web-based email systems and every office computer within the organisation. All of this material was provided to the instructing solicitors on a portable encrypted hard disk allowing the lawyers to search, review and tag documents for extraction. A further example; IT Group assisted in the execution of a search order resulting from suspected Intellectual Property Rights (IPR) theft where material from both the defendant’s and the claimant’s file and email servers were brought together to establish whether documents had flowed from one to the other. The resultant files of interest were provided to the lawyers and the clients for joint review within Intella. There is undoubtedly an increasing volume of requests for this particular forensic service as instructing solicitors recognise not only the importance of the role email plays in both civil and criminal cases but more importantly, the need to present the evidence clearly and cogently before the Court.
Since around 2002 most multifunction photocopiers and printers have contained PC-style hard drives which store the documents that are copied, scanned, and printed. They also store data in DRAM memory, as used in conventional computers. Moreover, these machines often track usage, retaining the date, time and sometimes user details, for feeding through to billing software (whether that is in use or not). Commonly, they are also used across office networks and, therefore, the network servers are storing details of their use. Famously, this became a real security issue when leased machines went out of contract and were re-sold, only to find that they contained confidential data. However, over time manufacturers have provided a level of security to their printers and copiers, which can include encryption and, most commonly, overwriting of the data. However, a word of warning; these features are often supplied as optional extras and even if selected they need to be properly set up. This is why many copier suppliers and data destroyers continue to offer to remove data from your copier hard drive at end of life. So, the modern copier provides another source of data for potential examination in cases where there has been inappropriate use of a client’s confidential information. Drawings, contracts, lists, etc may have been simply photocopied, but, the user may not be aware that the photocopier is holding a record of its use and an image of the document. ■
Because of Intella’s visual screen presentation, the relationship between email senders and receivers and those CC’d together with the source and destination(s) of attachments becomes much easier to assess and unusual patterns of behaviour can be spotted even after only a few minutes training. The screen shot above shows a snap-shot of the Enron database which is routinely used for
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Tony Sykes, Senior Partner in IT Group is a Chartered IT Professional and a Chartered Electrical Engineer. He has twenty years’ experience as an IT and Electrical Engineering Consultant and is an experienced Expert Witness. IT Group provides a broad range of consultancy services including Insurance assessment, forensic IT/telecoms/ Electrical systems examination e-Disclosure and expert services. www.itgroup-uk.com
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Advanced Digital Forensics What Else is Possible? by Simon Lang BSc (Hons). Digital Forensic Manager SYTECH - Digital Forensics As the speed of personal technology and digital security advances, so must the techniques used in extracting and more importantly interpreting the essential evidential data found within and generated by modern digital device.
phones, Solid State Hard-Drives and even USB Flash drives. Chip-off is a process that has been perfected over the years which uses a number of tools and complex techniques to access and decode this essential data.
Case Example A recent Digital Forensic assisted case involved a serial rapist whom attempted to murder a number of victims was caught and prosecuted due to the invaluable digital evidence gained and analysed.
Phone & Mobile Device Examination Industry-leading forensic processes are used to extract every single item of data both live and deleted from the device, associated SIMs and memory cards. All of this information is presented to you in a format which is easy to understand and suitable to be used as Evidence no matter the type of case.
This was a multi pronged examination which utilised the most advanced aspects of the Digital Forensic Disciplines described below. Raw Facebook data was analysed which showed the defendant using various online accounts which were attributable to their mobile devices via the use of in-depth analysis. Cell-Site Analysis showed the “hunt” as he stalked his victims and randomly selected lone female victims at night, whilst locational data recovered directly from the handset showed numerous reconnaissance “missions” carried out by the suspect prior to these attacks. The compelling evidence produced by this digital investigation assisted in the suspect being sentenced to life imprisonment. Forensic Chip-Off Examinations This is particularly useful and ground-breaking technique when it comes to recovering evidence from pin-locked or password protected BlackBerry devices and “smashed” EXPERT WITNESS JOURNAL 17
Latest breakthroughs currently being pioneered include that of a complex examination technique referred to as JTAG. This involves bypassing a mobile phones operating system and by using specialist equipment pulling both live & deleted data from the memory directly through the handsets circuit board. This is essential on Smartphone's which aren’t supported by conventional forensic techniques as well as PIN/Password protected Android based phones. The latest password protected Apple devices such as the iPad ,iPhone 4S/5/5S/5C are now accessible to various degrees of data extraction which until now have been inaccessible to evidence until the in-house R&D have thwarted this complex forensic problem. Cell-Site – Mobile Phone Cell Site Evidence Cell-Site Analysis is an invaluable branch of Digital Forensic based Services through which we can provide you SPRING 2014
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with the location of mobile devices when communications occur â€“ and this can be any form of communication â€“ whether calls, SMS or MMS.
It is important to always be at the forefront of new and emerging technologies such as Bitcoin. Whereby it is now possible to carry out Bitcoin based Forensics & Recovery.
This provides a reliable way for you to place individualsâ€™ mobiles in order that you can establish a picture of who was where, and when.
Attribution Attribution of devices and data is offered used in all the above forensic disciplines. It is often best used in the differentiation of clean & dirty devices, or in the proving or disproving of alibis using complex communications patterns, location based data. And pattern of life analysis.
This evidence can be used within a legal case where a personâ€™s location is required, and this in turn can often help establish the guilt or innocence of an individual. Recent advancements in the analysis of GPRS (Mobile Data) packets and data analysis brings a whole new level of accuracy to the location of a device never before thought possible. Computer Forensics Computer Forensics is synonymous with materials of an indecent nature. However; Computer Forensics can be involved in absolutely any type of Criminal Investigation. By utilising advanced research methods on a daily basis tackle such complex investigatory matters such as the Encryption of valuable data or the use of TOR (The Onion Router) to anonymously traverse the Internet and gaining access to The Darknet which has recently often been referenced in News articles and offered referred to as the â€œHidden Underbelly of the Searchable Webâ€?.
Often the best place to find this expertise is within the Private Sector, whereby essential and ongoing R&D is always utilised to its fullest, so the experts can always stay one step ahead. The speed of these examinations, production of findings and expert knowledge is an invaluable tool that private companies can offer and more importantly at a fraction of the internal cost. â–
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Even in this state SYTECH were are able to extract both the live and deleted data held within.
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Making Inroads on ‘Cash for Crash’ Scams Tony Sykes of IT Group looks at the role of mobile forensics and social media analysis in uncovering insurance fraud. Computer forensic evidence first started to be applied to serious crime in the mid 80’s when personal computers started to be used in greater numbers and criminals deployed PCs for fraud and other crimes. Today computer forensics is widely used across a much broader range of cases in both the criminal and civil arenas with crime still being the major area. The Police routinely seize computers, mobile phones and other electronic equipment when investigating a crime and then run specialist forensic software to preserve everything on the hard drives and other media. They are able to un-delete material and to piece together email and internet histories to check what the equipment has been used for and when. In the Insurance Sector there is a growing need to analyse Personal Injury claims resulting for example from whiplash injuries sustained in car crashes. For many years there have been a growing number of fraudulent claims in cases where there has been a minor road traffic accident. Insured drivers and passengers have made claims in their thousands for whiplash safe in the knowledge that the wearing of a neck brace for a few days and the filling in of the right forms coupled with assistance from a “no EXPERT WITNESS JOURNAL 19
win – no fee” lawyer usually results in a pay out of a few thousand pounds. Such cases are difficult to assess but in recent years more sinister, organised accidents colloquially known as “cash for crash” have been uncovered where groups of people organise a deliberate crash with an unsuspecting motorist and who then run up extortionate, disproportionate expenses for hire cars or repairs together with several claims for whiplash. A later development has seen two cars crash, each with four or five occupants all of whom then sue the driver of the car behind for whiplash and other expenses. All the people in the two cars “know” each other and the crash is staged. Variations on this theme include phantom crashes (that simple did not take place) or phantom passengers making claims when they were not even in the vehicle. High-tech forensic analysis These organised “cash-for-crash” events require good high-tech forensic analysis. As one of the oldest computer forensic firms in the UK, IT Group has a wealth of experience backed by state of the art equipment and software to guide insurers and solicitors in this difficult field. SPRING 2014
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Most work involves the analysis of mobile phones which are powerful computers in their own right. A combination of deleted content (SMS text messages, emails, call histories, contacts etc.) with positional information extracted from wi-fi data buried in the phone or cell-site data obtained from the phone company provide a wealth of evidence not only to prove what the user of the phone did or where he was, but importantly in a suspected fraudulent insurance claim, where that person could not have been. Cell site analysis is the simplest place to start. One or more of the claimants needs to give permission to examine their phone records. The phone records are obtained from the service provider and analysis will show which mobile phone masts handled any calls around the time of the alleged crash. Analysis of several phones involved my rule in or rule out communication between parties who may have claimed not to know each other. Full analysis of a mobile phone can retrieve deleted SMS text messages which may reveal connections between parties claiming not to know each other. Similarly social media accounts such as Facebook can be used to check who is “friends” with whom and any communications between them. In one recent case, the Sat Nav in one of the cars was analysed and data extracted to see if the car was at the location of the alleged accident. In a similar recent case a vehicle tracker was interrogated to establish time and location and some indication of actual speed. SAT NAV data recovery Just as mobile phone records can be used to determine where a mobile phone was when it was being used, so too can a SAT NAV system. IT Group now has state-of-the-art forensic technology to extract data from SAT NAV systems for forensic analysis. Such data can be vital in cases involving fraudulent insurance claims including "Cash for Crash" fraud. It can also be used to supplement mobile phone evidence in Serious Organised crime cases. Whether the SAT NAV is a built in system, a portable device such as a TomTom® or an app on a mobile phone, critical data can be recovered. Mobile Phone Forensic Analysis IT Group is frequently instructed to provide evidence as experts in relation to mobile phone / radio telephone analysis and provides CrPR Part 33 (Criminal Procedure Rules) and Section 9 Witness statements for many firms involved in criminal cases. Criminal litigation cases and fraud cases involving mobile phone forensic analysis include: • Text Message Recovery /SMS Retrieval - Restore deleted text messages (/undelete sms). EXPERT WITNESS JOURNAL 20
• SIM card data Recovery – Using forensic technology IT Group can retrieve phone memory, including phone book contact numbers, from the SIM card - even for those with a PIN locked SIM card, or without the original SIM. • Cell Site Analysis – IT Group provides cell site analysis and mobile phone mapping / tracking for cases that require evidence of the past geographical location of a cell phone, including the analysis of call detail records and on-site network measurement. • Handset Analysis • Communications Data Analysis - Includes investigations into usage profiles, call patterns and bill records • Mobile Phone Fraud / Misuse / Phone Hacker • Mobile Phone / Telephone Attribution IT Group also provides data recovery services for hard disk drives, laptops, PDAs, and emails. Cell Site Analysis Cell Site Analysis is used to determine the geographical location of a mobile phone from data stored when SMS / text messages or calls are made or received. This is done by analysing the call data records from the service provider and where necessary by conducting on-site surveys and analysing the measurements taken at the location of the serving cell site mast to determine coverage. The combination of cell site analysis and mobile phone attribution (the process of linking a mobile to a user) can help establish the facts surrounding a crime or can assist in corroborating an alibi. • IT Group provides CrPR Part 33 (Criminal Procedure Rules) reports and Section 9 Witness statements for many firms involved in criminal cases. • Many years experience in providing cell site analysis forensic services / mobile phone mapping and attribution services for mobile phones in criminal and civil litigation cases. These services also include the analysis of call detail records and on-site network measurement, if required. • IT Group has invested hugely in expert training and state of the art technical mobile forensic equipment to ensure it can provide a fast turnaround and a highly competitive cell site and attribution phone service. • IT Group has offices and cell site analysts in a number of areas throughout the UK, including London, Telford, Preston, Leeds, Ireland and Scotland, so a local expert is only round the corner. ■ For further information contact IT Group on; +44 (0)845 226 0331 (Midlands & North) +44 (0)207 096 3791 (London & South).
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The Deep and Dark Web The ability to understand fraud in all its manifestations is the new challenge facing litigators. KMPG looks at the latest risk to legitimate business
Lying beneath the billions of Google-indexed websites on the internet is a hidden web, thousands of times larger than the indexed, or ‘surface’, internet. The vast majority of this hidden, or ‘deep’, web is made up of inaccessible areas such as libraries, archives, corporate intranets and Facebook posts. There are however, a number of web pages that have been deliberately hidden that include illegal, or morally questionable, material- this area is known as the ‘Dark Web’. Only a web user who makes themselves ‘anonymous’ online can gain access to the deep web. Using ‘anonymity network’ software, a user’s IP address can be hidden by routing the user to the web page via random servers around the world and creating a temporary IP address instead, essentially anonymising their computer. This mechanism provides multiple layers of encryption and has therefore become known as ‘onion routing’. Onion routing was originally developed by the United States military to enable untraceable communication between the armed forces. Through software applications such as Tor, this is now accessible to individual internet users. Onion routing means that new pages can be added without detection and pages can be hosted and visited anonymously. The result is that it is often used by political activists in repressive regimes to disseminate messages. For this reason, the deep web was used extensively during the ‘Arab Spring’ uprisings. However, there is an attraction to the deep web for the more nefarious internet user. This anonymous space on the internet has created a marketplace for providers of goods and services seeking to avoid the attention of the authorities- the so-called ‘Dark Web’.
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This includes criminal activity such as the distribution of child pornography, but also includes activity which is less obviously illegal. For example, there are websites specialising in the sale of research-level pharmaceuticals and others in the sale of significantly discounted (and presumably counterfeit) electronics. It is websites such as these that pose the greatest threat to legitimate business. Anonymous web usage The sale of goods and services in these dark web marketplaces remains anonymous through the use of an online, ‘untraceable’, currency known as ‘Bitcoin’. There are only ever 21 million bitcoins (or BTCs) in circulation. These are traded between individuals on a peer-to-peer network and therefore do not require a central bank. It is the lack of audit trail surrounding the use of Bitcoin that makes it so attractive to dark web businesses and the ideal currency for dealing in the dark web marketplace. Added to this, there is something known as the ‘Bitcoin mixer’, a central repository where bitcoins can be placed, randomised and withdrawn, affectively removing any audit trail and ‘laundering’ the BTCs much like a traditional money launderer would do using the real-world banking system. The combination of hidden web space, anonymous web users and untraceable currency has created near perfect conditions for the sale and purchase of illegal goods and services. The most infamous online retail outlet operating in this marketplace, currently under investigation in the US, is known as Silk Road. The Silk Road web page presented a host of illegal drugs, weapons, currency and hardcore pornography for sale. In order to preserve the total anonymity surrounding the trade that takes place on Silk Road, the only currency accepted on the site was Bitcoin. SPRING 2014
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A risk to legitimate business The dark web, and sites such as Silk Road, is not yet on the list of high priority threats facing today’s boardrooms; but it may be in the future. A growing marketplace is emerging; one in which trade can occur in an unregistered online location between two anonymous parties using untraceable currency. This marketplace is therefore the ideal setting for the sale of commodities that could potentially harm the business or reputation of legitimate organisations; including: • Counterfeit goods and pharmaceuticals • Samples, prototypes and recalled items • Commercially sensitive or stolen data including intellectual property, customer data, product specifications and software coding • Insider’ or ‘non-public’ information, affecting share prices • Information relevant to a pitch or proposal for business not available to all in the bidding process • Illegitimate software licences, unlocking software and computer game modification chips • Government or company identification. Robust and exercised internal and external controls are key to ensuring that a company does not ‘leak’ any product, IP or information which could be traded on the dark web.
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A strong physical security, cyber security and policy framework, supported by the right cultural drivers, can prevent such things falling into the wrong hands and making their way onto the anonymous dark web market. However, few companies fully understand their own online profile, increasing the risk that the organisation’s brand and reputation is being harmed by the online activities taking place in the dark web. This has led an increasing number of organisations to ask: “Are we a hit on the dark web?” ■ Alex Plavsic is Head of Investigations and Compliance and a Partner in the Forensic team at KPMG in London. Direct Line: +44 (0) 20 7311 3862 Mobile: +447710808969 Email email@example.com
Glossary Deep Web - Areas of the web not indexed by conventional search engines, mostly made up of libraries, archives, corporate intranets and Facebook posts. Also known as ‘Hidden Web.’ Dark Web - Areas of the Deep Web occupied by those exploiting its anonymity to conduct nefarious activities. Onion Routing - The name given to the layered encryption method that allows users to host and access the Deep Web. ‘Anonymity network’ software - Applications that allow a web user to browse the Deep Web anonymously. Bitcoin - A decentralised and digital money transfer system that allows for the anonymous purchase of goods and services online.
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Forensics Case Studies and Challenges Ray Evans of SRi Forenics highlights the challenges that a leading forensic expert can face Founded as a Private limited company in 2004, SRi Forensics is an independent image analysis and digital forensics company located in a secure facility close to the legal heart of Manchester. They provide a number of vital services to both sides of the Criminal Justice system. Flexible and innovative, they actively partner with companies that share their philosophy of â€œMaking Complex Evidence Simpleâ€? The need for objective image analysis Civil Authorities have long recognised the power of CCTV
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as a crime-fighting tool and have invested massively in the technology; consequently, the UK boasts the highest concentration of CCTV cameras in the world. CCTV evidence is useless unless it can be utilised in a court of law. The challenge lies in analysing often poor imagery in an accurate and objective manner, acceptable to the courts. SRi Forensics offers the ability to analyse this wealth of potential evidence and provide a credible expert opinion on the probative value of CCTV footage for use in identification using Facial Comparison (Facial Mapping) and other image analysis techniques.
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Injury depiction Medical explanations are often complex and difficult for juries to grasp. The job of simplifying medical scenarios and terminology often falls to medical illustrators. As qualified medical illustrators, SRi Forensics has great experience in converting medical information into anatomically correct and graphically appealing imagery. The rise of EPE Electronic Presentation of Evidence 'EPE' is the packaging of complex evidence from multiple media sources (including CCTV, video, audio, mobile telephone, internet, e-mail, documents, maps, plans, witness statements) into a more coherent, logical and easier to comprehend electronic format which can be viewed on multiple television or computer screens in a courtroom. The value of digital presentation of evidence in court as an important time and cost saver has long been recognised in the Criminal Justice system. Under the CPS National Framework, SRi Forensics is one of only a handful of recognised providers of this service to agencies such as the CPS and SFO. As pioneers in the use of Electronic Evidence Presentation Systems (EEPS), SRi Forensics has for years, worked closely with Criminal Justice Systems on large high profile cases in the UK and Europe. SRi Forensics offer a full Electronic Presentation of Evidence (EPE) service including; Courtroom Installations and Audio enhancement & analysis. All of our Forensic Solutions are supported by experienced technical staff, used to working in the court environment. Listed below are case studies that SRi Forensics have undertaken highlighting the challenges involved in solving problems on behalf of its clients. Death Row Appeal Case Challenge - SRi Forensics were approached by one of the largest and oldest criminal defence law firms in Florida, to give advice and an expert facial comparison opinion in a high profile, triple homicide appeal case. We were asked to assess and analyse old CCTV footage showing the brutal murder of a man and two women. Their client was allegedly, one of the killers. As the only Spanish national on Death Row, this case attracted much international publicity. Solution deployed - SRi Forensics had the credibility and expertise to prepare a full research supported affidavit from the UK and then deliver it under intense cross questioning from the State Attorney's Office in open Court. Case outcome - Those bringing the case to court were impressed enough to give a glowing citation. EXPERT WITNESS JOURNAL 24
Benji Waxman, partner and case lawyer said this about his work... "Ray Evans was very professional, easy to work with, and a formidable expert in the courtroom. He worked seamlessly with me from across the pond, through email, fax, and telephone, and delivered a detailed affidavit under a tight timeline. He provided me a wealth of background materials of which I was otherwise unaware. In court he was poised and articulate.." Murder injury depiction Murder of David Stuart Clarke Challenge â€“ David Clarke died after a seemingly innocuous blow to his jaw. Middlesbrough police wanted to show graphically, the injury inflicted prior to his death. The question was, how did this injury cause his death? Solution deployed - The shockwave from the jaw travelled up through the vertebral artery into the base of the brain, causing a rupture and subsequent bleeding within the skull cavity. To illustrate this, we worked with the pathologist and created a 3D model of the head and neck of the victim, showing the complex internal anatomy and how a simple blow to the jaw led to a subarachnoid haemorrhage. Case outcome - The perpetrator received a custodial sentence of 14 years for murder. Tragedy at Morecambe Bay Name of case - Operation Lund Solution deployed - Electronic Presentation of Evidence Challenge - SRi Forensics were approached by Lancashire Police to come up with a solution of how to present to a jury, this unprecedented case outlining the death of 23 Chinese Cockle pickers in Morecambe Bay. With over 10,000 pieces of evidence to collate and 'simplify', the case preparation took 7 months while the trial ran for 6 months, making it one of the longest and largest criminal prosecutions in the United Kingdom. The case was so large; we combined with two other companies to expand our capability. The use of EPE is estimated to have saved the public purse something in the order of half a million pounds and three months in court time. The court services manager, Robert Brookes said this about the EPE setup... "Court time has been significantly saved together with the associated running costs and expenses" With the conviction of the gang master Lin Liang Ren, the Chief constable of Lancashire gave well deserved thanks to the SRi Team when he wroteâ€Ś "I believe that this investigation is a testament to the strength that inter-agency partnership can achieve and have no hesitation in SPRING 2014
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including your staff in the comments of His Lordship Justice Enriques when he praised the professionalism displayed by all concerned in bringing those responsible to justice." Steve Finnigan, Chief Constable Lancashire Constabulary. Criminal Tribunal Challenge – Devise and deliver an application capable of organising and displaying geographical and time-based evidential data to a court as part of an international criminal tribunal. With over 400,000 items of evidential data to deal with, our existing tools and methods were inefficient. Solution deployed - Create and maintain a remotely deployed EPE system With our IT partners, Shaping Cloud, a bespoke application was developed that allowed prosecutors to examine and compare the evidence to be displayed to the courtroom during the trial, with the ability to record and annotate the evidential material as it was used. Information was presented as evidence discovery timelines, maps and walkthroughs showing the narrative of events. The application had to support live evidence enquiry requests on-the-fly and once displayed in court, all source documents were referenced and audited into court proceedings. Technologies This was achieved using technologies including Esri ArcGis WPF SDK, .net 4, Telerik WPF data controls and MS SQL Server.
About Ray Evans... Managing Director, Raymond Evans MAA, RMIP is acknowledged as one of the United Kingdom's leading practitioners in the field of Facial Photo Comparison or “Facial Mapping”. Ray has been successfully involved in high profile cases in the UK, Europe and the USA and has produced many hundreds of reports and statements. He is regularly called to give evidence in court as an expert witness in the field of Facial Identification. Originally trained as a Medical Illustrator, Ray worked in the Middle East for a number of years and then at the University of Manchester for over 17 years. Ray moved away from the University to concentrate full time on developing SRi Forensics, the company he founded in 2004. He maintains his academic ties with the University as an Honorary Research Associate in the Department of Psychology and as a visiting lecturer. Ray is currently also a visiting lecturer at Cranfield University and the University of Dundee. He regularly offers training in his specialist field and is actively championing standards in the field of Facial Identification through the Forensic Image Analysis Group (FIAG). Ray is active in a number of research areas, producing peer reviewed literature on facial comparison. His latest publication, a chapter entitled ‘Forensic Facial Comparison: Issues and Misconceptions’ is available to read in a new book, ’Advances in Forensic Human Identification’. A British Association for Human Identification (BAHID) collaboration, the book was published by CRC Press in January 2014 and is available through CRC Press website and Amazon. ■
Tel/Fax: 0161 374 3306 EVIDENTIAL PRESENTATIONS IMAGERY ANALYSIS FACIAL COMPARISON & IDENTIFICATION DOCUMENT MANAGEMENT COURT INSTALLATIONS COMPLEX EVIDENCE SIMPLIFIED INJURY DEPICTION & SANITISATION EXPERT KNOWLEDGE SRi Forensics is an essential resource when investigating and preparing your legal case. Our consultants have vast experience of the judicial process both in the UK and Abroad. Acting as we do for both sides of the Justice System, SRi Forensics are highly regarded as an independant e-forensics company. We add great value to complex cases by producing effective court presentation material in the form of electronic presentation of evidence (EPE.)
Empress Business Centre, 380 Chester Road, Manchester M16 9EA Mob: 07796 697 920 - email: firstname.lastname@example.org - www.sri-forensics.com
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Are Local AFIS/APIS Systems Needed and Cost Effective? HORIBAâ€™s PrintQuest Proves they are. Can your AFIS hit this?
Or even this?
The HORIBA AFIS can;
The re-structuring of back office functions, the constant need to reduce costs and the ever increasing demands on National AFIS (Automatic Fingerprint Identification System)systems means a local AFIS system, when used for screening volume crime in an efficient and effective way will assist in boosting detection and conviction rates in a cost effective manner. It is thought that 98% of crime is carried out by local villains; a local AFIS/APIS (Automatic Palmprint Identification System) system will speed up their identification. AFIS and APIS stand-alone desktop PC Systems are now available and are becoming very affordable while offering the same powerful tools as found on National/State/Federal systems and in many cases, higher accuracy. A stand-alone desktop PC System allows a police force to get full control over their own database, their own processes. The force can maintain a higher quality of cards entered into the database and can submit any latent it wishes, for search. While setting the action priority they want. HORIBAâ€™s PrintQuest system is rapidly becoming one of the most powerful tools for solving crimes that a force can possess. A proven low cost AFIS-APIS solution, PrintQuest is capable of importing and processing fingerprint and palmprint images from live scan devices, digital cameras, EXPERT WITNESS JOURNAL 26
and scanners along with remote networked workstations. A fully flexible system, PrintQuest is a complete system allowing an agency to construct and manage a local database of known fingerprints and palm prints and use this database for automated searching of latent fingerprints and latent palm prints. A stand-alone desktop PC or Laptop System is exceptionally useful for a department that routinely gets results from the National or State AFIS systems that indicate the suspect is someone arrested by the same department before. In cases like this having its own dedicated stand-alone system allows the department to save tremendous amounts of time, and money, between the investigation of a crime scene and the identification of a suspect. Indeed, a stand-alonedesktop /Laptop PC System also allows latent to latent hits, essentially linking crimes committed. During a search, PrintQuest compares prints using 3 parameters; the minutiae points themselves, whether the point in question is a bifurcation or an end point; the relationship of each individual point to its neighbours in space (both direction and distance); and most importantly, the skeleton or ridge flow of the print. This is what provides exceptional results. While most systems only search and compare the minutiae points of prints; PrintQuest includes the skeleton in the actual search SPRING 2014
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process. PrintQuest features High Accuracy AutoExtraction of centres, deltas, patterns, as well as minutiae points for unsurpassed user time savings on entry of prints. In PrintQuest, it is not necessary to place minutiae points on any ten print image. Auto-extraction allows PrintQuest to be useful by both the novice and expert alike. Collecting Palm cards along with Ten Print cards should be standard for every booking, not just for more serious case prints anymore. Research has shown 30% of crimes are solved with palm latent prints! Unfortunately most AFIS systems still do not have palm capability and if they do, many are unstable and unreliable since they use fingerprint algorithms to search palms. Standard with PrintQuest is the ability to work with palms just as it does with fingers. PrintQuest is easy, fast, effective and highly accurate through its use of a dedicated palm algorithm. The entire palm is searched every time, quickly and efficiently. PrintQuest requires LESS work for the user, and saves time. PrintQuest AFIS is an expandable AFIS solution. The system is modular; as an agency grows; the system grows with it, keeping up with the needs of the agency. PrintQuest can be configured on a single Personal
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Computer or Laptop with a database as small as 3,000 Ten Print Cards and be configured on a dedicated, rack mounted server with a database that numbers in the Millions of Ten Print and Palm Cards. All PrintQuest systems arrive as a complete package including Dell computer hardware, a flat bed scanner for 500/1000 DPI, laser printer, CDRW/DVD combo drives, APC-UPS, LCD monitor, keyboard, and mouse. Installation and training is included. Pre-loading of existing electronic cards is also available. A stand-alone desktop PC System also allows a department to identify aliases faster, searching ten print cards of arrestees against the database and getting results immediately. The HORIBA PrintQuest AFIS combines top accuracy with ease of use and low cost, an ideal combination in these days of restrictive budgets. The superior software achieves high selectivity due to its use of ridge skeleton information, auto extraction and full flexibility giving fast, high accuracy results. More hits in less time means more arrests and less backlog. â– Indeed a local AFIS/APIS system does improve detection and conviction rates and save money!
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Palynology and Mycology: Forensic Evidence from Soil, Clothing, Corpses, Carpets, Walls, and Food by Dr Patricia E J Wiltshire and Professor David L Hawksworth CBE Palynology and mycology may not be familiar to many involved in criminal investigations, but they have proved to be powerful weapons by providing key evidence leading to convictions in many cases of serious crime. On several occasions, palynology and mycology have provided the only forensic evidence and, in all those cases, the defendants were convicted. But what are these "ologies"? Palynology is the study of pollen, spores of all kinds, and other microscopic entities, whereas mycology is that of fungi. The two disciplines often go hand-in-hand, providing different evidential lines that serve as a test for each other, thus enhance each otherâ€™s value. They have proved of especial value where other trace evidence (e.g. fibres, fingerprints, footprints, DNA, gunshot-residues, other fragments and particulates) is lacking.
Pollen and spores can adhere to any object or material (such as clothing, footwear, hair, tools, and vehicles) with which they come into contact. Transference can occur by brushing against plants or leaf litter, or through contact with surfaces on which they are present. Soils and sediments are particularly important vehicles of transfer since so many pollen grains and spores eventually fall onto them and become incorporated into the deeper layers. There are huge numbers of different plant and fungal species existing in natural habitats (and in parks, gardens, and greenhouses), and their pollen and spores provide excellent proxy evidence for the place from which they were picked up. Furthermore, they can persist for years in most soils, and this means that they can reflect not only the vegetation as it is now, but also what it was like in previous
Main photo, crime scene in Hertfordshire with yellow markers. Small photograph Dr Patricia E J Wiltshire and Professor David L Hawksworth CBE by Commander Mark Harrison MBE on Saddleworth Moor Lancashire.
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Above Dr Patricia E J Wiltshire sampling soil, photograph courtesy of Humberside Police
years. In consequence, a pollen and spore assemblage provides a sensitive indicator of any specific location, and distinguishes it from others just a few metres away. Having examined many thousands of soil samples, we have yet to find two which have identical assemblages. The sensitivity of the approach can be illustrated by a case of rape in Wiltshire, where a young man claimed to have had consensual sex with a girl one night, in the middle of a public park. She claimed that he had raped her just a few yards from her home, under a large oak tree, in a strip of land which supported dense shrubs and trees. The putative rape site was only about 200 metres from the park and, since it would be very difficult to differentiate the soils of the two places from geological (mineralogical) analysis, police thought soil analysis would be unproductive. However, pollen and spore analysis of the footwear and clothing of both parties demonstrated that they had both trodden and lain on the ground in the wooded strip of land. The pollen profile indicated the wooded place rather than the park very clearly. The fungal spore profile gave highly specific information. Very few of the fungi, which were retrieved from the grass and soil samples from the park, were found on the couple. But there was an overwhelming number of fungal species found in the wooded area represented on both parties. Furthermore, oak pollen was retrieved from the victimâ€™s vagina.
In the murder of Sarah Payne, the palynological profile obtained from the dirty sweatshirt seized from Whiting, was similar to that of the vegetation growing in the field where she was buried. However, the forensic geologist carried out mineralogical analysis of the same garment, and found no trace of the gravesite. But the soil which had made the sweatshirt so dirty was a sub-soil picked up while the offender was digging the foundations of a garage. Thus, of course, it did not match the place where the body was found. But, pollen from vegetation at the burial site was subsequently picked up, and transferred to the already deposited soil on the sweatshirt. If the police had only used geological evidence, this important information would have been lost. Because the growth of some fungi is restricted to certain plants, they can provide secondary proxy evidence of those plants and, thus, support the palynological evidence. They may also have highly specific environmental requirements that are only provided at certain locations so they can provide information about the general nature of a particular kind of place. In one case, a gunman hid in a cypress hedge, and leaned against an oak before shooting a man in front of his wife and daughter. The cypress plants in the hedge were very shaded by the oak tree, and were later found, through analysis of the hedge litter, to be diseased with the fungus Pestalotiopsis funerea. The pollen profile obtained from a balaclava, footwear, and vehicle belonging to the offenders, was certainly similar to that from the vegetation and soils at the crime scene. The original getaway car had been burned out, and the offenders transferred to the car that was eventually seized and analysed. It was particularly
As well as providing excellent trace evidence, and linking objects, people and places, palynology and mycology have, amongst other things, been successful in the following: locating hidden human remains; establishing times of deposition; differentiating kill sites from deposition sites; eliminating irrelevant locations and implicating others; confirming or negating testimony; provenancing sources of objects and materials; identifying food in guts of corpses; and identification of poisonous plants and fungi ingested by the deceased. EXPERT WITNESS JOURNAL 29
Above, Professor David L. Hawksworth CBE, analysing samples, photograph courtesy of Dr Patricia E. J. Wiltshire.
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interesting that the pollen profile of that second vehicle was so similar to that of the crime scene, and specific markers demonstrated the fact. There were also pollen grains that represented plants that could never have grown at the site; it was realized that it had been derived from soil and debris brought in to fill-in potholes. This meant that the crime scene presented a highly specific and mixed profile, and this was reflected on the exhibits taken from the suspects. It was pertinent that spores of Pestalotiopsis funerea were retrieved from the vehicle, both from the foot wells and the seat. The presence of the spore on the seat was added evidence that they had been picked up from the hedge since it is unlikely that the driver of the car had lain on the ground.
Forensic and Environmental Palynology and Mycology
Contact the experts to explore how pollen, spores, and other plant and fungal fragments may assist in defence, prosecution, and insurance cases
Dr Patricia E J Wiltshire BSc, DSc (hc), MFSSoc, FLS
Professor David L Hawksworth CBE BSc, PhD, DSc, FHd (hc), CBiol, FSB, MFSSoc, FLS
In another case, searching for the place of deposition of a corpse in western Scotland, spores of the smut fungus Ustilago echinata were found in the suspect’s car. This fungus occurs as a parasite on aquatic grasses Glyceria and Phalaris, and had only been found in Scotland twice before, in 1943 and 1999. These plants were not common in the area, and were hidden by overhanging grasses, but their presence, with that of the rare fungus, and the rest of the diverse range of pollen grains and plant spores, strengthened the evidence that the suspect had been in that place. In another case of aggravated burglary, the victims ran a small business in re-cycling wood trimmings from estates. They also kept a range of wild waterfowl, and caged birds. The timber came from a wide variety of sources and included many exotic trees species. The pollen profile on the suspects, and in their vehicles, was very similar indeed to that of the crime scene, and it included not only the exotic trees, but also species found in wild bird food. The highly distinctive spores of the fungus Testudina terrestris, a species associated with exotic coniferous trees, only otherwise previously reported in the UK from the Royal Botanic Gardens Kew, was one of several spores linking the three suspects with the crime scene. In the case of both pollen and spores, in addition to the specific mix of plants and fungi making up the pollen and spore assemblages, it is often the rarities that are of particular evidential value. Actively growing moulds can also yield key forensic evidence. Pathologists and scene of crime officers are inclined to dismiss colonies of moulds growing on corpses, or on the objects and materials associated with them. The moulds are often disregarded and washed or brushed away dismissively. But some officers have been struck by them and speculated as to whether they could be an additional source of evidence. Having now been asked to assist in several cases, we have found that the nature and sizes of mould colonies on corpses, and other human remains, can be used to EXPERT WITNESS JOURNAL 30
● Trace and contact evidence ● Site location ● Site elimination ● Time of death ● Cause of death or poisoning ● Soil analysis ● Gut contents ● Approach paths ● Identification ● Lecturing and training ● Surrey based ● UK & overseas cases ● Mould growth in buildings, on materials and food ● Bioindication of air pollution
Contact us by e-mail: email@example.com or firstname.lastname@example.org or Telephone: [+44] (0)1372 272087
calculate post-mortem intervals. Fungi tend to form circular colonies and grow at particular rates, determined primarily by the availability of moisture and temperature. The rates at which species grow vary tremendously; some can form a colony 5 cm across in a couple of days, while others might take months to attain the same size. It is critical, therefore, that the fungus is identified precisely. Nevertheless, even if the identity of a species is unknown, samples can be recovered from human remains, or other materials, and grown in a laboratory under similar conditions. Extrapolation of the observed growth rates allows an estimate of time. This was achieved in a case of a murder in Dundee. Fungal growths on samples of carpet soaked in body fluids were replicated on squares cut from the same carpet. Accurate measurements of growth rates resulted in an extrapolation which proved to be an accurate estimate of the time of the offence. This was confirmed by other means by the police later. In a recent case of severe neglect which resulted in the death of a child, the defendant’s testimony was contradicted by identifying and measuring fungal colonies on cooked food which had been left on plates and in bowls. When any mould growths are encountered in criminal investigations, whether in the mortuary or at crime scenes, they should never be summarily cleaned away, but treated as a possible additional source of evidence.
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Mould growths in damp buildings are well recognized as a health concern, but the sizes of colonies can also be important. For example, the dimensions of colonies on walls can indicate the time since the start of water ingress. This is often of major importance in insurance claims when liability has to be ascertained. The outcomes of insurance claims often depend on the time a building is unoccupied. Policies often stipulate the length of time allowed for buildings to stand vacant, and it is common for people to claim times fraudulently. It is imperative for the mycologist to establish the species of fungi actually growing on damp walls, or other materials, rather than simply present as spores. In this case, measuring spore concentrations in the air is a worthless exercise since their presence does not necessarily mean they are growing and producing spores in situ. This can only be known by taking direct samples of the growing fungus. Some mould growths, such as Cladosporium cladosporioides, form blackish growths and stains, and that species is ubiquitous on damp plaster, and around baths and showers that are not assiduously cleaned. It is innocuous and poses little risk to health when moderately controlled. However, some other surface moulds are a major concern
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for human health. Aspergillus fumigatus can invade lungs with fatal consequences, and a chemical race of Stachybotrys chartarum, forms volatile compounds which includes one of a group of chemicals developed as an agent of biological warfare. Negligence by landlords or parents can lead to criminal proceedings. Between us we have provided evidence in around 300 cases over the last 20 years, some quite different from those touched on, for example indicating where in the world a sample of clothing or packaging had been, and provenancing the place of manufacture of falsified pharmaceuticals. And pollen and fungal spores can assist in wildlife crime investigations, such as the illegal animal trade. â– For further insights into these too-little used, yet so powerful, evidential approaches, see Wiltshire (Forensic Science International 163: 173â€“1821, 2006) and Hawksworth & Wiltshire (Forensic Science International 206: 1â€“11, 2011).
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The Application of Forensic Science in Sexual Offences by Ethos Forensics The first sexual offences statistics joint bulletin, "An Overview of Sexual Offending in England and Wales", was published in January 2013 by The Ministry of Justice, Home Office and The Office for National Statistics. On average each year in England and Wales, eighty-five thousand women are raped and four hundred thousand are subject to sexual assault. These are the reported crime figures and it may be impossible to gauge the levels of unreported sexual assault incidents. These statistics fulfill one of the many recommendations of The Stern Report of 2010; a comprehensive investigation into the response to rape complaints by the relevant agencies, detailing recommendations to reduce the attrition rate in sexual offence cases and to improve policy and procedure. In a lecture to Sheffield Hallam University forensic science students, Sue Carney, Forensic Consultant for Ethos Forensics, emphasised that sexual assault scientific interpretations are amongst the most complex and difficult interpretations faced by forensic scientists. Why is this and what are the forensic issues in sexual assault cases? In many forensic scenarios much of the evidence is timedependent. This is particularly true of sexual offences
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casework. Biological evidence deposited on the body or inside a body orifice during sexual activity persists for a limited time, and loss is accelerated by activities such as washing or bleeding due to injury or menstruation. It’s vital that the forensic medical examination of both complainant, and suspect if there is one, is carried out effectively and at the earliest opportunity to maximize the recovery of trace evidence. The Faculty of Forensic & Legal Medicine of the Royal College of Physicians publish guidelines for the collection of forensic specimens in sexual assaults in conjunction with the Forensic Providers and the Association of Chief Police Officers. These are updated regularly, based on current best practice, and offer some degree of standardization although variations in procedure and in the provision of appropriate sexual assault referral centres still remain across the UK. It is certainly not reassuring to perceive the potential outcome of a sexual assault investigation as little more than a post code lottery, but there are other factors at work here. Much of the information gleaned at the complainant’s forensic medical examination is invaluable in determining the most appropriate forensic strategy in the case. It is the forensic scientist, in conjunction with the police force’s
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forensic submissions or scientific support department who will make these decisions. Information at the time of setting the forensic strategy is key in assessing the potential outcomes of the laboratory examination of exhibits and indeed, in determining whether the suggested examinations would be worthwhile. In order to assess a case in this manner, the forensic expert uses an interpretive framework based on three principles: Interpreting the evidence by conditioning on the information associated with the case, the conditioning information; Considering the evidence in the light of at least two competing scenarios or versions of events representing the views of the prosecution and the defence; And, considering the likelihood of the evidence rather than the likelihood of the versions of events. Such an approach leads to an evidential interpretation that is balanced, logical, robust and transparent. Forensic experts have long since realised that their remit must never extend to the provision of expert opinion on matters of guilt or innocence of a defendant. To offer such opinion would commit the â€˜prosecutorâ€™s fallacyâ€™ and forensic experts know that the question of guilt versus innocence is purely the realm of the jury. However, this doesnâ€™t halt the popularity of the common misconception that forensic experts deal in â€˜proofâ€™. They do not! The forensic evidence provides additional information to be used by jury members to update their opinion of guilt or innocence (the prior odds) in order to modify their opinion (the posterior odds) taking the value of the evidence into account. The forensic expert presents their evidence in the form of a level of support for a particular view and very rarely, if ever, as conclusive proof. Rulings of The Court of Appeal in some of the earliest cases using DNA evidence, such as that relating to Regina versus Doheny and Adams ( EWCA Crim 728], clarify the role of the expert witness in such matters. Forensic science interpretation addresses case issues using a â€˜hierarchy of propositionsâ€™. For example, addressing source level might consider from whom semen staining found in a sexual assault case has originated, whilst activity level in the same case might seek to address the issue of whether the defendant engaged in sexual activity with the complainant. In most sexual assault scenarios, addressing issues at activity level is of much more value to the criminal justice process. However, questions surrounding activity level require consideration of the issues surrounding the transfer and persistence of evidence: How was the semen deposited and does it relate to the alleged incident?
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The laboratory testing processes used in the identification of biological evidence have limitations that must be taken into account during the forensic interpretation of a sexual offence case. Many of the chemical tests for body fluids are not specific to those body fluids, giving rise to the possibility of false positive results. This is often compounded by the fact that some body fluid stains may not be readily visible and chemical testing is often used to screen and locate areas of staining. Forensic experts are well aware of the limitations of these tests and must take into account other factors such as the location and distribution of staining and the potential for the presence on exhibits of material from unrelated sources. Again, case conditioning information is key in addressing these concerns. The sensitivity of some body fluid tests is another issue to contend with. If biological evidence is dilute or mixed with another substance then some of the less sensitive chemical tests may fail to detect it. The test for saliva is a case in point here. It is presumptive, so false positives are an issue, it is not particularly sensitive and the chemical reaction itself takes time to develop. These conditions, coupled with the fact that a small proportion of the population are non-producers of the component of saliva that this
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Above - Microscopic image of sperm chemical test reacts with, mean that forensic scientists must exercise caution in attributing particular results to the presence of saliva. Furthermore, an apparent absence of saliva can never be definitive, and as a general rule, an absence of evidence does not necessarily support a view that a particular activity did not take place, since there might be other legitimate reasons for that absence. This is especially true of rape scenarios. An absence of semen on intimate swabs does not refute the allegation, since itâ€™s possible that rape occurred without ejaculation, or that a condom was worn. There are, of course, confirmatory tests available for some, but not all, body fluids. Some of these are complex and rarely conducted, such as the crystal tests used as confirmatory tests for blood. Since blood almost always has such a distinctive appearance, it is considered sufficient that if a stain looks like blood and gives a reaction to a presumptive test, then it can be interpreted as being blood. Others are far more routine. For example, the identification of spermatozoa (sperm cells) by microscopy, is almost always definitive in establishing the presence of semen, since sperm are extremely unlikely to have originated from anything else. However, this is not without its complications. Human sperm exist in a variety of subtlety different morphologies and such variation in appearance may give rise to difficulties in identification. When viewing a microscopic sample, one is visualising a two-dimensional image of a three-dimensional structure. If a sperm cell is rotated within the field of view, it may not be instantly recognisable. This might be an issue if a sample contains very low numbers of sperm, due either to a delay in retrieving the sample or an individual having a low sperm count, and of those observed, some are not readily identifiable. Another consideration in this circumstance is the fact that sperm cells can be transferred to clothing items in the washing machine. Again, case EXPERT WITNESS JOURNAL 34
conditioning information is vital in the cautious interpretation of such findings. If an exhibit has been seized from a washing machine, the forensic expert must question the chance of transfer of sperm from a semen-stained item in the same wash before attributing those sperm cells to the presence of semen on the exhibit. At the extreme end of the spectrum of limitations of body fluid testing, there are some body fluids for which there is no chemical test, presumptive or confirmatory, currently validated for forensic use. Vaginal secretions are a particularly relevant example. The existence of a reliable and specific test for vaginal cells would greatly enhance the degree of forensic interpretation possible in rape cases. Currently, the cells shed from the lining of the vagina, known as epithelial cells, can be visualized microscopically. But these are largely indistinguishable from epithelial cells from the lining of other body orifices. Saliva is also a good source of epithelial cells, and this, coupled with the fact that in some circumstances, vaginal secretions can indicate a false positive in the presumptive test for saliva, is inevitably problematic in interpreting the outcomes of testing penile swabs in allegations including both oral and vaginal intercourse. Current research being conducted at several academic institutions, most notably, the University of Huddersfield, seeks to address this issue using a system to characterise specific RNA molecules within various body fluids and tissue types. RNA is a nucleic acid, similar to DNA, that is produced by cells when genes are switched on. The rationale is that different tissues within the body, given their different functions, will have different requirements for actively used genes. Therefore, the pool of RNA molecules within a particular cell type should be specific for that particular tissue type. If this research can develop a specific test for each body fluid, especially vaginal cells, and such a test were relatively straightforward to conduct, then this would offer significant advances in the forensic interpretation of body fluid findings in sexual assault casework. The issues in sexual offences casework have demonstrated the importance of case conditioning information for effective forensic interpretation. There are usually three main sources of information in a sexual offence case: The complainantâ€™s interview transcript, the notes from the forensic medical examination and the statement or interview notes relating to the suspect. From these, the forensic scientist may be able to establish much of the conditioning information required for interpretation. However, some parts of the conditioning information may never be established simply because the information is unavailable or unknown. For example, in a drug facilitated
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sexual assault, the complainant may not have a clear recollection of the alleged sexual activity due to intoxication or unconsciousness. Whilst some aspects of such cases may need to be dealt with in an investigative, rather than an evaluative manner, it is also clear that some flexibility must be built into the forensic interpretation of evaluative cases, to allow for uncertainties in the conditioning information. This is another reason that forensic opinion is rarely provided as definitive proof.
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Elemental, My Dear Watsonâ€Śâ€Ś An overview of the complementary disciplines of gunshot residue analysis and forensic firearms examination They are rare species in the UK; experts who are specialised in the recovery, identification and interpretation of gunshot residue (GSR) and those who can interpret shooting related crimes scenes. The majority began their careers at the Forensic Science Service (FSS) and underwent rigorous training before being able to report the full range of gun crime casework. The number of competent experts active in both disciplines in the UK can now be counted on two hands, the majority being employed by the police or commercial forensic providers who work predominately for the prosecution. There are very few who have a proven track record in providing their services to the defence. In the last couple of years The Forensic Firearms Consultancy (FFC) Ltd. has tried to redress the balance.
EXPERT WITNESS JOURNAL 36
When a gun is fired the hammer strikes the percussion cap at the base of a cartridge. The primer detonates and sends a stream of hot gases into the main charge of propellant, which ignites, generating large volumes of gaseous products, which force the projectile down the barrel of the gun. The high temperature inside the cartridge creates conditions in which the individual components of the primer can fuse together. These particles are emitted from the end of the barrel of a gun and from any gaps or openings in the gunâ€™s action and can be deposited on the firer, any persons sufficiently close to the firer, and the gun itself. After the material has cooled discrete particles remain containing combinations of the elements of the original primer and contributions from the gun barrel, cartridge case and the bullet. The recovery and identification of GSR on clothing or hand samples can
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help address questions such as, “has the suspect fired a gun?” GSR is not a conclusive evidence type such as DNA or fingerprints. It is a corroborative evidence type but the usefulness of GSR should not be underestimated as its presence or absence in crimes involving firearms can be crucial to the overall strength of evidence when a case comes to trial. It is rarely contested that GSR originates from a firearm. What is of far more interest is how the particles came to be present on a suspects clothing, skin or hair. This can only be evaluated within the full circumstances of the case taking into account both the prosecution and defence hypotheses. The type of firearm and ammunition used in the crime is also important information to the GSR expert as it can have an impact on the amount of GSR that may be deposited onto the suspect or their surroundings. GSR is one of the most heavily scrutinised trace evidence types in criminal investigations and the expert must ensure that police officers, solicitors, barristers and ultimately the court understand the strength of the evidence. With any trace evidence the possibility of cross-contamination should always be uppermost in the mind.
One of the many recent cases that FFC Ltd. have been involved in was that of the Glasgow gangland murder of Kevin Carroll in 2010. A single particle of GSR was identified on a jacket recovered from the home address of the suspect more than six months after the shooting. The address had been searched by armed police officers that were likely to be contaminated with GSR. The prosecution expert stated that a lack of information about the source of the particle precluded saying anything more about how the particle was deposited however after hearing both the prosecution and defence evidence during a voir dire the judge ruled the particle inadmissible as evidence citing the possibility that it arrived on the jacket through secondary transfer from the firearm’s officers clothing. Numerous studies for the presence of GSR on armed police officers, their vehicles and equipment, police officers not associated with firearms and occupational environments have found that sources of contamination do exist. Reporting an unqualified finding of the presence of gunshot residue can ultimately mislead the court. With the fragmentation of the provision of forensic science in England and Wales and the creation of a commercial
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FFC offers bespoke, customer-led solutions to all firearms and GSR-related investigations. Forensic Firearms Consultancy (FFC) Ltd is an innovative company led by two world-renowned experts. During their time at the UK Forensic Science Service (FSS), Mark Mastaglio and Angela Shaw became the most senior scientists working in forensic firearms and gunshot residue (GSR) respectively. It is the only UK-based private consultancy offering this level of expertise, experience and worldwide reputation in firearms and GSR. FFC can undertake work at every level of forensic firearms and GSR examinations and has extensive experience of complex, sensitive cases from across the globe. The FFC directors are two of the most senior and experienced practitioners in the UK, with over 35 years of firearms and GSR court reporting experience. FFC’s Expert Witness service includes: ❖ Examination of the full range of cases, from the alleged illegal possession of firearms and ammunition to complex interpretation of fatal shooting incidents ❖ In-depth knowledge of firearms legislation involving complex classification issues – an insider’s knowledge of firearms law policy ❖ Civil or criminal case investigation ❖ Court attendance ❖ Potential for accidental discharge ❖ Trajectory reconstruction analysis, including scene visits ❖ ❖ ❖ ❖ ❖ ❖
Determination of the type of gun used Determination of how many guns used Range of fire determination Interpretation of autopsy findings, including autopsy examination attendance Interpretation of GSR findings (incorporating SEM-EDX results) Critical analysis of GSR contamination issues If you need immediate advice, please contact either Mark Mastaglio on +44 7919 217 848 or Angela Shaw on +44 7919 392 397. Otherwise please email us at: firstname.lastname@example.org. Our website is at: www.forensicfirearmsconsultancy.com
EXPERT WITNESS JOURNAL 37
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market place for the procurement of forensic services it is becoming all too common that information regarding the firearm and ammunition and the results of any scene interpretation is not shared amongst the prosecution experts. It may be that the GSR work is carried out by a commercial Forensic Science Provider, the crime scene analysed by the investigating police force and the work to determine how many guns were fired is undertaken by the National Ballistics Intelligence Service (NABIS). Prior to the closure of the FSS best practise dictated that firearms and GSR experts would normally have carried out the examination of the clothing of gunshot victims jointly, to ensure a joined-up approach to establishing the circumstances of a shooting. Now, it appears to be that the clothing is examined independently by the respective experts, decreasing the opportunities for the two complementary disciplines to share knowledge and discuss the findings in real time. The complementary expertise of the firearms forensic scientist also assists in the interpretation of firearms related scenes of crime where guns have been discharged. The firearms expert can determine not only how many guns were used but the type, whether or not ammunition components such as bullets and cartridge cases had been fired or even loaded into a given gun, together with the
accuracy and propensity of the gun to discharge inadvertently. The GSR and firearms experts work in tandem in establishing a range of fire – a crucial consideration when considering homicide or suicide or suggestions of a gun being fired during a struggle. The accuracy of a gun and the position of the bullet impact site may have a bearing as to whether or not the shooter had any intention of inflicting injury or death. Reconstructing bullet trajectories is very much within the remit of the firearms expert; such work can be vital in determining the position and possible intention of the shooter, as the trial of Oscar Pistorius amply demonstrated. Harnessing the latest in laser scanning technology can enable crime scenes to be reconstructed showing the potential trajectories. The resultant computer aided animations of scenes can be invaluable in explaining to a court what was possible and equally importantly what was not possible. They may be a rare species, the competent GSR and forensic firearms expert, but at the Forensic Firearms Consultancy Ltd. there is no chance that they will become an endangered one! ■ Angela Shaw and Mark Mastaglio © The Forensic Firearms Consultancy Ltd 2014
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CAHID awarded Queen's Anniversary Prize for Higher Education The University of Dundee’s Centre for Anatomy and Human Identification has been awarded a prestigious Queen’s Anniversary Prize for Higher Education. Presented in recognition of `world class excellence’ the Queen’s Anniversary Prizes are among the most highly regarded awards for the UK’s universities and colleges.
training and pioneer new surgical techniques. This award is deserved recognition for Sue Black and each and every member of CAHID’s staff.”
CAHID, which is headed by Professor Sue Black, is one of the world’s foremost institutions for the study and application of human anatomy, forensic human identification, disaster victim identification and forensic and medical art.
CAHID is pre-eminent internationally through its work in forensic human identification, where staff have worked on high profile cases both at home and abroad. It has developed new techniques, including identifying perpetrators from images of their hands in photographs, that have led to successful prosecution in a significant number of cases of child sexual abuse.
“This is a tremendous honour and testament to the hard work of all the staff, and indeed the students, who have worked in the Centre,” said Professor Black. “Ours is a relatively short history, but in that time we have made great strides forward and the work that comes out of this Centre has significant local, national and international impact.” “We have also been fortunate to enjoy great support both from within the University and from external partners and agencies.” Professor Pete Downes, Principal and Vice-Chancellor of the University, said, “The range of CAHID’s impact, from the face of Richard III to the victims of the Asian tsunami and to the work to help gain convictions of sex offenders, is truly amazing. The bold introduction of Thiel embalming of human bodies will revolutionise surgical
The Centre has devised and implemented the world’s first training programme for police officers and professional experts in Disaster Victim Identification (DVI). This was established in response to major events such as the Asian Tsunami, the London bombings and the Sharm-El-Sheikh bombings. The training programme has helped build a crucial response capability to major disasters. CAHID is also a partner in the creation of the FASTid system that has been adopted by Interpol. CAHID is recognised as an international leader in craniofacial identification and forensic facial reconstruction for the identification of the living and the dead, the latter more recently including King Richard III. The Centre’s work has also rejuvenated the study of human anatomy and its application in teaching, training
Main picture Police officers being trained in disaster victim identification EXPERT WITNESS JOURNAL 39
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A new mortuary is under construction to facilitate Thiel embalming and so enhance and widen opportunities for surgical training, research and product evaluation.
Above Comparison of features on thumbs, as used to help identify offenders from photographs. Above right Facial reconstruction of Richard III.
and research. For example, the introduction of the Thiel ‘soft fix’ method of embalming produces lifelike flexible cadavers that facilitate the development of new surgical procedures and approaches, new devices and more realistic training. This is the only centre to adopt this approach in the UK. It is one of the few places where students still do full body dissection of human cadavers, and the only facility in the UK to use Thiel soft fix cadavers in teaching, surgical training and research.
Exciting developments are the use of Thiel cadavers in a range of research projects, as well as product development and validation; the establishment of national training workshops to enhance surgical skills training; and the establishment of a clinical anatomy research lab with a national and international reputation. Their research covers a number of areas including: • Analysis of bone growth and development by looking at the trabecular organisation of the developing sacrum and scapula. • Analysis of superficial vein patterns. • Arterial supply of the sciatic nerve, including the pattern of vasculature in the pelvis, gluteal region and thigh. • Morphology of the glenoid and acetabular fossae, including the labra. • The morphology of the coracoacromial ligament. • The effect of Thiel embalming on tissue structure. ■
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University of Dundee 7KH8QLYHUVLW\RI'XQGHH·V&HQWUHIRU Anatomy and Human Identification is one RIWKHZRUOG·VIRUHPRVWLQVWLWXWLRQVIRUWKH study and application of human anatomy, forensic human identification, disaster victim identification and forensic and medical art.
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EXPERT WITNESS JOURNAL 40
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The Future of Forensic Science with Hindsight by Robert Green, Forensic Science Society The future of forensic science must learn from the past and acknowledge the risks associated with a more fragmented landscape to ensure the discipline continues to meet demand and benefit from investment and research, according to Robert Green. It is now almost 23 years since the dawn of ‘agency status’ which, apart from other things, incentivised the financial landscape we now see forensic science operating within. I have taken a look at some of the earlier developments leading up to the period of ‘flux’ in the delivery of forensic services. To some of course this journey will be well understood, whereas to others a summary of what has gone before may be helpful in preparing and appreciating the future. It would be misleading to suggest that the future will be merely an extension of the past. Without a doubt the way in which forensic services are currently provided is, in some respects, quite different to the (recent) past. I would like to start by recalling the advice of Dainton (1993) and the Royal Commission on Criminal Justice. Some may know this as the Runciman Review which began its work in 1991 following issues of quality and service provision. Mindful that there have been a number of reviews since, I hope to focus on just a few of the issues identified in the report whilst at the same time trying to offer a personal opinion on how history has played out and what this might mean for the future.
EXPERT WITNESS JOURNAL 41
To illustrate the point, I was recently reading an article from ‘Time Out’ published in 1995 at the time of the merger between the Metropolitan Police Forensic Science Laboratory and the Forensic Science Service. The headline warned that this merger could affect the detection of crime and experts were warning that a new look forensic department might make things less efficient; is this what we saw? More recently, similar articles based upon the closure of the Forensic Science Service have, as many will know, attracted similar headlines. Mindful that merger and closure may lead to very different market dynamics it would be fair to say that the 1995 predictions did not come to fruition. Taking into account what economic theory tells us on risk, uncertainty and profit some might nevertheless be wary of the potential of externally provided forensic services. Moving ahead there appear some recurring themes which might challenge our current thinking on the perception and outlook of forensic science in the years ahead. In particular, Lord Dainton made reference to the conceivable perils of the ‘free’ (forensic) economy pointing to some concerns we could reflect upon. What the fates have in store are not yet fully formed although, some might suggest, disquieting themes have begun to emerge. SPRING 2014
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Selective examinations Having lived through the process, it goes without saying that the early 90’s did see an initial constriction of submissions due to the new budgetary constraints. In retrospect this may not have been too unwelcomed given the build-up of cases and service levels experienced by some. Financial modelling based on full cost recovery and unit cost efficiency measures did drive performance and reduce turnaround times of course (as one might have anticipated). Could this have been achieved any other way? Would we have experienced the significant increases in productivity in a purely public sector environment? After a time, the market and service levels did reach a degree of equilibrium and hopefully this will be seen in the years ahead. A more developed understanding and perception of ‘selectivity’ could perhaps be linked to what the committee reported almost 21 years ago. To be fair, selectivity had for many years, been performed within the laboratory setting. One might wonder if, when applying the tenets of selectivity, whether this will be predisposed toward the prosecution viewpoint. In truth, what would incentivise (hard pressed) prosecution agencies to submit and pay for scientific examinations which do not appear to support the prosecution hypothesis? As agencies focussed on bringing offenders to justice do we fully understand selectivity from the perspective of the defence? It would be really unfortunate to see any miscarriages based upon inappropriate selectivity and feel persuaded that non-submission will not have escaped the attention of the defence. Thankfully several other perils did not appear to be particularly widespread. First amongst these is the emergence of unreliable and questionable practitioners appearing in the private sector. Professional accreditation Mercifully history did not reveal a predominance of what were termed ‘cowboy’ practitioners operating in the private sector. Perhaps the Counsel for the Registration of Forensic Practitioners – CRFP in its eight years of operation may have influenced this. Needless to say the issue of Accredited Forensic Practitioners is a topic very close to the heart of the Forensic Science Society. The professional body has worked hard to promote continuing professional development and competence. The society promotes this through Accredited Forensic Practitioners and other levels of professional membership. Working alongside the Forensic Regulator, the society sees itself as providing a level of independent reassurance across forensic disciplines operating both within the Service and across many other aspects of forensic science provision. The topic of ‘DIY’ forensic science undertaken within the EXPERT WITNESS JOURNAL 42
police service was raised in 1995 and has been a recurring theme since then. Needless to say many of the functions associated with biometry and criminalistics have been delivered successfully by the Police Service for many years and there is little to suggest that this will not continue. In reality, many of these techniques were created by the police themselves and so to presume that forensic recovery and science does not have a home within the Police Service appears to be illogical and pointless. The real issue appears to be where the moving line between criminalistics and other forensic service provision is drawn - essentially how much and when? What seems clear is a desire to in-source and this will clearly influence the investment decisions of the stakeholders. This does of course link to another of Dainton’s observations concerning investment and how the market will develop and mature and how this will play out is yet to be fully realised. Case fragmentation At a recent conference I was left rather disappointed to hear of the instances of fragmentation between and within cases. Surely this cannot be good for the criminal justice process, suspects and above all victims? Reflecting on the practical difficulties and risks associated with this I did wonder how this was being managed and at what (perhaps hidden) cost? Without wishing to comment upon the rights or wrongs of any particular procurement model I was nevertheless very depressed to witness at first hand the level of uncertainty which appears to exist amongst forensic professionals. Without doubt many have worked hard to promote professional competence but wonder if we might take an honest and candid look at the position we now find ourselves in. I would suggest that we should take some counsel from history when planning the way ahead. The past appears to warn us repeatedly against the dangers of fragmentation and perhaps a freezing out of the defence perspective from the impartiality of forensic science. What is clear from looking back over time is there have been several forewarnings to keep these risks under review and I hope I have provided some food for thought. To conclude by returning to the theory of ‘economic liberalism’ it is accepted that organisations do not often know the entirety of the economy in which they operate. Nevertheless providers of forensic services do need a full understanding about production and investment and the markets demands that are relevant to it. I wonder if a review of our corporate knowledge might help this in someway. ■ Robert Green OBE is an Honorary Secretary of the Forensic Science Society and Director of Forensic Science Undergraduate Studies at the University of Kent. SPRING 2014
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An Overview of Forensic Dentistry by John Rosie, Forensic Dentist, Secretary of the British Society for Forensic Odontology The past forty years have seen significant developments in the discipline of Forensic Dentistry and its application within the legal process. Today Forensic Dentistry is generally accepted as being a scientific discipline dealing with matters outside everyday clinical practice and in most cases criminal activity or overwhelming natural forces are a feature of the case The first example of Forensic Dentistry being recorded was around 15-59AD. Agrippa, fourth wife of the Emperor Claudius, was not able to recognise the head of his alleged lover Lollia Paulina when it was delivered to her. It was only by opening the mouth that she recognised her victim by a distinctive discoloured tooth. Since then Forensic Dentistry has evolved into its present format including sub-division into six distinct specialities. There are; 1. Identification of human remains by reference to the teeth and ante-mortem dental records. Society has a duty to identify the dead not only for legal and social reasons but also for the dignity of the deceased. In some cases, for example incineration or extensive decomposition, the use of DNA is inappropriate. In these cases teeth are valuable as forensic aids in the identification process because: • They are the least destructible part of the body • They follow a chronological/sequential development pattern • They can provide both pathological and therapeutic information about the deceased • They can provide racial information about the deceased • Existing fillings and dental work can provide unique information about the deceased
EXPERT WITNESS JOURNAL 43
Two categories of identification of human remains are recognised.
Above- Incinerated human remains - positive identification established
Open cases - the identity of the deceased is completely unknown. For example incinerated human remains are discovered with little or no circumstantial evidence. The identification process is reliant upon a reconstructive approach. This involves determination of the age, sex and race of the deceased so that a profile of that person can be adduced. Once established this profile can be presented as an “aide memoir” to a wide public audience by means of press or television coverage. This frequently acts as catalyst to jog memories and can elicit the disclosure of the names of persons whose whereabouts are unknown. It is not always the case that the names of these persons are known to the Authorities as being missing. In some cases it may be possible to create a facial reconstruction of the person using either wax or electronic software. In cases where extensive incineration or decomposition has occurred the determination of sex can be problematic. There are recognised differences between the anatomy of male and female skulls. The skull may be disarticulated with loss of the mandible but in most cases useful information can be gleaned from the anatomy of the skull to facilitate sex determination. To assist in the determination of race morphological features of the teeth can be helpful. Broad spatulate incisors (shovel shaped) are recognised as a Mongoloid SPRING 2014
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trait, Cusps of Carabelli (an extra cusp found usually on an upper molar tooth) as a Caucasian trait and multi-cusped lower premolars (tuberculated) as a Negroid trait. Certain habits and occupations may leave a permanent mark on the dentition. Notching of the upper incisor teeth has been frequently described in hairdressers who may habitually hold hairclips between the teeth before transferring them to their client’s hair. Typical tooth wear may also occur in trades as carpentry or where the craftsmen may hold may hold nails between the teeth before transferring them to the site of application. The teeth of wind instrument playing musicians may exhibit wear reflecting the shape of the mouthpiece.
Above- Portable hand held "NOMAD" x-ray unit
Radiographs are used to assist with the determination of age. The availability of hand held portable X ray machines using digital sensors has revolutionised the capture of radiographs in locations such as mortuaries where X-ray facilities are traditionally unavailable. From the radiographs it can be determined whether developing teeth are present indicating the victim to be younger than around 24 years of age. If this is the case radiographs of the teeth can be compared against published datasets of developing teeth to determine the chronological age of the deceased. Should the radiographs show dental development to be complete, usually around 24 years of age, histological techniques are available to determine the amount secondary dentine present at the tip of the root of the tooth (root dentine translucency). Comparison against published datasets can then used for age determination using a process of regression analysis. Other dental factors, such as wear of teeth and gum recession can also be helpful. The state of fusion of the sutures of the skull can also be also used to corroborate the findings.
EXPERT WITNESS JOURNAL 44
The next step is the procurement of the ante-mortem dental records of the named person(s) disclosed as a result of the media coverage. This is enacted by a Police Family Liaison Team who will contact the family of the named person(s) to ascertain the past dental history including the location of the surgery where past treatment had been carried out. The ante-mortem records are then compared with the post-mortem dental record obtained from the deceased. The result may be either positive identity or exclusion. Occasionally it may be necessary to quantify the degree of certainty of exclusion because of the paucity of available information. Closed cases – the deceased is one of a closed pool of known victims and confirmation of the identity of individual victims is necessary. For example confirmation of the individual identities of two badly incinerated bodies recovered from a vehicle involved in a road traffic accident where the identities of the two occupants of the vehicle at the time of the accident are known. Identification is carried out by either inclusion or exclusion after comparing ante-mortem and post-mortem dental records. 2. Identification of the Perpetrators of Bite Marks The body of fifteen year old Linda Peacock wad discovered on August 6th, 1967, in a cemetery in Biggar, Scotland. Linda had been strangled and had bite marks on her right breast. Until that time there was no precedent to accept evidence from forensic dentists as being prima facie and admissible to the Court within in the UK. However in a landmark ruling Lord Grant ruled that forensic dentistry be recognised as a respectable scientific procedure and that the evidence of forensic dentists was henceforth admissible to the Courts within the UK. His ruling proved pivotal in securing the conviction of the murderer. The term “bite mark” is used to describe mark caused by the teeth alone or in combination with other mouth parts. Bite marks can be found in flesh, foodstuffs and less frequently in a variety of other materials. Bite marks occur in a variety of violent crimes, assault, rape, murder and child abuse. Bite marks in flesh are most frequently found on the body of a victim. However, attack victims may attempt to defend themselves by biting their assailant. A bite mark may also be self-inflicted, for example, by a hand being pressed against a victim’s mouth to stifle a cry. A well defined bite mark leaves an oval or circular mark, consisting of two opposing U-shaped arches separated at their base by an open space. The arcs may include bruises, abrasions and lacerations made by individual teeth. Analysis of the characteristics made by individual teeth together with specific measurements form the basis of bite mark analysis SPRING 2014
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As well as adult bite marks being children can also bite one another and it is important to distinguish between the injury being caused by either a child or an adult. A forensic dentist uses both measurements of inter-canine width and assessment of the nature of the individual tooth characteristics to determine whether the bite mark was caused by an adult or a child. Animals can also cause bite marks and it is important to distinguish animal bites from human bites. Animal bites tend to leave deep puncture wounds and are also much narrower than human ones. The three questions to address when faced with a possible bite mark are; • Is it a bite mark? • If so was it made by a human? • If the answer to the above is “yes” does the mark contain sufficient information to identify the perpetrator? Comparison of a bite mark with the teeth of an accused person is usually carried out by superimposing outlines of the biting edges of the front teeth of the accused on life size photographs of the bite mark. Guidelines for bite mark photography include the inclusion of a scale so that software programmes such as Adobe Photoshop, can be used to produce life size images of the injury. From dental impressions the same software programme can also be used to produce outlines of the biting edges of the front teeth of the accused on transparent acetate paper. These transparent “overlays” that can be superimposed directly on the life size images of the injury enabling direct comparison.
consequences. This generic definition may encompasses disasters that may seem relatively trivial, for example a road traffic accident involving a collision between two vehicles in a geographically disadvantaged area of terrain to the Tsunami disaster in South East Asia in 2004 that resulted in the deaths of thousands and thousands of unsuspecting victims. The objective of any forensic exercise in the aftermath of such an event is the reconciliation of the deceased to their immediate family. The principles are essentially the same as for the identification of human remains by reference to the teeth and ante-mortem dental records as described above but obviously the scale of the disaster may require a different operational approach. Within Interpol there is a DVI (Disaster Victim Identification) component. Teams of odontologists, pathologists, anthropologists, entomologist’s et al are available 24/7 for global deployment. The majority of European countries support DVI including UK. Similar arrangements exist in Australia, New Zealand, USA, China etc. There is a commonality of strategy for repatriation of human remains. The advantages of dental identification is that it is relatively cheap, quick and minimally invasive. The disadvantages are that dental identification relies on the availability, clarity and completeness of ante-mortem dental records. From a forensic dental perspective the response to a Mass Disaster involves the establishment of two distinct teams, a
Above- Well-defined human bite mark pictured with scale
3. Mass disasters The recognised definition of a Mass Disaster is an untoward event that results in sufficient numbers of victims where local services are able to cope with the EXPERT WITNESS JOURNAL 45
Above- Temporary burial for victims of mass disaster pending identification SPRING 2014
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“home” team responsible for the collection and collation of ante-mortem dental records and an “away” team responsible for the collection of post-mortem details of the victims. Comparison of ante and post mortem dental records by a reconciliation team can then be used to establish either identity or exclusion. The success of using dental identification can be assessed against the background that close to 50% of positive identifications in the 2004 South East Asia Tsunami were established by “stand alone” dental evidence and that close to 70% of identifications were established using “corroborative” dental evidence. 4. Age Estimation Age estimation has become an integral part of forensic dentistry due to poor global national birth registration practices and the high number of asylum seekers claiming access to social benefits.
Age estimation relies on comparison of dental radiographs of an individual against published reference data sets depicting chronological dental development representative of the given reference population. There is general recognition by forensic dentists for the necessity of a wider range of population specific data sets to ensure accurate age assessments for the future. In some countries, including UK, concerns have been raised in the context of taking X-rays and the concomitant inevitable exposure to ionising radiation when there is no implied health benefit. Probably the most widely used reference data set was produced by Demerjian et al (1973).
Dental development is thought to be the most accurate and reliable way of correlating growth and development as it is a system little affected by environmental factors. However considerable voids exist in the totality of the reference data sets for different ethnic groups.
Above - Orthopantomogram used for age determination EXPERT WITNESS JOURNAL 46
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5. Archaeological aspects Anthropologists and archaeologists appreciate the benefits of a multidisciplinary approach if they are to interpret correctly animal or human remains found in excavations. The expertise of a forensic dentist is often requested when teeth and jaws are part of the findings. Some archaeological investigations are restricted to a single skeleton and the investigation can proceed along the lines as described above in 1. On other occasions large numbers of skeletons are exhumed in the course of an investigation and under these circumstances the situation is more analogous to the role of the forensic dentist in the Mass Disaster described above in 3. 6. Miscellaneous aspects Forensic dentists occasionally are faced with â€œunusualâ€? requests for advice. For example; a. Pink teeth â€“ in some bodies the teeth acquire a pink discolouration which clearly represents a post-mortem change. The evidence suggests that this is not apparent for one and to two weeks and can assist in the determination of the time of death. The pink discolouration is as a result of haemoglobin from the dental pulp seeping into the dentine of the tooth structure. It has been suggested that violent death such as strangulation may raise the venous pressure immediately prior to death to an extent that haemoglobin is forced into the dentine. In forensic
practice the phenomenon is most frequently seen in victims of drowning where the head frequently lies in a dependant position.
Above- Pink teeth
b. Foreign body found in foodstuff â€“ the forensic dentist may be involved in the identification of foreign bodies found in foodstuffs. The forensic dentist is able to determine whether the foreign body is a tooth or part of a tooth and in most cases is able to provide a species determination if appropriate. â– John Rosie Forensic Dentist Secretary British Association of Forensic Odontology
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Effects Of Childhood Sexual Abuse: Challenges Posed by Historical Cases by Prof Anthony Maden MD FRCPsych, Emeritus Professor at Imperial College London and Consultant at PPCS The publicity attracted by celebrities accused of sexual abuse has highlighted the special problems associated with providing expert evidence in historical abuse cases. The media attention has encouraged many people who have suffered at the hands of non-celebrities also to come forward, having kept their experiences a secret for many years and in some cases for several decades. My “oldest” case related to alleged severe abuse over 50 years ago. Whilst the disclosure may in itself bring relief to the individuals concerned, the passing of time may pose particular problems for the expert. I consider these difficulties under the following headings: 1. Memory and recall. 2. Psychiatric diagnosis and its limitations. 3. Causation.
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Memory and Recall While most publicity goes to the rare phenomenon of recovered or false memories, the nature of ordinary memory and recall is relevant in all cases. Until the 1930s, it was assumed that memory and recall acted like a mechanical recording device. The passage of time led to loss of memories but a greater or lesser part would survive unimpaired. The experimental work of Frederic Bartlett at Cambridge established that this was not the case and the mechanical recording device is not a valid analogy for human memory. Recall is an active process of reconstruction shaped by the attitudes, temperament and interests of the individual concerned. As a result, memories are often distorted by what Bartlett called “effort after meaning” i.e. the selection, loss and shaping of one’s memories to form a coherent but not necessarily
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historically accurate account. These processes are automatic, unconscious and universal. They affect all recall to a greater or lesser extent and, in the absence of other sources of information, the expert is in no position to detect what is accurate and what is not. These affect recall of the sexual assault or abuse itself but, of course, the facts of the matter are a matter for the court to determine so the expert can leave that problem to others. A greater problem is the effect on assessment of causation, as recall may distort other aspects of the Claimant’s early life. The expert may have to balance the effects of the abuse against the effects of other childhood adversity, which may not be accurately recalled. When records are available, they often reveal inaccurate or incomplete recall in this respect. With only the Claimant’s account to rely on, it may be impossible to know what other factors have contributed towards the outcome. In a fast changing scientific world, it is unusual for an academic to refer to research that was done in the 1930s, which is testament to the durability of Bartlett’s findings. There has however been a recent resurgence of interest in this area, as reflected in: Schacter D L (2007) How the Mind Forgets and Remembers, Souvenir Press Ltd.; Fernyhough C (2013) Pieces of Light: The New Science of Memory, Profile Books; and Sabbagh K (2011) Remembering our Childhood: How Memory Betrays Us, Oxford University Press. Psychiatric Diagnosis The most common paradigm for describing the effects of childhood sexual abuse is post-traumatic stress disorder (PTSD), as defined in either the WHO’s ICD10 or the American Psychiatric Association’s DSM4. As PTSD evolved as a way of understanding mental health problems in Vietnam war veterans, it is not surprising that it is less than an ideal fit with the experiences of adults who were abused many years ago in childhood. A prerequisite for a later diagnosis of PTSD is that emotional or behavioural effects of trauma were apparent at the time of exposure. It may be difficult to establish whether or not that was the case when considering events 20, 30 or more years ago. Furthermore, childhood sexual abuse may not be experienced as traumatic at the time. There is epidemiological evidence from community surveys, particularly those carried out by Mullen’s Group in Melbourne, Australia, to show that sexual abuse may be less traumatic to younger (pre-pubertal) rather than older children because it is only in the older child that the full connotations and ramifications of sexual acts become apparent. So the effects of abuse early in childhood may not become apparent, or at least not fully apparent, until a child reaches puberty and adolescence. It can be difficult to detect these symptoms when looking back from many EXPERT WITNESS JOURNAL 49
years later. If present, symptoms are often of non-specific emotional or behavioural disturbance rather than specific indicators of post-traumatic stress disorder. In some children, the effects of abuse are better seen as developmental rather than traumatic like war or natural disaster. The abuse damages personality development. Perhaps the most common diagnosis is that of emotionally unstable or borderline personality disorder. There is a strong statistical association between adult borderline personality disorder and childhood experiences of abuse, neglect or indeed any form of inadequate parenting. Even here, the causal link has not been fully elucidated but the paradigm is in many cases more appropriate than that of PTSD. In the USA, the proposed new diagnosis of complex post-traumatic stress disorder is an alternative way of trying to develop classifications systems that more accurately reflect the child’s experience. Many experts regard the symptoms of complex PTSD as similar to, or indistinguishable from, borderline personality disorder. My personal view is that the proposed new diagnosis offers no advantages over that of borderline personality disorder. My main reason for reaching that conclusion is that neither developmental psychology nor psychiatry will advance as a science if symptoms/problems and their causes are confounded. Complex PTSD assumes the causation of a problem, rather than leaving it as an issue that needs to be decided independently of a description of the symptoms. We know that the causation of conventional PTSD depends to a large extent on predisposing or vulnerability factors and the same is likely to be true of complex PTSD. A diagnostic category that assumes causation makes it more difficult to explore these complex issues. A further difficulty in historical cases is that the passing of decades since the material events leaves plenty of time for an individual to develop a great many mental health problems. Depression, for example, is common in those who have not been abused even if it is more common when there has been abuse. A general model of the causation of depression assumes an underlying vulnerability, arising from hereditary factors and early experiences, with a proximal cause or precipitating event later in life. Childhood abuse may lead to a vulnerability that only becomes apparent later, following other life events. An example in which it is often possible to establish a causal link is when an individual abused in childhood becomes depressed when his or her own children reach the age at which s/he was abused. It may be more difficult to establish a causal link when there is no such explicit connection. Depression is common following the breakdown of a relationship and there is SPRING 2014
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often room for a wide spectrum of opinion on the extent to which the vulnerability was due to childhood abuse. Some survivors of childhood abuse develop, many years after the event, conditions such as bipolar disorder or schizophrenia where there is controversy about whether there is any causal link. Causation The preceding section brings us neatly to the question of causation, which presents particular problems in historical cases. The Courts, and indeed most scientists, are used to dealing with causes and effects that are fairly closely related in time. Precision is never easy when dealing with causation in psychiatry. It becomes very difficult if not impossible when dealing with an interval of decades. The disclosure of previously hidden sexual abuse, even many years after the event, often leads to the emergence of symptoms of anxiety, depression or post-traumatic stress disorder. Sometimes these are the first overt symptoms attributable to the abuse, in contradiction of the principle that a traumatic event ought to cause symptoms at the time or shortly afterwards. In other cases, there is a considerable psychiatric history. The expert has to assess how much of that mental health history is attributable to the childhood abuse. That may not be easy but relevant factors include the nature of the symptoms.
In other cases, there is no psychiatric history prior to disclosure. The expert may still argue that the abuse caused hidden or purely subjective damage. It is impossible to dispute a purely subjective experience but equally impossible to prove its existence. In most cases, the consequences of psychiatric or psychological damage are all too apparent. One expects to find subjective evidence in the self-reporting of symptoms at examination; objective evidence of impairment of function in relationships, work or educational performance; and further evidence in the seeking of treatment, even if the cause of the problem is not disclosed. If there are only retrospective, subjective complaints, the case for damage attributable to sexual abuse is considerably weakened. It would still be wrong to say that the absence of objective, outward signs means there has been no damage. Anybody familiar with private psychoanalytic practice knows that a fair proportion of the patients consist of people who are outwardly well and successful but experience considerable inner suffering. In this scenario, there is the added evidence of treatment seeking but that cannot lead to an automatic discounting of those who have suffered in silence. In my experience, they are particularly likely to be older people for whom there was even greater stigma about seeking psychiatric treatment than there is today. A greater difficulty arises when one seeks to attribute personality traits, rather than a psychiatric diagnosis or psychological damage. Personality traits vary widely between individuals and indeed add to the richness of life. The world would be a boring place if all of us were in the middle of the spectrum for all personality traits. In other words, the extremes of the normal spectrum cannot be equated to damage or pathology. Also, we know little about how personality traits arise. Twin studies tell us that many traits have a significant hereditary component. It is often highly speculative to attribute personality traits to specific childhood experiences of any sort. Even here however, it is difficult to set rigid rules. Most people would accept that prolonged or severe abuse during childhood can cause low self-esteem, anxiety and unhappiness later in life, even if it does not reach clinical levels. Perhaps the greatest general difficulty in determining causation is that of confounding factors. It is apparent from research and clinical experience that sexual abuse tends not to happen at random. It happens more often to children who are vulnerable because of personal, family, economic or social disadvantage. As a result, there is a statistical correlation between childhood abuse and practically all negative outcomes in adulthood, including
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most mental disorders. Of course, a statistical association is not the same as a causal association. The problem for the expert is to determine whether the later damage was attributable to the abuse itself or to the natural course of the vulnerability factors.
child has positive feelings can cause particular damage to personality development. In historical cases, it may be even more difficult to tease out these issues because it may be impossible to establish details of the factors operating on the individual’s life in childhood.
It is difficult to research this question. One of the problems is that much of the research on sexual abuse is retrospective and does not include control groups or representative samples. The ideal scenario is a non-selected, community survey, and for that reason I find myself again referring to the work of Mullen’s group in Melbourne. Their community surveys do not support a causal link between uncomplicated, non-penetrative sexual abuse and the development of later mental health problems. Instead, the mental health problems are more likely to have arisen from other, confounding factors.
In many of these cases, a Court will raise the question of nature versus nurture. Recent studies have shed light on these issues because of improved methodology, as funds have been diverted to an area that requires large scale and therefore expensive studies. Overall, the recent research tends to give greater importance to inherited or constitutional factors than was the case 50 or more years ago, when more weight was given to early experience.
Of course, this finding should not be taken as an absolute statement of the case. One has to allow for individual vulnerability and particularly for consideration of the surrounding circumstances. My experience has been that the emotional context can be of greater importance than the sexual acts themselves. So, sexual abuse that is relatively mild by an objective standard can cause great damage when it occurs in an emotionally abusive or exploitative context. Severe damage may also arise through social mechanisms, such as when an abused child suffers as a result of ostracism or publicity. Ambivalence arising from abuse perpetrated by someone for whom the
Perhaps the main contribution of the recent research has been to illustrate the complexity of the matters under consideration. The difficulty is that a given childhood event, such as the experience of emotional neglect, may itself be affected by the child’s temperament and expectations. In other words, two children may experience the same home and parents very differently. One experiences home as acceptable and the other as emotionally deprived. In short, one cannot even define the experience (being parented) without reference to the nature and expectations of the child experiencing it. This is a challenge (or nightmare) for scientists devising these studies, but perhaps an even greater one for courts used to dealing with causation in road traffic accidents or industrial injuries. ■
Dr James Finlayson MB ChB MRCGP MRCPsych Certificate of competence as medico-legal expert of Royal College of Psychiatrists and Inns of Court School of Law Approved and designated practitioner under mental health act (Scotland)
I have over 30 years experience as a doctor - as a rural GP and as a consultant psychiatrist I have prepared over 500 reports in civil (including medical negligence), criminal and mental health fields for Scottish, English and Irish jurisdictions. Tel: 01478 650 417 Fax: 01478 650 466 Mob: 07597441363 Email: firstname.lastname@example.org 7 Gedintailor, The Braes, By Portree Isle of Skye, Scotland IV51 9NJ EXPERT WITNESS JOURNAL 51
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A Look at Modern Forensic Psychiatric Practice by Dr Jonathan Stewart Shapero - M.B., Ch.B., M.R.C.Psych. Consultant Forensic Psychiatrist Modern forensic psychiatry has become a fully-fledged sub-specialty within psychiatry. This article will explain why forensic psychiatrists are different, and try to help inform when a lawyer may need to call on one. In this article the author will concentrate on issues within the criminal law, although some forensic psychiatrists are also active in the assessment of civil matters, including Testamentary Capacity, Family Proceedings, accident and injury claims (particularly those relating to childhood abuse) and Capacity to deal with certain non-criminal matters before the Courts (i.e. falling within the Mental Capacity Act 2007). Other work often undertaken by forensic psychiatrists relates to the independent production of reports for Mental Health Tribunals.
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Terminology One of the areas where the training of a forensic psychiatrist differs from that of many other psychiatrists is in the use of some elements of legal language, and understanding that some terms are only legal, and have no medical meaning. The prime example of this is "Insanity", a legal term still in use but dating from many centuries ago. This word, along with "lunacy", "mental retardation" and numerous others was abandoned by the medical profession many years ago in favour of more objective and scientific nouns. Thus, it is worth starting with a brief definitions of terms, an area where even those within the mental health professions can become confused. Prior to the 2007 Mental Health (Amendment) Act, the Mental Health Act 1983 defined four categories of Mental
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Disorder, encompassing Mental Illness, Mental Impairment and Severe Impairment, and Psychopathic Disorder (the Personality Disorders). Each of those Categories was therefore a sub-set of Mental Disorder, which was the term applied to all those to whom the Act applied. The 2007 Act abandoned the use of these four Categories and we were left with the generic term "Mental Disorder" which applied universally to everyone to whom the Act applied. Although the Categories are now considered outmoded and no longer have any legal meaning, we do still refer to a particular group as being mentally ill, these being those individuals with well-defined mental health ment with medication than the other types of mental disorder (since they are generally biological in nature and are caused by a disturbance in the biochemistry of the brain). The major diagnoses which fall within the area of mental illness include schizophrenia, affective disorders (that is pathological disturbances of mood, consisting of depressive or low mood, and hypomanic, manic or elevated mood), and some other psychotic disorders. Psychosis is a feature of some mental illnesses in which the subject essentially loses contact with reality in some way. This may be through the development of delusions, which are beliefs and ideas which are irrational to most others, within their particular cultural context, and which are unshakeable by rational argument. Psychosis also includes the development of such symptoms as "voices" (auditory hallucinations), although at the risk of confusing the reader, not all "voices" described by people with mental health problems are caused by mental illness. A general characteristic of most psychotic symptoms is that they fall outside the range of normal human experience. Subjectively they can be extremely distressing for the sufferer, particularly if they are in the form of persecutory delusions, or command hallucinations. The latter may consist of the sufferer hearing hallucinatory "voices" which tell them to do something with an accompanying feeling of compulsion. These commands may include injunctions to hurt themselves, or others, and may lead in extreme cases to the commission of homicide, or more commonly suicide. Finally in this section it is worth mentioning the issue of "insight", which is both fascinating and terrifying. When a person develops a psychosis, or psychotic illness, they often "lose insight" which means that they may become partially or completely unable to moralise their actions, form intent, or make judgements in the normal way because of what they are experiencing. This may be because they develop beliefs which allow them to overcome their normal inhibitions. A tragic example is of a mentally ill woman who becomes deluded that her baby is the Devil Incarnate EXPERT WITNESS JOURNAL 53
(I dealt with such a case many years ago) and kills the child, believing it not to be human. Insight is a terrifying area because even the apparently sanest of people can lose sight of reality when psychotic, and the writer knows of cases where a doctor, who knows better than almost anyone what it means to develop delusional thinking, appears to completely lose that knowledge when mentally ill in this way. Psychiatrists sub-specialise! Nowadays there are many sub-types of psychiatrists, common examples being adult general psychiatrists, old-age psychiatrists, child and adolescent psychiatrists, and forensic psychiatrists. In the past twenty to thirty years the sub-specialty of forensic psychiatry (sometimes known in the States and other countries as medico-legal psychiatry) has grown considerably. When the author became a Consultant Forensic Psychiatrist in 1986 he was one of only about sixty in the country, whereas now there are several hundred. How do Forensic psychiatrists differ from their colleagues? Initially we have three years of "higher training" which differs in some respects from that of our Adult General and other colleagues. At the end of that we receive a "Specialist Certificate of Training" which entitles us to apply for jobs advertised as being posts in "Forensic Psychiatry".
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During that training we not only learn to deal with the same range of mental disorders and illnesses as other psychiatric trainees, we also take considerably more account of the elements of assessing and predicting risk (in relation to mental disorder). We also learn about treating severe mental disorder, usually when it has led to offending behaviour, in secure settings. We are expected to have a working knowledge of those areas of the law which are relevant to dealing with mentally disordered offenders who appear in the Courts. We learn about Court process and how to liaise with the legal profession. We learn how to write psychiatric reports which are both informative for the lawyer, and at the same time try not to be so technical as to be impenetrable for the non-medical professional. Thus, if a psychiatric report is requested, the most logical choice would be to instruct a consultant forensic psychiatrist. If a defendant has an established history of contact with mental health services, the Consultant Psychiatrist who last treated them may initially be approached for a report, but it is not uncommon for them to say either that they do not wish, or do not feel qualified to produce a report for the Court, and suggest a local forensic psychiatrist in their stead. This is of course in accord with the principle that experts should only report to the Courts within the confines of their own area of expertise. Psychiatry vs Psychology Apart form other psychiatrists, Mental Health reports for the Courts are also sometimes requested from psychologists. There is sometimes confusion between the qualifications and expertise of psychiatrists and psychologists. The difference is usually a simple one, namely that psychiatrists are medically qualified, and have undertaken a full medical training before specialising in some area of psychiatry. Perhaps confusingly, there are a few psychiatrists who also have psychology degrees, and even more confusing is the fact that quite a few psychologists have PhD degrees and are addressed as "doctor". Many legal professionals seem not to be aware of this essential difference. Knowing a little about this helps to determine which profession is best consulted. Whilst there can be a considerable degree of overlap in the roles and expertise of psychiatrists and psychologists, as a general rule the latter are more expert in formalised risk assessment, and the measurement of certain aspects of mental functioning and behaviour. They may also be expert in certain modes of treatment but usually only those which do not primarily involve the use of medication (psychological and behavioural treatments).
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Forensic Psychiatrists are expert in assessing fitness to plead, the various psychiatric aspects of homicide, the application of the Mental Health Act, and the treatment of mental illness and other disorders which primarily require the use of prescribed medication. They are also often experts in Risk Assessment, but are more oriented toward clinical rather than actuarial methods of doing so. Medical reports would normally be requested from a psychiatrist, particularly if inpatient treatment may be the outcome, using the Mental Health Act. Psychologists may still be more appropriate in certain cases, e.g. for the assessments of sex offenders (although medication can have a role in the reduction of libido in some cases), memory problems, problems caused by brain injury and the particular problems of people with learning difficulties. As a rule of thumb, it is usually the best approach to request an initial report from the psychiatrist who will advise the Court if a psychological opinion would be useful. Mental disorder and offending Only a small proportion of offenders are mentally disordered to the extent that a psychiatric defence or disposal results. Nonetheless mental disorders are common and may have some effect on offending behaviour, even if their presence does not provide a full explanation for the offending. There are numerous reasons for referring an offender for a Court report, and these include: ❖ Fitness to Plead/ability to stand trial ❖ Odd behaviour in Court (or at the time of offending or arrest) ❖ Concerns from the Probation Service, either about odd behaviour, or risk issues ❖ To help explain the offending, or its severity ❖ To help explain persistent offending of a particular type ❖ A known previous history of mental health problems or treatment ❖ Drug/alcohol issues, whether or not linked to psychiatric symptoms ❖ Assessment of dangerousness to assist with sentencing ❖ Completing Orders for hospitalisation under the Mental Health Act ❖ Psychiatric issues relating to an appeal Some offenders are obviously mentally disordered even to a lay person, and it may not be difficult to determine that expert help is needed. A previous history of contact with mental health services does not automatically imply that there are mental health issues. It is important to determine the recency and significance of any such events, as a brief
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(or single) contact a long time previously is probably not significant. Requesting a specialist assessment may be in a defendant's best interests, but can raise ethical questions about the role of the defence lawyer. A clear example is when a Defence psychiatric report is requested against the wishes of the offender. That situation probably occurs most commonly in one of two scenarios. The first is when the charge is murder, and all possible avenues of defence need to be explored. The second would be when a defendant is so disordered in their thinking and presentation that they may possibly be unable to give coherent instructions, and may even specifically state they do not wish to be psychiatrically examined. However when it is clear even to lay people that hospital treatment may be the best option, since such people rarely make a spontaneous recovery without treatment, the lawyer may be called upon to make an ethical judgement that to defy their instructions may ultimately be in their client's best interests, and request a psychiatric report knowing that hospitalisation will be the likely outcome. Effect of recent changes in legal aid arrangements There are considerable anxieties that recent changes in the legal aid system may result in two deleterious effects on the ability of the mentally disordered to access assessment and treatment through the Courts. The first is simply that fewer will now qualify for legally aided reports, and will not therefore even come to the attention of the mental health professionals at that stage in their career. The second is that in the interests of competitive tendering, the less skilled (and therefore cheaper) psychiatrist will tend to be instructed more with the attendant risk that inferior quality reports may be presented to the Courts. Anecdotally the author has already noted a marked reduction in the number of instructions received for reports in criminal cases since the beginning of December 2013, compared with the same period in previous years. A straw poll among colleagues has confirmed that this reduction is being experienced by many forensic psychiatrists across the country. Fitness to plead In most cases there is little problem in determining this. The five well-known elements of the "fitness" test (the Pritchard Criteria) are that the Defendant: ❖ Understands the charge and its legal implications ❖ Knows the difference between a plea of guilty and one of not guilty ❖ Can meaningfully instruct his/her legal advisors ❖ Can follow the proceedings of the Court and the Trial ❖ Can challenge a juror EXPERT WITNESS JOURNAL 55
It requires two Psychiatric Experts to provide opinions on “Fitness to Plead”. Provided at least one of the medical Experts finds the defendant “not fit”, the matter is tried by a Judge in Crown Court on the basis of the psychiatric evidence. If the defendant is found “unfit” by the Court, there is then a Trial of the facts. If this second stage Trial (by jury) confirms that the facts support the allegations, a custodial sentence cannot be imposed and one of only three possible disposals are open the Court. These are: ❖ A Hospital Order (with or without Restrictions) ❖ A Supervision Order ❖ Absolute Discharge The Expert’s point of view To summarise, the questions an expert Forensic Psychiatrist should try to answer when assessing an offender for the Courts include: ❖ Is this person fit to plead according to the Pritchard Criteria? ❖ Is this person suffering from Mental Disorder within the meaning of the Mental Health Act? ❖ If so, is this relevant in the context of this case? ❖ Can the offence(s) be partly or wholly explained in the context of a mental abnormality? If not, are there mitigating factors involving mental health issues? ❖ What are the risks of recurrence and the risks to the public arising from the mental disorder? ❖ Is psychiatric or psychological treatment required? Will it reduce the risks of repeat offending? ❖ If so where and how should the treatment be given, and in what level of physical security? ❖ Are there any alternatives to hospitalisation? The author has taught on many courses about the production of Court Reports. It is apparent that a major shortcoming of many psychiatric reports is in not forming firm conclusions. Many reports also fail to make clear recommendations to the Court (even if that entails saying that there is no treatment required or available) based on the answers to the questions above. ■
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Forensic Psychology: An Under Used Resource by Dr Dennis R Trent, Clinical Psychologist Forensic psychology at its basic level is the application of psychology in legal issues. For those psychologists in forensic practice, there are three major areas of involvement; Child Protection, Criminal and Litigation. Each of these have sub-areas with individual psychologists specialising in one or more of those areas. Child protection is one of the most critical areas of Forensic Psychology in that it aims at ensuring that a child can grow and develop in a safe and nurturing environment. As such, the proper assessment of the parental or care giversâ€™ influence is critical to the process of safeguarding that environment. Over the past twenty years an awareness of the role of child abuse in subsequent behaviour has become more integral to the laymanâ€™s EXPERT WITNESS JOURNAL 56
understanding of both mental illness and criminal behaviour. While recognising the current constraints on Legal Aid, the judicial use of psychological input, especially in child protection, although costing a modest amount now, has the potential for significant savings in the future by enabling those children to become stable, healthy and productive adults. Child abuse occurs in four areas; physical abuse (CPA), sexual abuse (CSA), emotional abuse (CEA), and neglect (CN). Clearly there are many cases where more than one of these is present. While physical and sexual abuse are easily distinguished, emotional abuse is far less obvious. It includes bullying as well as generally degrading a child over a period of time convincing the child that he or she is SPRING 2014
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worthless, useless, or otherwise unacceptable. Neglect is the lack of recognition or the inability or unwillingness to put the child’s needs above those of the caregiver. It has often been said in cases of neglect that the perpetrator is innocent because the child had enough to eat or had a bed to sleep in, however neglect is far more reaching that just the provision of basic needs. It includes such things as leaving the child for extended periods of time when it is not age appropriate to do so or not encouraging a child to attend school. It also includes placing a child at risk by not recognising threats within the environment as occurs in situations where a single parent will stay with a partner or bring in a new partner with a known background of abuse. Children tend to see the world in concrete terms. This means that they dichotomise issues into an either/or paradigm. To a child everything is either black or white, there is no grey in a young child’s life. They are also very self-centred. Any parent or person who has spent any time around a young child knows that it is a ‘my’ world to the child. These beliefs impact on a child’s perceptions in two ways; the child feels responsible for events in which there is no responsibility and sees himself/herself as an extension of that assumption of responsibility. While, ‘if I had eaten my carrots Mom and Dad wouldn’t be fighting and if they weren’t fighting they wouldn’t be getting a divorce, therefore it’s my fault they are getting a divorce’ does not make integrated sense to an adult, it often does to a child. Hence we have children who are abused who clearly feel responsible for the abuse they suffer. The result of abuse is a markedly poor self-concept in which the individual believes he or she is bad, worthless or incompetent. This has an impact on the manner in which they perceive there environment and those others in it. Trust is a central issue in many of these individuals and therefore their ability to establish and maintain stable long-term relationships is greatly degraded or impeded. The use of psychology in criminal cases focuses primarily on differentiating those who are responsible for their actions from those who are not. It is the old ‘mad or bad’ question. In this sense they are involved in determinations of whether a person is fit to plead. They also are instrumental in deciding the degree of risk a person presents to himself, the population at large or a specific section or sub-section of the population. This often has a major impact in sentencing as does an individual’s vulnerability within a custodial environment. They also have a significant part to play in whether an individual subject to parole or review is appropriate for release or downgrading to a lower category of incarceration.
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Much of the work done by forensic psychologists takes place in prisons or secure environments. This work not only focuses on treatment in areas such as anger management, thinking skills, victim empathy, etc., they are also instrumental in helping staff to respond to situations in an appropriate manner and to understand the dynamics and actions of the individuals in their care. Additionally, they often provide a service to support staff members in areas which may affect their ability to work such as stress management and reactions to events. One of the primary areas of concern in many criminal situations is the presence and impact of personality disorders. A personality disorder is best explained as a filter on the manner in which a person sees the world and the world sees the individual. While there are a number of specific types of personality disorder, they all share an impairment in the ability to trust and an impairment in self-concept. Because they are long-standing, they take a significant amount of time and effort to resolve, often with poor results as the individual frequently is unaware that such a filter is in place. That is not to say that they are untreatable, only that they require specialised intervention which is likely to take time to see any significant change. The other area of concern in many criminal situations is that of motivation. No one outside of the individual knows for certain what motivates a given behaviour. Additionally, trying to reconstruct a past motivation is difficult. At best one can only suppose or make a guess at what motivated an action. Here a psychologist is again an aid to understanding as they are trained to look at motivations and how they interplay with behaviour. While, therefore, a determination of motivation in another individual remains a guess, a psychologist has the ability to narrow that guess through education, training and the use of psychometric instruments the intention of which are often unclear to the individual taking them. The link therefore, between child abuse and subsequent criminal behaviour becomes clearer in that the events we experience in childhood impact on the decisions we make about ourselves and the world around us which underlies our decisions as adults. It is often said that abuse in childhood leads to criminal behaviour in adulthood, and while it is often true it is not linear or bi-directional. While a majority of individuals displaying criminal behaviour have been abused as children, this is not true of all cases of criminal behaviour. Likewise, not all persons who were abused as a child will exhibit criminal behaviour as an adult. Making sense of the dynamics is the role in which a psychologist in forensic practice becomes a significant asset.
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The third area in which psychology, and psychologists have the ability to make a substantial contribution is the area of litigation. With the advent of the ‘no win, no fee’ practice litigation has become a significant focus of many law firms. Some areas in which we have seen a large upswing in frequency are Road Traffic Accidents (RTA), work or non-road accidents, education, and failure to provide due care, malpractice, and employment. Each of these can have a significant impact on an individual and considering the monies involved may well provide motivation for feigned or exaggerated symptom reporting. Since the Viet Nam conflict the concept of a Posttraumatic Stress Disorder (PTSD) has become an accepted and to some degree popular diagnosis among clinicians to the point where the symptoms or criteria are frequently well known among the general population. It can be said that a PTSD is a response to an event or situation that lies outside the experience of the average person. As such, its inclusion in litigation is such that trying to determine the actual PTSD from a feigned PTSD often takes a level of skill and expertise of which a psychologist is well endowed through training and experience. Obviously the need for medical or other psychology specialities such as neuro-psychology may be required in some cases where there is a real or possible physical or neurological component as may be the case in a significant head trauma.
is critical in many cases to a speedy and stable positive mental health. While the treatment of personality disorders is often seen as poor, individuals have made great strides in many cases toward a more appropriate view of themselves and the world around them. Psychologists have been involved for many years in the treatment of survivors of child abuse, and lately that of child sexual abuse. They also have provided therapy and intervention for those who have perpetrated such abuse. With the advent and growth of the internet, an understanding of the underlying dynamics and subsequent the treatment of users of internet child pornography has become a major concern and one in which psychologist in forensic practice can be markedly helpful. Differentiating the ‘one-off’ or ‘casual’ observer from the predatory paedophile is necessary in determining sentencing and subsequent behaviour. Having training in the selection and use of psychometric instruments is again a central skill of psychologists in forensic practice. While many instruments have been designed and intended for clinical practice, they may not be appropriate in forensic settings. Knowing which instrument is appropriate to any given setting or
Clearly the need for a psychologist in forensic practice to ascertain the extent of any psychological impact of an event is critical to determining the outcome of any litigation. One area in which psychologists in forensic practice have recently become involved is in the area of perpetrator profiling. The intention of profiling is to reduce pool of suspects in a case by defining the likelihood of an individual to fall into the suspect pool. Although still in its infancy compared to other areas of psychology, it has been used to great benefit in both Britain and the US by such agencies as the police and FBI. As the threat of terrorism has become greater over the last decades, so has the role of the psychologist as a profiler increased. The final area of expertise which can be provided by a psychologist in forensic practice is that of providing a therapeutic intervention for those who have become involved with the law. Psychologists have played a major role in both devising and implementing programmes such as anger management, drug and alcohol awareness, victim empathy/awareness and self improvement in both prisons and through the Probation Service. The relief of the symptoms of PTSD or other anxiety states as the result of involvement in or exposure to an event or series of events
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Clinical, Forensic & Child Risk Assessments Pre/Post Sentence Reports Life Review Panels Therapy, Anger Management Intellectual Functioning (IQ) UK Wide Coverage Private and Legal Aid Short Notice - Quick Response Midlands Psychological Services Quayside Tower, 252-260 Broad Street Birmingham, B1 2HF Tel: 0121 224 3051/Fax: 0121 224 3252
www.midpsych.co.uk SPRING 2014
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circumstance is important in an assessment in which there is a strong motivation to bias the results of that assessment. Distinguishing who to instruct is often an area of some confusion. Psychiatry is often confused with psychology and equally often psychology is viewed as substandard to psychiatry. A psychiatrist is a medical doctor who may receive up to a year of psychology in training and then goes on to a placement, often in a psychiatric hospital. They are almost invariably linked to the NHS and as medical practitioners hold an elevated position in that arena. While some do study and have a strong psychological orientation, many do not. Psychologists have an undergraduate plus a Masters or Doctoral degree all in psychology. While they do not prescribe medication, they tend to look past biological causes of behaviour and are skilled in the use of psychometric instruments which measure different aspects of thought or behaviour, often without the individual knowing what is being investigated. As such, it is less likely that a subject can bias a psychological report. â–
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Dr Dennis R Trent is a Clinical Psychologist in private practice with over thirty years of experience in clinical and forensic settings. He has worked in hospital, prison, secure unit and community settings in both Britain and the US and is the primary psychologist at Midlands Psychological Services which has produced in excess of 1500 assessments in the areas of child protection, criminal, litigation, education and immigration. He has lectured at Loughborough, Wolverhampton, Hull, Birmingham, Nottingham-Trent, Leicester, John Moores and Keele Universities as well as the University of Zululand in Kwazulu Natal, South Africa.
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An Overview of Medico-Legal Psychiatry by Nick Cooling, Consultant Psychiatrist Over 30 years of working in the field of being an expert witness in psychiatry has brought me face-to-face with a constant change-culture and that process of change continues apace. At the beginning, work as an expert witness was a part-time occupation, something to undertake, perhaps towards the end of your career.
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Nowadays part-time experts are under increasing pressure because of stringent Court deadlines and draconian penalties for failing to comply. Some legal firms have also been slow to grasp this fact and medico-legal experts have often been found wanting. In the modern world, experts are increasingly pressurized to assess clients in a timely fashion.
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Waiting-lists are not popular with firms of instructing solicitors. Joint statements have to be produced in accordance with Court deadlines and that process depends on being able to discuss and negotiate with another expert who appreciates this necessary fact. The ability to be able to succinctly document areas of agreement and disagreement, in terms of condition, causation and prognosis is a vital skill, as well as being able to provide an evidential and reasoned description as to why differences of opinion have occurred. Condition, causation and prognosis are usually fairly adequately addressed, but the question of a broad differential diagnosis is often overlooked, to the detriment of the Court. Experts often forget the fact that medical diagnosis and the science underpinning it, needs to be explained in simple terms, in lay language, if possible. Through discussion with another expert is a vital part of this process and some experts fail to appreciate that producing a thorough joint statement can be at least as time-consuming as providing the original opinion. If one ponders on this, it is not surprising, because the document represents the distillation of two expert opinions and all the complex intellectual processes involved in providing that scientific opinion. Specialty-based expert opinion has its limitations and a good example is the overlap between Orthopaedic experts, Pain experts and Psychiatric experts with regards to providing the Court with a multi-disciplinary understanding of complex injuries. The different diagnostic abels and criteria can cause confusion. In future, multidisciplinary consensus statements may prove to be a very helpful way forward, in terms of assisting the legal understanding of the medical issues involved. Cases involving Somatic Symptom Disorder are a good example of a situation where a multi-disciplinary consensus statement might be greatly beneficial for the Court. Individual practice in medico-legal psychiatry represents an area of considerable demand. The process of producing an expert opinion may be relatively straight forward, involving clinical interview, review of medical records and other documentation, but then come Part 35 Questions, Joint Statements and (increasingly rarely) evidence in Court.
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My medico-legal practice over the last 30 years has involved personal injury, medical negligence as well as terrorist and major disasters. Time has shown that the complex end of the spectrum is far from simple. Today, Hillsborough continues to occupy news headlines, despite the fact that I provided the first expert psychiatric evidence over two decades ago and the land-mark civil case for the Omagh Bomb has continued to influence the peace process in Northern Ireland. My role in providing expert evidence for the Omagh Bomb case lasted eight years and it taught me a great deal about the process of developing and maintaining ones professional expertise. One certain lesson it taught me was to be patient with respect to legal process. Omagh and Hillsborough taught me another important lesson which is that enormous tragedies often overwhelm the ability of individuals or even institutions to cope and deal with them. I have been very impressed with the emergence of family support groups as a way of assisting the process of emotional support and healing, as well as representing a powerful vehicle to ensure political accountability and due legal process. Perhaps the most salutary lesson of my career has been my increasing exposure to the naked fact of Manâ€™s ability to inflict awful suffering on other people and I think of the Childers Fire in Western Australia and Omagh, in particular. Evil and aggression exist all around us and as a psychiatric expert; it is easy to become cynical and disillusioned. I found the Irish Redress Board cases p articularly harrowing to deal with. In the end, as an expert witness, one needs to put in place effective support-networks and it is an essential part of the job to maintain ones professional integrity, not being influenced by political or social agendas. Hillsborough certainly taught me that all might not be well in the world, not necessarily quite as it seemed, but my job was not to judge â€“ it was to provide a scientifically evidenced psychiatric opinion. That was my remit. If you remember that as an expert, you will not go far wrong. My message is simple: Stick to the medicine and do not stray from your narrow path of medico-legal expertise. â–
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Dr Nick Cooling Consultant Psychiatrist MBBS, MRCPsych, Dip Clin Psych Dr Cooling specializes in cases of personal injury and he has considerable experience in the assessment cases of post-traumatic stress disorder, anxiety, depression and other psychiatric disorders resulting from major disasters, work-place accidents, road traffic accidents and medical negligence. Dr Cooling provided the original expert psychiatric evidence for the Hillsborough Disaster, the Omagh Bomb Case and the Childers Fire Disaster, in Australia. He has provided expert opinions for the Bradford Fire Disaster, the Paddington Rail Crash, the Sowerby Bridge Disaster and multiple terrorist events. He has assessed cases in Holland, the United States, Australia, South Africa and the Republic of Ireland. Dr Cooling has provided expert evidence for the Irish Redress Board, in cases of physical and sexual abuse. He is often instructed in cases of alleged sexual abuse. Dr Cooling provides assessments of Mental Capacity, organic mental disorders, brain injury and he provides opinions for Employment Tribunals. In addition to personal injury cases, Dr Cooling undertakes prison assessments, including parole reports and mental health evaluations. Dr Cooling provides opinions for insurance companies, government departments, local authorities, police forces and pensions agencies. He maintains a large medico-legal practice with 40% claimant cases, 40% defendant cases and 20% joint instructions.
Contact: Secretary Kate Coley Email: email@example.com Tel: 01626 873 466 Fax: 01626 873 466 Mob: 07773 225 330 or 07792 947 356 Address: Hill View Cottage, The Strand, Ringmore, Shaldon, Teignmouth, Devon TQ14 0ES EXPERT WITNESS JOURNAL 62
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Assessing the Young Person Following a Road Accident by Dr Ben Laskey, Registered Clinical Psychologist Dr Hugh Koch, Registered Clinical Psychologist
Kelly was a nine year old rear seat passenger in a car travelling at 70mph on a motorway driven by her mother when it was involved in a serious collision. She was hospitalised and on discharge to home, had a disrupted sleeping pattern involving a high level of separation anxiety. School attendance was impaired due to fatigue and not wanting to leave her mother. She also became phobic of travelling in a car, bus and on trains, evidencing high levels of distress at the prospect of even short and familiar local journeys. Her mother also became severely anxious about road travel following the accident, although she was not herself significantly injured in the incident. Her parents managed her distress by adjusting their travel plans and ensuring that Kelly did not have to undergo unnecessary separations from them. As a consequence, their social life became restricted.
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Many children will cope very positively following an accident and show no signs of emotional distress or psychological difficulties. However a proportion will struggle from an emotional point of view and a small number are likely to develop significant psychological difficulties (Koch & Kevan, 2005). Children's adjustment is dependent upon a number of different factors including, but not limited to: resilience, age, developmental stage, gender, context, & severity of accident. Children who are involved in road traffic accidents are often travelling with their parents at the time of the accident. Consequent on the accident, parents often have their own adjustment difficulties (anxiety and guilt) following an accident and although, in general, they do their best to shield their children from this, children are normally aware of parents’ own anxieties (e.g. in relation to travel). In this way, a parent’s post-event anxiety is likely to impact directly on a child’s post-accident adjustment, leading to longer emotional recovery times and increased subjective distress. Anxiety aggregates in families. Children of anxious parents (pre-accident) are likely to demonstrate a slower recovery following a traumatic event. This relates to genetic vulnerability, family coping strategies and other environmental factors. It is difficult for parents to support their children with anxiety difficulties effectively. Most parents will alternate between pushing their children to face their fears sometimes (when they are not ready to do so) and supporting their children to avoid their feared situations. Both of these strategies may have the undesired effect of increasing or maintaining a child’s anxiety (Laskey, 2011). In addition, parents will often relax normal rules, routines and boundaries following a difficult or traumatic event and this may serve to undermine a child’s sense of security and predictability. In addition, it has been shown that children often lose recently acquired development competencies following a trauma (e.g. continence, sleep patterns) and this may cause parents a high level of anxiety. The medico-legal questions 1. What, if any, psychological injuries resulted from the child’s accident? 2. Are there injuries attributable to this accident? 3. Did any of these symptoms pre-exist the accident and, if so, were they exacerbated by the accident. 4. How long did these injuries last? 5. What intervention or treatment is needed? Common psychological effects of accidents on children Following the experience of a road traffic accident a child or their parent will often report one or more of the following symptoms: EXPERT WITNESS JOURNAL 64
• • • • • • • •
Intrusive thoughts re-enactment of accident themes in play/conversation, sleep disturbance, mood changes, general anxiety, behavioural difficulties at home or at school, clinging behaviour, travel anxiety,
The level of symptomatology will depend of several accident related factors: a) The child’s understanding of the accident as traumatic and life-threatening to him/herself or other occupants of the car (especially parents). b) The child’s physical injuries, including level or disfigurement or scarring. c) The child’s experience and adjustment to post-accident events e.g., travelling in ambulance, separation from parents; stay in hospital. d) Their parent’s own emotional adjustment to the accident and hence their reactions to their child’s difficulties. The most common psychological disorders found following a road accident are: Anxiety disorder
separation anxiety travel anxiety/phobia acute stress disorder post traumatic stress disorder
mood and sleep disturbance bedwetting nightmares general or separation anxiety
Most children are very resilient emotionally. However approximately 10-15% will experience and show a persistent level of symptoms. A small number of these cases will be severe enough for symptoms to be classified as a psychological or psychiatric disorder, both in terms of the subjective distress felt and the level of disruption in the child’s everyday life. The term “classified” relates to the use of one of the two compatible internationally accepted systems of classifying psychological/psychiatric disorders, namely:DSM IV: American Psychiatric Association: Diagnostic and Statistical Manual (4th Edition) (5th edition published but a source of debate currently). ICD-10:- WHO International Classification of Diseases (10th Edition). SPRING 2014
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Both these systems are used in the U.K and are, to a large extent, compatible, with minor differences in organisation, terminology and criteria (Koch, 1997). Classification of childhood problems occurring naturally A careful history taking will try to establish whether any of the symptoms reported following the index accident in fact predated before the accident. It is well documented that a wide variety of symptoms and behaviours occur during a child’s natural and normal development. For example:-
Pre-interview induction Both parents and children become nervous of attending this type of interview with fears of being labelled in some extreme way and fears of intrusive questions. The style of correspondence and telephone contact pre-interview (by interviewer or clinic secretary) can be significant in reducing such anxiety. Inclusion of questionnaire information should be carefully “introduced” if sent by post. The next crucial stage occurs in the clinic waiting area. The manner and style of interviewer when greeting the child (first) and then parent(s) is crucial. The success of the interview can sometimes be predicted by how well the interviewer has “bonded” with the child in the journey from waiting room to clinic room. Conversations about the trip to the clinic, a child’s smart or colourful clothing, or the weather help child, parent, and interviewer, relax.
a) 0-2 years
crying, temper tantrums. shyness and withdrawal. poor social interaction. language delay. refusal to separate. struggles over toilet training,
b) 3-6 years
Separation anxiety. Toileting difficulties. Impulsiveness. Fears. Nightmares and fear Fear of the dark. Refusal to follow directions. Somatisation of stress, (headaches, stomach aches, “not feeling well”). Temper tantrums.
“First five minutes” Continuing the previous theme of common-sense social skills, the interviewer’s main task at the beginning is to put the family at ease and “engage” the child in a low stress conversation, which may include everyday topics plus discussion about clinic-related cues such as “the most comfortable seat”, and objects on the table. Wherever possible, they are allowed and encouraged to explore as a way of relaxing them. It is helpful to set out the process of the interview so that the child and parent understand what to expect (topics to be covered, time, etc.)
c) 6-12 years
Toileting problems (enuresis). Hyperactivity, arguing and defiance. Nightmares, school refusal. Withdrawal or isolation.
d) 12-16 years
Mood variability, including depressive symptoms. Impulsiveness. Sadness and loneliness. Overt aggression. Poor school attendance. Rebellion against authority.
Discussion with child In the majority of instances, the child will have talked about the index accident to one or more relatives, friends or professionals already. The cathartic advantages of a further discussion of the accident are therefore less than many would suppose. What discussion does occur of the actual event and experience of the index accident can, in most cases, be brief. In some cases, a later discussion will take place if PTSD or acute stress disorder is suspected. A “here-and-now” discussion ensues which establishes the child’s own perception of any current difficulties such as sleeping, travelling, home life, school life and functioning, in terms of current anxiety any phobic-type avoidance and during this time, a mental state examination is also carried out.
It is essential therefore, when making a reliable and valid assessment of a child’s accident-related problems, to establish any pre-existing problems and to establish the child’s general physical and psychological health in terms of temperament, self-esteem and general well-being. Structuring the interview with parent and child There are at least five distinct phases of a psychological assessment interview involving a child: pre-interview induction, “first five minutes”, discussion with child, discussion with parent, “closing” of interview. EXPERT WITNESS JOURNAL 65
Discussion with parent A structured interview then takes place covering the following areas: 1) Personal, family and social background. 2) Medical history (outline) of child’s and mother’s pregnancy and child’s early development. 3) Pre-accident history of behavioural difficulties and parent’s psychological well-being since child was born. SPRING 2014
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4) 5) a) b)
Description of index accident. History of psychological problems since accident First 4-8 weeks. Currently
This covers stress symptoms mood and sleep disturbance, generalised anxiety, travel anxiety, social functioning, cognitive functioning, school study effects and substance use/abuse, plus any additional accidents, trauma or life events in the time since the accident. Closing the interview Having established the clear assessment of the child’s psychological difficulties attributable to the accident (and/or attributable to other factors), the interviewer discusses practical “treatment” options with the parent. These may involve one or more of the following:1) Reinforcing the parent’s current behavioural management strategies and providing additional practical advice. A follow- up assessment in six months is, at times, suggested to give the parent the reassurance that further support is available if required.
attuning to and providing for their child’s emotional needs, due to feeling overwhelmed by their own emotional needs. Other family features, such as parental relationship conflict, social difficulties or family debt will also reduce the level of parental availability to a child following a road traffic accident. A child’s natural travel nervousness will be reinforced or even exacerbated by either or both parents themselves being anxious travellers. This is particularly true in families where avoidance of travel becomes the norm. Once a pattern of behavioural or emotional disturbance has been established in a child, parents will draw on pre-existing resources on child management to help modify this pattern i.e., issues of consistency of directions, firmness, level of positive expectation and hopefulness all contribute to overcome a child’s difficulties and distress. A traumatic incident such as a road traffic accident tests a family’s coping strategies and can highlight their dysfunctional coping strategies, which have been dormant or previously concealed. Some of these patterns will be evident in the interview itself (e.g. parents over protectiveness).
2) Signposting parents self-help material that may aid them in supporting their child with particular presenting issues/behaviours. 3) Suggesting a programme of brief behavioural management via a short number of therapy session with a Clinical Psychologist experienced in working with children and families. Children’s behavioural difficulties in this context are often time-limited and positive expectations concerning prognosis need to be raised. Advice, whether this be given by the interviewer, or via a GP, health visitor or specialist Clinical Psychologist, is typically brief, focused and highly practical. Relevance of parental behaviour – the parent-child context In some ways, the assessment is partly of the child as an individual, and partly of the child – parent(s) interaction and relationship as this is of relevance in terms of:a) The reaction to the trauma; b) Maintenance of this reaction and subsequent symptoms; c) Any underlying predisposition to having emotional problems. The child’s reaction to a trauma will be mediated by a parent’s own emotional adjustment. A parent with their own frank psychological difficulties post-accident will be likely to experience difficulties in
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Positive protective factors for a good response to child behavioural difficulties include: High parental self-esteem and self-efficacy (coping), good parental relationship, low family stress and secure parent-child attachment. As regards treatment outcome where advice or therapy is indicated, there is likely to be a good outcome in a family that accepts there is a problem, is committed to resolving the problem and that accepts the formulation and treatment plan. Factors predisposing children to post-traumatic reactions It is common for parents to perceive their children’s (and their own) problems to have been predominantly or totally precipitated by an index event (e.g. road traffic accident). However, careful listening and questioning will often elicit other pre-existing or co-existing factors which can influence coping after an adverse event. These include: • Housing problems (moving house, poor housing); • School problems (poor school achievement, relationship anxieties, moving school, change of teacher: • Family changes (parental conflict/separation, death of parent or grandparent, remarriage, parent-child separation, child abuse, illness in family, birth of a sibling). General practitioner records are crucial in validating a history given by a parent and completing the picture of the family and social context in which an accident occurs. Additional information found does not, in itself, suggest a conscious wish to mislead. There is an understandable over-focusing on the index accident as the one and only key participant cause of the child’s distress. Careful history taking can increase comprehensiveness of this picture. To treat or not to treat The provision of behavioural management advice and or treatment has already been mentioned as being on the agenda in a child assessment. Having said that, most trauma-related problems are time-limited. Specific behavioural interventions can accelerate a natural recovery. Common areas of intervention include: 1) Sleep disturbance e.g. modification of parental response to “bed hopping” or wetting. 2) Separation anxiety e.g. helping child and parent have confidence when apart; 3) Travel anxiety e.g. reinforcing practice, distraction techniques, ensuring parental confidence. 4) Self confidence e.g. increasing parental reinforcement of child’s efforts, raising frequency of child’s self-worth thoughts. EXPERT WITNESS JOURNAL 67
The interviewer, and similar professional colleagues, are not the only providers of such advice although the approach used by clinical psychologists is not only effective but typically efficient in terms of time and effort. Other professionals such as GP’s, health visitors and counsellors also already provide “common sense” advice in these areas, drawing on both their clinical experience and their own child rearing experience. It is important both to the family and the medical-legal system that the intervention, if needed, is timely, easy to access and both effective and efficient. Encouraging children to regain confidence Supporting children who are anxious following a traumatic incident is a comples and often confusing task for parents. The following strategies will provide a solid foundation from which parents can build a child’s confidence depending on the child’s specific needs: 1. Maintaining normal everyday rules, routines and boundaries (bedtimes, house rules, school attendance etc) will help children to feel secure and contained. 2. Parents will be helped by accessing basic information about a child's likely response to a frightening or traumatic accident. This will reduce the risk of parents worrying unduly about their child's post-accident adjustment. 3. Supporting children's motivation to undertake anxietyprovoking tasks by using praise and rewards is likely to increase the speed with which they regain pre-accident confidence. Praise and rewards should be proportionate to the tasks undertaken. 4. Involving a child in developing a hierarchy of feared situations and a reward system will increase the likelihood of their compliance and success in rebuilding confidence. 5. Following a road traffic accident (or other accident) an anxious parent, may not be the best person to support a child. The child is likely to benefit from the support of other confident adults supporting them with exposure tasks. 6. A small number of families will require outside support (therapy) to enable them to rebuild a child's confidence following an accident. Specific medical-legal issues in child assessment Six issues are worthy of mention for the lawyer considering the need for a psychological assessment of a child who has recently been involved in an accident. a) A psychological assessment should be thorough and comprehensive using a structured approach which results in a “multi-axial” summary which explicitly cites: SPRING 2014
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• A diagnosis (if present) using DSM IV or ICD 10 categories; • Predisposing or pre-existing psychological or social factors; • Attribution of symptoms to index accident; • Prognosis and need for treatment. b) This assessment should be carried out in a manner which reassures the child and parent(s) and effectively manages any distress inherent in the process of revisiting accident-related experiences. The process from initial correspondence, to interview procedure and final briefing of family should be seen by the family as helpful and non-intrusive. c) Instructions whether they originate from the claimant’s or defendant’s solicitor or joint instructions should be clearly explained to the parents by both the instructing solicitor and then the instructed psychologist to allay any fears of the interview process itself being unnerving for the child (or parent). d) The process from instruction of expert to receipt of report should be short and typically of the order of six to eight weeks. This is not only to meet demanding legal timescales but also to keep family anxieties to a minimum and to provide advice, if and where appropriate, as soon as possible.
Professor Anba Soopramanien MD, PhD, FRCP
e) In child cases, malingering, total invention of symptoms and disability for obvious gain, is uncommon. Inconsistency of data is typically related to parental anxiety and lack of interviewer clarity. Magnification is common and, again, typically attributable to parental anxiety and can be modified sensitively but rapidly by careful questioning and data collection. f) Causation and attribution in child assessment must be in the basis of the available evidence whether clinical or medical record based. The experienced clinician will be aware of and, at times, make explicit the “range of possible opinions” before stating the final (or provisional) opinion which “ best fits” the available facts. Conclusion Children, like adults, experience the stress and trauma of being in a traumatic event such as a road traffic accident. As such, the assessment of such stress should be reliable, thorough and multi method. In undertaking assessment of children, the clinician should make the process as non-threatening as possible for both child and parent and should provide them with reassurance and where appropriate, practical advice on their continuing coping strategies and/or new coping strategies. Finally, the overall assessment should address the medical-legal issue of reliability, truthfulness, causation and attribution in ways which stand scrutiny and debate and which are independent and assist the court in its final decision. ■ Dr Benjamin Laskey and Dr Hugh Koch are both chartered clinical psychologists.
Honorary Consultant in Spinal Injuries & Rehabilitation Medicine, Salisbury District Hospital
Dr Laskey currently provides regular clinics in Barnstaple, Exeter, Paignton, Plymouth, Taunton and Truro.
Clinical and medico-legal specialist Interest areas: O Spinal Injuries and Back pain O Spinal Cord Injuries O Brain Injuries O Rehabilitation O Whiplash Injuries
Dr Koch currently provide regular clinics in Birmingham, Bristol, Cardiff, Cheltenham and London.
Clinics in Salisbury, Southampton, London; Available for Home Visits Prepares approximately 200 reports per annum Instructions: Claimant 70%; Defendants 30%; SJE 20% Contact: Mrs Kamala Sundaramoorthy, BCom, MBA Tel: 01722410559 Fax: 08721114561 Mob: 07436795689 Email: firstname.lastname@example.org Website: www.anbasoopramanien.com
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Contact address: Hugh Koch Associates, Ground Floor, Festival House, Jessop Avenue, Cheltenham, Gloucestershire, GL50 3SH Telephone: 01242 263715 Fax: 01242 528299 References Koch.H.C.H (1997) DSM and Personal Injury. Solicitors Journal 12 December 1997. Koch HCH & Kevan T (2005) Psychological Injuries XPL, St Albans UK. Laskey, B.J. (2011) Parenting and young anxious children (ACAMH – improving access to CAMHS – Invited paper).
US C AT OM ST E S AN EE D 1-G 37
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Uneasy Bedfellows in Court ?: A Psychiatrist on Orthopaedic Surgeons by Leigh Neal, MD FRCPsych, Consultant Psychiatrist - www.leighneal.co.uk Even before working as a medical expert I could personally attest that orthopaedic surgeons would always beat you at squash, out-ski you and drink you under the table. One common factor shared by these professions is that they are probably the most frequently instructed medical experts in personal injury litigation and in doing so invariably cross-paths EXPERT WITNESS JOURNAL 70
in barristerâ€™s conferences and the courts. It is therefore tempting to rely on personal observation or well-worn stereotypes when characterising orthopaedic experts but I have looked at the medical literature, for a more authoritative and less biased view, which is revelatory in its rather bizarre detail.
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It is probably no surprise that Orthopaedic surgeons are more inherently verbally aggressive and hostile than psychiatrists (Wright et al, 2012) or that psychiatrists have more open personalities and are more agreeable than orthopaedic surgeons (Deary et al, 2007), which of course, also means that psychiatrists are more open to exploitation. Psychiatrists, who do not have to get up in the middle of the night to operate and rarely work at weekends, have less work-related stress and they report fewer clinical work demands than orthopaedic surgeons (Deary et al, 2007). However, this is where the questionably good news for psychiatrist comes to an abrupt end. Orthopaedic Surgeons park their cars more quickly and are more attractive and taller than psychiatrists (Antoni et al, 2006; McCail et al, 2010). I also know that they have more expensive and flashier cars than psychiatrists. Admittedly, I do park my car quite slowly, but exceptions always prove the rule and I know a very tall psychiatrist and a short orthopaedic surgeon. Orthopaedic surgeons are stronger and have larger hands than psychiatrists (Barrett, 1988; Fox et al, 1990), which does not particularly concern me - inferences aside.
The final coup de gras is that psychiatrists show significantly raised mortality compared with orthopaedic surgeons and are particularly more likely to contract ischaemic heart disease, injury, poisoning, and colon cancer (Carpenter et al, 2003). I am fairly sure than even orthopaedic surgeons eventually die of something. However, much it pains me to admit it, there is no getting away from the fact that orthopaedic surgeons are the top-guns of medicine; the Mavericks to the Mr Beans and while while I am sure this article has not revealed anything to them that they did not know already, the very least they can do now is to recommend me to their instructing solicitors. ■
References: Antoni T, Marta A, Antonio M, Maria JB (2006) Phenotypic differences between male physicians, surgeons, and film stars: comparative study. BMJ 2006. Baldwin, P. J., Dodd, M. & Wrate, R. W. (1997) Young Doctors: Work, Health and Welfare . Department of Health.
Orthopaedic Surgeons are more extrovert and are more emotionally stable and less neurotic than psychiatrists (McGeevey et al, Deary et al, 2007). How many psychiatrists do you know that are planning their summer holiday steel-head fishing in Columbia !
Barret D (1988) Are orthopaedic surgeons gorillas? BMJ 1998;297:1638–39.
Slightly more worrying is that Psychiatrists are less conscientiousness about their work than their orthopaedic colleagues (Deary et al, 2007). They suffer from lower levels of job dissatisfaction (Baldwin et al, 1997; Firth-Cozens, 2000) and who honestly would not prefer to be praised for replacing a worn out hip than be beaten up by a cocaine dealer. Psychiatrists have more disciplinary actions against them at work than orthopaedic surgeons (Dehlendorf & Wolfe, 1998) and in particular, psychiatrists have a higher proportion of disciplinary actions for substance misuse than orthopaedic surgeons (Shore, 1982). Male psychiatrists are more often disciplined than orthopaedic surgeons for having sexual relationships with patients (Morrison & Morrison, 2001).
Carpenter, L. M., Swedlow, A. J. & Fear, N. T. (2003) Mortality of doctors in different specialties: findings from a cohort of 20 000 NHS consultants. Occupational and Environmental Medicine, 54, 388–395.
Psychiatrist (who quite frankly should know better) are more likely to be depressed and to have more burnout than orthopaedic surgeons (Deary et al, 1996; Kumar et al, 2005). It seems the GMC is impotent to stop psychiatrists in training using more cocaine, LSD, and cannabis than orthopaedic surgeons (Myers & Weiss, 1987). You may be interested to know that trained psychiatrists tend to favour benzodiazepines, amphetamines and cannabis (Hughes et al, 1992). I find it hard to believe, that psychiatrists are over-represented at Alcoholics Anonymous compared to orthopaedic surgeons (Bissell & Skorina, 1987) but perhaps they are more “open” to admitting they are alcoholics. Psychiatrists are more like to commit suicide than orthopaedic surgeons (Hawton et al, 2001), probably because they know the tricks of the trade.
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Bissell, L. & Skorina, J. (1987) One hundred alcoholic women in medicine: an interview study. JAMA, 257, 2939–2944.
Deary, I. J., Agius, R. M. & Sadler, A. (1996) Personality and stress in consultant psychiatrists. International Journal of Social Psychiatry, 42, 112–123. Dehlendorf, C. E. & Wolfe, S. M. (1998) Physician disciplined for sex-related offences. JAMA, 279, 1883–1888. Donaldson, L. J. (1994b) Sick doctors. BMJ, 309, 557–558. Fox JS, Bell GR A Sweeney PJ (1990) are orthopaedic surgeons really gorillas? BMJ 301:1425–6. Firth-Cozens, J. (2000) The person or the job? Longitudinal studies of UK doctors. In Healthcare Workers: Their Health Risks and How to Minimise Them (Berzelius Symposium 52). Royal Society of Medicine. Hawton, K., Clements, A., Sakarovitch, C., et al (2001) Suicide in doctors: a study of risk according to gender, seniority and specialty in medical practitioners in England and Wales, 1979–1995. Journal of Epidemiology and Community Health, 55, 296–301. © British Orthopaedic Association 2014. Originally published in the Journal of Trauma & Orthopaedics.
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Assessment? by Graham Rogers - Consultant Psychologist Having spent more than 20 years as a psychologist I have become increasingly fascinated by the topic of assessment, or rather, how to do it? The “how to do it” actually has three parts; understanding how to do it, understanding what it really means, and ensuring solicitors, barristers and judges also understand, which is the aim behind the following. This issue is particularly relevant when one considers the assessment of intelligence. This is usually undertaken by the use of a test, more often than not, the use of one by Wechsler, either for adults (WAIS-IV) or for children (WISC-IV). Interestingly, Wechsler (1975) was clear on this point; his tests were only part of what was required when one wanted to assess intelligence. To Wechsler, his tests only assessed a small range of cognitive abilities and as such missed a large number of features that were important in understanding intelligence and how an individual functioned within society. He recognised for example, that training and work (a job) influenced the results with his tests and as such could alter the profile of scores that were found. For example, those people working in construction were often good on the ‘block design’ test, a test of three dimensional problem solving; a product of experience in fitting “square pegs into round holes”. Further, he and others also understood that the Wechsler tests did not measure day-to-day abilities such as social skills, emotional resilience or even rational thought. (Gardner 1983; Sternberg 1985; Goleman 1996; Austin and Saklofske 2005; Stanovich 2009; MacCann 2010; Faguy 2012; Mayer et al 2012; Qualter et al 2012). The limitations of intelligence testing are also linked into the psychologists performing the tests on their clients. Within the test manuals of the earlier versions of the WAIS there was an acknowledgement that a substantial proportion of test results were likely to be wrong because the psychologist had made a mistake. The mistakes were often linked to not only how the test was administered with a client by changing how the test was completed, but also how they were scored. It is unfortunate, but understood by EXPERT WITNESS JOURNAL 72
psychologists to be true, that in using the test, psychologists occasionally stray from the scripts that are provided and in doing so alter the accuracy of the results. The accuracy is now further diminished by the use of computer-generated results where the results are then put into the computer. The computer then provides the analysis at which point, in my experience, psychologists turn off their brains and simply tell people/the court what the computer says. Interestingly, one of the first things I was taught at university in regard to understanding test results/statistics, was to begin by looking at the raw data, the raw scores, before any analysis was undertaken. It is following this that a basic analysis of the data/scores is then conducted which then needs to be examined; computer programmes do not pick up all the interesting features within the results as the programmes are only designed to look for certain common features and as we know within court work we are often dealing with the ‘less common.’ However, if one looks at the basics of an intelligence test, one needs to begin by asking what an intelligence test actually measures. IQ tests measure and can predict, with remarkable accuracy, educational and occupational outcomes (p 11, Kaufman, 1979; p 20, Lichtenberger and Kaufman, 2009; Weiss et al, 2010), they do not measure intelligence per-se. Specifically, “the relationship between education and IQ is monstrous in magnitude,” p 116, Kaufman and Lichtenberger (2006). Further, “FSIQ is an especially strong predictor of occupational success, memory functioning, and school achievement. FSIQ and achievement correlate more strongly than any other two variables known to the behavioural sciences,” p 89, Weiss et al, 2010. In terms of the accuracy of the scores they produce, intelligence tests are highly susceptible to the effects of re-testing and as such when an individual has been tested once any subsequent re-testing is almost certain to lead to an increase in the latter score, especially if the first test score was very low, (Lineweaver and Chelune 2003; SPRING 2014
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Chelune 2003; Whitaker 2008; Weiss et al, 2010; Estevis et al 2012). Hawkins and Tulsky (2003) described this as “if the first score is lower than average, chances are the second (contrasted) score will be higher,” page 226. Simply, if you score at the 2% level on the first testing, there is only a 2% chance of scoring lower on re-testing but a 98% probability the retest score will be higher. One sees that these well-researched and well-known facts often appear to be missed; indeed, research shows that IQ tests are not always reliable measures either of intelligence or of how people function on a day by day basis. (Kaufman and Lichtenberger, 1999; Groth-Marnat et al, 2000; Chelune 2003; Wechsler, 2008; Whitaker 2008; Kaufman 2009; Gordon et al 2010; Benson et al 2010; Levin et al, 2010; Whitaker 2010; Whitaker and Wood 2010; Estevis et al 2012). If one looks more widely one begins to see the excellent work of Brooks and others who have looked at the way cognitive tests score, especially the Wechsler tests. The Wechsler intelligence tests typically use ten sub-tests, smaller tests that are used in combination to produce a score for intelligence or some aspect of intelligence such as an understanding of verbal comprehension. However, what Brooks and others have found is that it is extremely common for one or more of these ten sub-tests to produce a very low score that appears to be distorted when compared to all the others. However, this is a normal score and does not actually show a particular weakness. “Clinicians might be surprised to learn that 20% of healthy children or adults will have one or more very large ‘abnormal’ discrepancies when considering all possible discrepancies on the WISC IV or WAIS IV,” p 199, Brooks et al, (2009). Interpreting the scores accurately is more difficult than one might imagine. The assessment of intelligence requires an ability to complete the test accurately, which in my view requires university training as it is not as easy as it appears, The ability to interpret the results, again, I believe, requires university training and continuous professional development to understand the ways in which the analyses change. Indeed, when selecting an expert one needs to consider the evidence that the professional has undertaken further training in the field of assessment. In moving on from the assessment of intelligence, the other area of interest is the assessment of mental health and personality. Simplistically, mental health is assessed primarily by the use of a clinical interview, a review of historical documents related to the individual being assessed and the use of questionnaires. EXPERT WITNESS JOURNAL 73
There are two types of questionnaires, screening tests and comprehensive tests. The former are often very short, often between 5 and 100 questions, while comprehensive measures are typically much longer, in excess of 200 questions. Screen tests are short measures used in clinics to monitor change in patients. They are designed to over-estimate illness, finding it even when it does not exist. This avoids missing any illness that may indeed be present or developing. The comprehensive measures are more cautious and require the collection of more information but also consider more areas of possible illness. They are used to aid in the diagnosis itself and can produce a ‘personality profile’ which can be used to describe the strengths and weaknesses of the client. However, as these are self-reports tests the patient/client has to read and fill in the questionnaire/test. This provides the first potential source of error; can the client read the questions? These tests have within their technical manuals reading levels, the level of school attainment required to be able to read the test adequately; it is here that there are at least three errors that can occur. Firstly, the reading ability of the client is not assessed meaning they might be given a test which they complete yet which they do not adequately understand. This means they may be answering randomly or inconsistently and thereby producing scores which are not an accurate reflection of their true mental health. Secondly, the wrong reading test is administered. There are reading accuracy tests which ask the client to read a series of individual, single words, leading to a ‘reading age.’ These are often used, but they do not test reading per se, rather, they assess the ability to decode a word to work out how it sounds. This is an important issue in the teaching of reading, but it does not mean that a person who can decode a word knows what it means. A reading comprehension test on the other hand assesses the understanding of words and this is the test that needs to be undertaken, Morey and Ambwani (2008); Archer and Krishnamurthy (2002). Thirdly, the ‘grade level’ of the test cited in the technical manual is misinterpreted. ‘Grade level’ means that the reading ability is at the average level of the average student of that grade/age. Hence, a grade level of 4 is equal to the average level of the average student aged 9 to 10 years old (which is the level for the Personality Assessment Inventory). However, in my experience, this means they need a minimum standard score of 80 to 85 which is how the result is shown for most adult related reading comprehension tests. Grade level 5 is broadly equal to a minimal standard score of 85 to 90 (Trauma Symptom Inventory), grade 6 is equal to 95 to 100 (MMPI- Adolescent version), while grade 7 and 8 are equal to scores over and above 100 (MMPI-2 and MCMI III).
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Strack (2008) noted with the use of the MCMI III, individuals need to “read at minimally the eighth grade level,” p 10. Some questions, as noted by Archer and Krishnamurthy (2002) with the MMPI-A, reach up to the “16th grade level,” see p 32. This is important as it is stated as an example within the technical manual of the MCMI III that where 12 or more questions are omitted, or perhaps “guessed”, the results become invalid. In using mental health and personality tests I am now, after more than twenty year experience, committed to the view that these are the tests where a computer is essential. I have scored and interpreted such tests without a computer but the analysis lacks the detail that the computer brings and is therefore open to numerous opportunities to make errors. In choosing a specific test to discuss I could select the Millon Clinical Multiaxial Inventory, version 3 (MCMI III), but this was standardised on psychiatric patients and as such is limited in its use with other groups. Indeed, in a personal conversation with Stephen Strack (May, 2013), a renowned expert in the use of this test, he stated that its use with criminal populations was based on the view that you had to have a psychiatric condition to commit crime! I also note that it has the highest reading age of almost any test and, as stated within the manual, it is a screening test
and as such, its use is limited. I could discuss the Minnesota Multiphasic Personality Inventory, version 2 (MMPI-2), but with a very high reading ability required and a need for between 2 and 3 hours to undertake the test, its use is again limited. In personal conversation with James Butcher (the lead psychologist in the production of the MMPI-2) in March, 2009, he noted that this was a test where its use with clients needed to be carefully undertaken due to the issues of adequate understanding of the questions. The Personality Assessment Inventory, version 2 (PAI-2), has a lower reading age and typically takes around an hour to administer. This is a well-researched assessment tool and is widely used in America partly because it is accessible to the ‘less able reader’ and partly because it has numerous checks built within it to see if the client is ‘making mistakes.’ The test has 4 obvious checks for distortion plus 5 others where the computer aids the assessment plus what is called a structural profile. Understanding the profile of a “faked” or “distorted” result is essential when completing any questionnaire of mental health/personality. However, the faking of such tests is not always due to a conscious desire to fool the administrator but may reveal something more about the client themselves. Rogers (2008), who also worked on the PAI with Professor Morey, the test designer, stated that “faked” or “distorted” results could be due to many reasons such as social desirability, wanting to impress the psychologist; random responding, answering without care or because they could not read and understand the questions; irrelevant responding, simply not trying; defensiveness, a denial or minimisation of negative symptoms often with a view of trying to make themselves appear more healthy than is really the case; significant psychiatric disturbance, a genuine but extreme mental illness, and so on. As part of my professional development I recently shared a PAI profile with a senior colleague who heads the psychology department in America’s number one rated facility. The profile was distorted but was consistent with the client’s known history. Nevertheless, understanding the nature of the distortion was the difficulty as I was aware that the result was not faked. My colleague was able to show me the importance of one part of the distortion that focused on the clinical areas of mania, schizophrenia and paranoia while removing the focus on the other clinical areas of the profile. My colleague was able to connect the clinical areas of importance to the measures of distortion within the PAI to show that the client had a significant mental illness that might otherwise have been passed away as simply a faked result. Faking with such tests is common and it is why it always
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needs to be considered. However, a common error when a distortion is discovered is to state that it is a deliberate attempt to fake and exaggerate symptoms. Unfortunately, this is overly simplistic and often wrong. Knowing that the results are distorted is one thing, knowing why, is something else and it is this that needs to be understood. It is the understanding of the distortion that needs to be mastered. Mastering assessment needs an understanding not only of how to perform a test but how to interpret the information that comes from it; a process that I have spent more than 20 years developing. It requires a professional to look beyond the obvious to coordinate different streams of information and to ask the question “what does this mean?” Knowing what the numbers mean and breaking them down is the crucial skill required for the court. Without this one diminishes the role of the expert within court and more importantly damages the judicial process. ■ Graham Rogers Consultant Psychologist Graham’s experience includes acting as a consultant within the NHS and having been head of department for a community psychology service in local government. He has appeared and provided live evidence on high profile cases at the Central Criminal Court as well as providing live evidence at the Principal Registry for the Family Division of the High Court. References Archer R. P and Krishnamurthy R (2002) Essentials of MMPI-A Assessment. Hoboken. Wiley. Austin E. J and Saklofske D. H (2005) Far to many intelligences? On the communalities and differences between social, practical and emotional intelligences. In, Roberts R D. (Ed.) Emotional Intelligence: An International Handbook. Ashland. Hogrefe and Huber. Benson N., Hulac D. M and Kranzler J. H (2010) Independent examination of the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS IV): What does the WAIS IV measure? Psychological Assessment. Vol. 22. pp 121 – 130. Brooks B. L, Iverson G. L, Feldman H. H and Holdnack J.A (2009) Minimising misdiagnosis: Psychometric criteria for possible or probable memory impairment. Dementia and Geriatric Cognitive Disorders. Vol. 27. pp 439 – 450. Brooks B. L, Strauss E, Sherman E. M. S, Iverson G.L and Slick D. J (2009) Developments in neuropsychological assessments: Refining Psychometric and Clinical Interpretative Methods. Canadian Psychology. Vol. 50. pp 196 – 209. Chelune G. J (2003) Assessing reliable neuropsychological change. In: Franklin R. D (Ed); Prediction in Forensic and Neuropsychology: Sound Statistical Practices. London. LEA. Estevis E. Basso M. R and Combs D (2012) Effects of practice on the Wechsler Adult Intelligence Scale IV across 3- and 6-month intervals. Clinical Neuropsychologist. Vol. 26. pp 239 – 254. Faguy K (2012) Emotional Intelligence in Health care. Radiologic Technology. Vol. 83. pp 237 – 253.
Goleman D (1996) Emotional Intelligence: Why it can matter more than IQ. London. Bloomsbury. Gordon S. Duff S. Davidson T and Whitaker S (2010) Comparison of the WAIS III and WISC IV in 16 year old special education students. J. of App Research in ID. Vol. 23. pp 197 – 200. Groth-Marnat G, Gallagher R. E, Hale J. B and Kaplan E (2000) The Wechsler Intelligence Scales. In, Groth-Marnat G (Ed.) Neuropsychological Assessment in Clinical Practice: A guide to test interpretation and integration (pp 129-194) New York. Wiley. Hawkins K. A and Tulsky D. S (2003) WAIS (III) WMS (III) Discrepancy Analysis: Six Factor Model Index Discrepancy Base Rates, Implications and a Preliminary Consideration of Utility. In: Tulsky et al (Ed’s) Clinical Interpretation of the WAIS (III) and WMS (III). London. AP Kaufman A. S (1979) Intelligent testing with the WISC-R. Chichester. Wiley and Sons. Kaufman A. S and Lichtenberger E. O. (2006) Assessing Adolescent and Adult Intelligence. Hoboken. Wiley. Levin D. S. Thurman S. K and Kiepert (2010) More than just a memory. In, Current issues in applied memory research. Ed’s. Davies G. M. and Wright D.B. Hove. Psychology Press. Lichtenberger E. O and Kaufman A (2009) Essentials of WAIS IV Assessment. Hoboken. Wiley. Lineweaver T. L and Chelune G. J (2003) Use of the WAIS (III) and WMS (III) in the Context of Serial Assessments: Interpreting Reliable and Meaningful Change. In: Tulsky et al (Ed’s) Clinical Interpretation of the WAIS (III) and WMS (III). London. AP MacCann C (2010) Further examination of emotional intelligence as a standard intelligence: A latent variable analysis of fluid intelligence, crystallised intelligence, and emotional intelligence. Personality and Individual Differences. Vol. 49. pp 490 - 496. Mayer J. D, Panter A. T and Caruso D. R (2012). Does Personal Intelligence Exist? Evidence from a new ability-based measure. Journal of Personality Assessment. Vol. 94. pp 124 – 140. Morey L.C. and Ambwani S (2008) Personality Assessment Inventory. In; The Sage Handbook of Personality Theory and Assessment: Volume 2; Personality Testing and Measurement. London. Sage. Qualter P. Gardner K. J. Pope D. J. Hutchinson J. M. and Whiteley (2012) Ability Emotional Intelligence, Trait Emotional Intelligence, and Academic Success in British Secondary Schools: A 5 year Longitudinal Study. Learning and Individual Differences. Vol. 22. pp 83 – 91. Rogers R. (2008) Clinical Assessment of Malingering and Deception; 3rd Ed’n. New York. The Guilford Press. Stanovich K. E (2009) What intelligence tests miss: The psychology of rational thought. New Haven. YUP. Wechsler D. (1975) Intelligence defined and undefined: a relativistic appraisal. American Psychologist. Vol. 30 pp 135 – 139. Wechsler D (2008) WAIS IV: Technical manual. San Antonio, TX. The Psychological Corporation. Weiss L. G, Saklofske D.H, Coalson D and Engi Raiford S (2010) WAIS IV: Clinical use and Interpretation. London. AP Whitaker S (2008) The Stability of IQ in People With Low Intellectual Ability: An Analysis of the Literature. Intellectual and Developmental Disabilities. Vol. 46. pp 120-128. Whitaker S (2010) Error in the estimation of intellectual ability in the low range using the WISC-IV and WAIS-III. Personality and Individual Differences. Vol. 48. pp 517-521. Whitaker S and Wood C (2008) The distribution of scaled scores and possible floor effects in the WISC III and WAIS III. J. of App Research in ID. Vol. 21. pp 136 – 141.
Gardner H (1983) Frames of Mind: The theory of multiple intelligences. New York. Basic Books.
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Needs Assessment in Spinal Cord and Acquired Brain Injuries Soopramanien A (1) Paddison S (2) Freestone C (3) Rogers S (4) De la Fontaine S (5) Clinical complications, emotional and social needs of patients are not always addressed in the community, this is what we we have observed in the course of doing medico-legal work. People who have experienced a spinal cord injury (SCI) or acquired brain injury (ABI) will often have access to excellent inpatient facilities. However at discharge from hospital, a few may be facing the daunting task of dealing with a medico-legal case that may take months or years to settle. For those without a legal claim and solely reliant on state funding, their house may not be adapted at discharge or the care package may not meet their needs. Who do they contact after discharge to complain about leaking in between intermittent catheters, constipation, catheter blockages, a skin breakdown or severe spasticity? Their GPs or local teams may not be familiar with issues of neurological rehabilitation. Many are left to struggle physically and emotionally on their own, since very few places (except spinal units) offer long-term meaningful follow-up. Even spinal units now cannot keep up with their ever-increasing number of patients they look after. It is obvious that the on-going rehabilitation needs of these patients are not always addressed. We consider that, with our expertise, we can offer some help to reverse that trend. The best way of achieving this is to replicate what happens daily in a rehabilitation setting and bring together a group of experienced clinicians used to offering a team approach to rehabilitation and devising treatment plans for people with the above conditions. Access to professionals with real expertise in the field of specialist rehabilitation is vital. Accordingly we have recently formed an organisation under the name of Complex Neurological Consulting (CNC) to provide a uniquely specialised range of services to clients with neurological conditions. We are a group of multidisciplinary health care professionals with extensive experience of working in spinal cord and brain injury rehabilitation, within the NHS and privately funded healthcare (see our profile on the CNC website). We also have a long track record of working together with case managers and solicitors, and our assessment and advice is impartial. EXPERT WITNESS JOURNAL 76
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As our workload expands, we plan to recruit other experienced colleagues. The initial service to be established is an outpatient clinic to identify an individual’s needs ensuring a creative, collaborative and problem solving approach to all of the individual’s identified challenges. The clinic appointment will generate a report identifying issues and actions required. This report can be used as a basis on which to formulate a local management plan and/ or assist with evidence during the litigation process. We may not have all solutions, as there can be many variables outside of our control. We are keen on offering a truly specialised service ensuring that the needs of the individual are comprehensively addressed. We undertake a one-stop multi-disciplinary assessment: the whole team sees the client at one clinic session, having gathered information on the individual before they attend and, where possible, having identified relevant tests in advance. We will jointly assess the health, care and management of the individual, ensuring a collaborative and comprehensive approach. We can carry out a full range of tests at our clinics, and in Salisbury we may have facilities for overnight stays together with carers or family. We can provide treatment, education, and training plans for patients, their family, carers and support workers. We are also willing to work with the client’s local team to address the goals and needs identified in our assessments. As time will allow, we may use modern technology like Telerehabilitation to monitor their progress, provide remote access to speech and language therapy as well as clinical psychology, or supervise therapy sessions.
Clinic sites: Salisbury District Hospital. Royal National Orthopaedic Hospital, Bolsover Street, (Central London). Both venues are wheelchair accessible. The first clinic will be for SCI around 15 May 2014 in Salisbury. Liaison with local services and key professionals involved e.g. Case Manager, Therapists, Medical and Care Experts is a central aspect of the service. Please see our website www.complexneurologicalconsulting.co.uk For details of the team and for further information. (1) Professor Anba Soopramanien, MD PhD FRCP, Consultant in Spinal Injuries and Rehabilitation Medicine, Visiting Professor University of Bournemouth (2) Mrs Susan Paddison, MCSP Clinical Specialist Physiotherapist in Spinal Cord Injuries (3) Mr Chris Freestone, RN Senior Nurse and Case Manager (4) Mrs Sandra Rogers, Dip OT Senior Occupational Therapist and Case Manager. (5) Mrs Sally de la Fontaine, MCSP Senior Physiotherapist, specialised in Acquired Brain Injury.
Process Anybody can refer to the clinic: patients, their families and therapist, GPs or Solicitors. Referral to the clinic will result in a triage form being completed or contact being made via telephone or Skype. This will then identify the professionals required at the appointment. A Consultant in Rehabilitation, Physiotherapist, Occupational Therapist and Nurse Case Manager will attend the clinic in the majority of cases for spinal cord injury patients. In the case of acquired brain injury the initial assessment will also include a clinical psychologist. Other members of the multi disciplinary team e.g. Speech and Language Therapist will be identified during the Triage process. This assessment of need provides an individualised approach to clients regarding their conditions. Whether dealing with ABI or SCI, we will ensure challenges and needs are incorporated into the assessment period, the appointment time and duration reflecting this. This “One Stop Shop” concept ensures efficient and effective use of resources and negates as far as possible the need for numerous, potentially fragmented interactions with a variety of health professionals. We are aware that people with ABI may require two appointments due to fatigue. EXPERT WITNESS JOURNAL 77
Tel: 07969 238 599
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Expert Assessment, Mindful Treatment, Feeding Positive Growth by Michelle O’Sullivan. experienced Expert Witness, Chartered Forensic Psychologist, Registered Practitioner Psychologist - Full Member of the BPS Division of Forensic Psychology, Certified Expert Witness, Associate Fellow of the BPS, Full Registration with the HCPC Michelle O’Sullivan provides Expert Witness services for The Psychological Clinic, formally known as “Psychological Services”. Based in Bracknell, Berkshire, The Psychological Clinic provides expert witness services which are conveniently located in the South-East region of the UK. These services extend nationwide throughout the UK and Ireland. Michelle O’Sullivan has over 12 years of practical clinical experience within a range of forensic settings since completing her academic qualifications in 2001. These settings include the Prison Service, Probation Service, Youth Offending Service, Community Mental Health Services, Child and Adolescent Mental Health Services and Secure Forensic Hospitals. She maintains good links with these services ensuring familiarity with their procedures and service provisions. She remains clinically active in practice with offenders and victims on a weekly basis while also directing the BPS accredited MSc and BSc. (Hons) Forensic Psychology courses at Bedfordshire University. This mix of professional practice ensures that all services provided are drawn from current and up to date clinical and academic expertise. Michelle O’Sullivan works clinically with both offenders and victims. She works within the Criminal and Civil legal spheres and has provided expert assessments for Crown Courts, Parole Boards, Mental Health Tribunals, Immigration Tribunals and a range of Civil Case hearings. She has provided expert assessments on the instruction of the CPS, defence solicitors, applicant and respondent solicitors, rehabilitation agencies and employers. She works with children, adolescents, adults, males and females.
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Specialist assessment areas include the following; Risk Assessment of General Offending, Violence, Sexual Offending, Personality Disorder, Mental Illness, PTSD, Anxiety, Depression, Vulnerable Witnesses, Cognitive Assessment of Learning Difficulty, Memory, Suggestibility, Return To Work Assessments and Guidance with Treatment and Risk Management Plans.
Ms Michelle O'Sullivan Chartered Forensic Psychologist, Registered Practitioner Psychologist with the BPS (British Psychological Services) and HCPC (Health and Care Professions Council) BSc. (Hon), MSc., CPSYCHOL, AFBPsS. Specialist assessment in risk of offending behaviours (e.g. violent, sexual, substance misuse), needs assessments (e.g. mental health, offending behaviours, risk management), cognitive ability and competence assessments for criminal, family and civil legal proceedings. Various treatment approaches offered including CBT, EMDR, EFT among others to address mental health problems such as anxiety, depression, trauma related difficulties. Assessment and treatment with children, adolescent and adult populations. Contact: Miss Michelle O'Sullivan Tel: 07788 428 289 Email: email@example.com Web: www.thepsychologicalclinic.com The Psychological Clinic PO Box 4102, Bracknell, Berkshire RG42 9FQ
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An expert assessment can be arranged within the community, hospital or secure settings and Michelle is happy to organise the client interview where ever is most suitable and convenient. Interview rooms are available in Bracknell just a few minutes away from the train station for those within a convenient commute from anywhere linking with London Waterloo or Reading train stations. A detailed breakdown of fee estimates can be provided upon receipt of an initial enquiry. With confirmation of intention to proceed, a date can be offered to conduct the assessment interview usually within a couple of weeks. The full written report is normally available within 10 working days following the assessment interview. Availability for attendance at a legal hearing can be arranged if required. Many of the expert assessments conducted by Michelle O’Sullivan in the past year have been via word of mouth and recommendation from barristers and solicitors. These are the best references any practitioner could hope to provide. ■
Contribute to our July Forensics Review. In our next issue we will be reviewing Forensics Europe Expo and reporting on the use of Expert Witnesses in the Pistorious trial. If you want to showcase your credentials, best practices or thought leadership, get in touch. Deadline for submissions and display advertising: 20th June 2014. Email firstname.lastname@example.org or phone 0161 834 0017 to discuss the opportunities.
For further information on these expert assessments, other services from the clinic or just to note contact details for a future occasion, please visit the new website www.thepsychologicalclinic.com or e mail Michelle O’Sullivan directly at email@example.com
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In Praise of Detailed â€œUnnecessaryâ€? History by Marta Elian M.D Consultant Neurologist & Expert Witness â€œWhat does the question have to do with the accident? I am often asked during a consultation. When relating â€œunnecessary detailsâ€? re private life, work, plans, ambitions, leisure etc inadvertently the truth is unwittingly spelt out. A few examples follow: Because of severe posttraumatic back pain a middle aged woman allegedly had to stop working. When inquiring details of her private life it slowly emerged that circumstances â€“ new husband, new address â€“ have changed five years before the accident; this was the time when she stopped working. Both a young man and a tattoo shop: complained to the police about the otherâ€™s aggressive behaviour. The dissatisfied young man returned to the shop to ask for his money back for his commissioned unsuccessful tattoo. His inappropriate behaviour â€“ he explained was the result of torture by needle and by electric shock during five years incarceration in a Syrian prison-reason unknown. Questioning his present: as a result of the above he is on unemployment benefit in a two room council flat. Questioning: why he commissioned a tattoo? â€œFor Symmetryâ€? was the rather mysterious answer. When undressing for examination â€œtattoo for symmetryâ€? became understandable: both right extremities were densely covered by elaborate tattoos. On the left only a modest recent one.
denied promotion and the permanent variety of her managerial job. She became anxious/depressed when informed that danger of repeated dislocations and possible subsequent disability will remain for the rest of her life. The denial of promotion was based on her alleged â€œemotional lability now and beforeâ€? i.e. inability to function under stress. The supervisor claimed that only his leniency and benevolence allowed her to keep the present job. He met her only after the accident.
Dr Marta Elian
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When did he acquire the elaborate right sided tattoos? â€œWhile in the prison for five years â€“ Plenty of time.â€?
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I found it inconceivable that anybody allegedly receiving â€œrepeated electric shocks and needle torture for several yearsâ€? would volunteer â€“ in fact demand â€“ to receive many more needle pricks for tattoos?
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At this point his carefully constructed story (including benefits) disintegrated. After an accident resulting in dislocation of cervical spines â€“ fixed by a plate, a Young Asian woman was EXPERT WITNESS JOURNAL 80
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Three experts: the orthopaedic, the rheumatology and the neurosurgical supported the new bossâ€™s opinion stating that her current psychological symptoms are due to her â€œweak personalityâ€?. Exploring her private life â€œunnecessarilyâ€? it emerged that after a singularly traumatic divorce she was able to care and to provide for her child as a single mother without financial or other outside help. No complaints, no self pity. On further questioning it emerged that during this difficult period she found enough energy, willpower and time to obtain a higher university degree while working and being a single mother. An unusual determination and perseverance indicating - even proving, a previously robust as opposed to a weak personality. Based on her private history details my argument helped her to receive a respectable compensation as well as the desired job. These few examples and many more available allow us and even force us to conclude the â€œunnecessary questionsâ€? are often necessary and useful indeed. â– Marta Elian M.D
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Should a Treating Clinician also Act as an Expert for the Court? A UK/USA Perspective by Dr Hugh Koch, Registered Clinical Psychologist, Cheltenham, UK Prof. Bruce Leckart, Clinical Psychologist, Los Angeles,USA Mr Francis Lillie, Registered Clinical Psychologist, London, UK
Dr Smith, an experienced psychologist and therapist, prepared a medico-legal report on a claimant, who had been involved in a serious road accident. He diagnosed a phobia of driving and trauma-related depression and recommended cognitive behavioural therapy. One year later he agreed to provide this therapy, during which a number of other causative and maintaining factors emerged, many of which were highly personal. The claimant also had difficulty being totally open and honest about these factors. Therapy was successful but took longer than expected. Dr Smith had a significant dilemma when asked to update his evidence as to his responsibility to the court and his clinical responsibility to the claimant whom he now knew very well and whom had trusted him with confidential information. EXPERT WITNESS JOURNAL 82
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Civil litigation in the UK and USA frequently requires the court to obtain evidence and opinion from clinical and forensic psychologists and psychiatrists on a number of varied issues pertaining to the psychological status and history of a claimant or litigant. The UK-based Civil Procedure Rules require an expert to be impartial, independent and to produce an unbiased and robust opinion. Similarly, while the laws of each state in the United States are somewhat variable, the general consensus in the USA is that the same impartiality and objectivity is required by both legal standards and psychological ethics. It is typically the case that mental health professionals who act as court experts are also practising clinicians. However, when it comes to giving evidence, the roles of clinician and court expert need to be clearly differentiated. In our view it is extremely rare for both roles to be undertaken by one individual and this should be avoided where possible. This article summarises professional views on both sides of the Atlantic on this clinical issues and develops themes initially laid out in Koch, Raffle & Lillie (2012) and Leckart (2013). Therapist responsibility to the court When providing therapy, the psychologist/psychiatrist-astherapist will form a ‘therapeutic alliance’ with a patient; their role is to encourage the patient to feel understood and cared for by a therapist. It is seen as a private and privileged relationship under almost all circumstances, and applies to all schools of psychological therapy. Good therapists undertake a relatively comprehensive evaluation of their patient at the outset or just prior to embarking on therapy, but this is largely based on the patient’s self-report and the therapist’s objective observations, which may or may not be backed up by relevant medical records, additional correspondence from other clinicians, and psychological testing data. However, he* typically does not form a rigorous medico-legal expert opinion on a patient’s reliability or consider attribution and causation to a significant extent. The formulation of treatment goals and outcomes is predominately focused on current symptomatology, background history and desired and agreed clinical objectives, but this is not from a medico-legal perspective (Koch & Kevan, 2005). Having provided treatment for patient, a therapist may, quite appropriately, be required by the court to provide information and opinion on: • Reason for initial treatment. • Factors under discussion in treatment. • Outcome and prognosis of treatment. This is not considered expert opinion because a comprehensive medico-legal evaluation including causation is not fully addressed.
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Given the foregoing relationship and objectives, it is not possible for a psychologist/psychiatrist to subsequently don the ‘expert hat’ and provide an objective, independent assessment of their patient in which causation, attribution and overall prognosis are reliably addressed. Such opinion could damage the therapeutic relationship (if ongoing) if the therapist-turned-expert identified information that contradicted his patient’s claims. Therefore, there is the ever-present danger of unintentional bias and/or therapist advocacy on behalf of the client (Moser & Barbrack, 2011). If a therapist believes he may be called as a court witness at a future date, this should be addressed at the onset of therapy. This could result in the patient’s decision to find a different therapist. Nevertheless, the therapist’s appearance in court can have destructive effects on the therapeutic relationship. Resulting negative claimant feelings can adversely affect the therapy and damage the relationship between claimant and ‘therapist-now-expert’. The therapist who testifies about his client will always be subject to intentional or unintentional bias in that he is required to act in the patient’s interest having already formed an empathic relationship with the patient. When involved with expert work, his role changes (Campbell & Lorandos, 2010). Mental Health Professional’s duties in court as expert The mental health practitioner, e.g. psychiatrist, psychologist or licensed clinical social worker, who is asked by the court to provide an independent and comprehensive assessment of a claimant (whom he has never seen before, in any capacity) needs to establish a professional, calm and pleasant relationship with the claimant, without necessarily showing ‘unconditional’ empathy, sympathy or acceptance of the claimant’s view(s) to the exclusion of other evidence and opinions. This ‘arms-length’ stance allows the clinician-as-expert to form the most reliable view, thus helping the court make as valid a judgment as possible on the evidence available. Survey of UK (& USA) Psychologist and Psychiatrist In December 2013, we surveyed 98 psychologists and psychiatrists on their views about treating clinicians being expert witnesses. The result were as follows:Of the 98 sampled, 24 replied. 76% were psychologists and, 24% were psychiatrists. The results indicated that 87 % felt it was not possible to act both independent expert and therapist for any one particular claimant. 71% felt that once treating a client, it was not possible then to act as independent expert for that client. 80 % thought that having produced an independent medico-legal report, one could not then provide treatment for that client. 86 % thought that if one did offer treatment for the above client, one could not then still act as a fully independent expert subsequently. SPRING 2014
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“It is very difficult to remain/convince others of objectivity when having a vested interest in the outcome of therapy”. “It would not be possible to ‘un-know’ information already gained about the individual through previous contact – this complicates things as the information during treatment was not given with consent that this could be used at a later stage for a court report”.
of confidential information. It is vital to inform patients whenever confidentiality (often assumed) does not apply. In conclusion, attempting to treat a person and evaluate them in a legal context typically creates an irreconcilable role conflict – this should be avoided wherever possible. ■
These preliminary findings are to be followed up with interested experts with a comprehensive study.
References Bond T & Sandhu A (2010) Therapist in Court, Sage, London.
Conclusion Both therapist and lawyers need to be cognisant of the dangers inherent in mixing roles of expert opinion giving and therapy provision. Lawyers may wish to ‘be efficient’ and ‘save costs’ by using the therapist-as-expert but this will be at the expense of forensic objectivity and impartiality.
Campbell T.W & Lorandos, D. (2010) Cross-examining experts in the behavioural sciences, Thomas-West, St Paul, MN.
Sometimes, experienced therapists find themselves as ‘fish out of water’ in the legal system (Bond & Sandhu, 2010; Gutheil & Hillard, 2001). Without knowledge of the legal system, they can fall foul of the legal pitfalls which partially or totally invalidate their professional opinions and make them susceptible to challenge by the court which operates from a different perspective to one of the clinical relationship and empathic support. After due consideration of how this important issue impinges on the search for ‘evidential certainty’ (Koch, 2014), we have a series of recommendations for experts in this field of activity in both the UK and USA jurisdictions: 1. The two roles of psychologist and psychiatrist activity as expert witnesses and therapists should always be separated because they have different clinical, legal and ethical requirements and responsibilities. 2. In the event of any potential conflict of interest, the clinician should discuss this with the instructing legal team and/or peer supervisor to establish the conflicting relationship issues. Such conflicts should always be disclosed. 3. Treating clinicians should, whenever litigation is involved or potentially involved, discuss the issue and ramifications of any disclosure by the claimant/patient
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Guthiel T.G & Hillard J.T (2001) The treating psychologist thrust into the role of expert witness Psychiatric services. Nov.52, 11, 1527. Koch H.C.H & Kevan K (2005) Psychological injuries, XPL Publishing, London. Koch H.C.H, Raffle S & Lillie F.J.L (2012) Degrees of separation. Legal & Medical Magazine, January. Koch HCH (2014 – in press) Expert Witness Newsletter. Spring 2014. Leckart B (2013) The mental health professionals in litigation, WETC Psychology Newsletter, May. 1, 52. Moser R.S & Barbrack C (2011) An urgent call: treating psychologists are not expert witnesses, www.practiceshapes.com. Raffle S.M. (2011) The therapist as expert witness, www.experts.com; when therapists are therapists, www.TASAnet.com and www.HGExperts.com see also www.rafflemd.com (www.psychiatristexpertwitness.com). About the authors: Hugh Koch is a clinical psychologist practicing in Cheltenham. Francis Lillie is a clinical, sports and exercise psychologist in London. Bruce Leckart is a clinical psychologist practicing in Los Angeles (Westwood Evaluation and Treatment Centre), and also Professor Emeritus of Psychology at San Diego State University
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Mixed Reaction to Government Review According to the two leading bodies, the Government’s recent review of cosmetic interventions doesn’t cut it. Coverage in the national papers has jumped on some colourful reactions from the key figures. The British Association of Aesthetic Plastic Surgeons, the only organisation based at the Royal College of Surgeons solely dedicated to the advancement and education of aesthetic ('cosmetic') surgery, has condemned the lack of action by the Department of Health despite the recommendations resulting from Sir Bruce Keogh's recent review into the sector. The BAAPS, which represents the vast majority of NHS plastic surgeons in private practice, fear it's "business as usual" in an arena known as the "Wild West." Despite the BAAPS campaigning over the last decade for the Government to pass legislation to keep Britons safe from untested procedures and unqualified practitioners, the announcement reveals that very little regulation is being implemented, in real terms. According to consultant plastic surgeon and BAAPS President Rajiv Grover; "Frankly, we are no less than appalled at the lack of action taken - this review, not the first one conducted into the sector, represents yet another thoroughly wasted opportunity to ensure patient safety. With all the evidence provided by the clinical community, choosing not to reclassify fillers as medicines with immediate effect or setting up any kind of compulsory register beggars belief. “Legislators have clearly been paying only lip service to the sector's dire warnings that dermal fillers are a crisis waiting to happen. Most shockingly of all, the fact that there is no requirement for the actual surgeon involved to obtain consent for the procedure makes a mockery of the entire process. It's business as usual in the Wild West and the message from the Government is clear: roll up and feel free to have a stab."
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A recent survey by the BAAPS revealed that as many as two out of three surgeons were seeing patients presenting with facial injectable ('dermal filler') complications. Nearly nine out of ten of those with permanent fillers required corrective surgery or were inoperable. Echoing these fears, Tim Goodacre, Chair of Professional Standards for the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS), said: “The public has been waiting for a long time to see what the government will do to improve standards and ensure better protection. Whilst there are firm recommendations around medical devices and confirmation that only doctors on the specialist register should perform cosmetic surgery, it is wrong that vulnerable patients could suffer from a two tier system created by voluntary registration of practitioners and there is still work to do to ensure that bad practices are abolished. “Whilst it is gratifying to see the Government endorse many of the findings of Sir Bruce Keogh’s report, we had really been hoping for more action, rather than endorsement. Unless we have clear decisive action targeting bad practice, with the full force of the law against those that fail to adhere to these higher standards, then it will allow irresponsible and often dangerous practices to continue, to the detriment of patient safety.” ■ Reference websites British Association of Aesthetic Plastic Surgeons www.baaps.org.uk British Association of Plastic, Reconstructive and Aesthetic Surgeons www.bapras.org.uk
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Genetic Link Between Diseases "Our study has uncovered a remarkable genetic link between two very different but distressing diseases â€“ a rare inherited condition that turns muscles into bone, and a deadly form of childhood brain cancer" Dr Chris Jones Cancer Research UK-funded scientists may have discovered a new way to treat a type of childhood brain tumour that has proved incurable up until now, according to a study published in Nature Genetics*. When Cancer Research UK funded scientists in London, studied biopsy samples from a type of childhood glioma called diffuse intrinsic pontine glioma, or DIPG, they found that a quarter of them had an extremely rare genetic flaw which could be a potential new drug target. This flaw has not been found in any other type of cancer, but is also found in patients with a childhood development disorder known as Stone Man Syndrome, also known as fibrodysplasia ossificans progressiva, or FOP, where muscles can turn into bone. If the genetic flaw is present in all cells of the body then a child will develop FOP, however if it only occurs in the brain then it could lead to DIPG, which is universally fatal. Crucially, drugs are already being developed to treat this developmental syndrome, and itâ€™s hoped that the same
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drugs might also help children with this rare form of brain tumour. Study leader Dr Chris Jones, Head of the Glioma Team at The Institute of Cancer Research, London, said: "We believe that the genetic defect linking these diseases is a potential target for cancer therapies, not least because drugs already exist against similar targets in other cancers. Understanding the link between fibrodysplasia ossificans progressiva and diffuse intrinsic pontine glioma could offer new hope to patients and their families affected by both conditions." The study is part of the Cancer Research UK Genomics Initiative, which is funded by Cancer Research UK through the Catalyst Club. Nell Barrie, Cancer Research UKâ€™s senior science communication manager, said: "Although almost eight in 10 children with cancer now survive their disease, there is still a long way to go for certain childhood cancers. Further research is essential to discovering better and kinder treatments, particularly for brain tumours. Studies like this lay the groundwork for future treatments to ensure that there are more childhood cancer survivors in the years to come." â– Reference *Taylor, K. Et al. Recurrent activating ACVR1/ALK2 mutations in diffuse intrinsic pontine glioma. Nature Genetics (2014).
Mr John Michael Porter Consultant Plastic Surgeon MS, FRCS, FRCS (Plastic Surgery)
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The Droitwich Spa Hospital St Andrews Road, Droitwich Spa Worcestershire WR9 8DN Tel: 07932 337 812 Email: firstname.lastname@example.org
Mr Porter has attended medicolegal training courses from 1996 until 2002 and in 2012. He was an NHS consultant plastic surgeon from 1991 to 2012, with interests in breast surgery, hand surgery and skin cancer. He was in private practice from 1996 to 2008. Mr Porter undertakes personal injury and clinical negligence work, within his areas of special expertise. He possesses the Bond Solon Cert MR Part 1 certificate. Mr Porter is available at Consulting rooms in Droitwich and Wolverhampton.
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Mapping Cancer’s ‘Underground’ Networks Building up a London Underground-style map of signalling pathways is pinpointing cancer’s weak points, according to The Institute of Cancer Research. As reported on their website, the author states that the similarities between cancer and the London Underground may not immediately leap to mind, but the parallels between them are driving an exciting new area of research that could open up fresh approaches to treatment.
signalling networks. “Understanding how a pathway works may uncover a weak spot in the cancer armour that we can target with drugs. Or we can see how drug resistance is happening,” Dr Bakal says.
Jumbling up of signalling networks is now recognised as a key cause of cancer, and researchers at The ICR are busy trying to understand just how these signals work – and how the wiring goes wrong.
“Signalling networks are organised like many other kinds of networks, such as the London tube lines, where there are many different routes to take if a blockade occurs. For example, if you normally take the underground using the Piccadilly line from Kings Cross to South Kensington, but one day Hyde Park Station is closed, you can also take the Circle line. Similarly, many cancers are initially caused by biochemical activity on a single part of the network. While a single drug can cause a blockade in the line, and perhaps treat a cancer temporarily, cancer cells develop resistance to drugs by activating other biochemical pathways that bypass the drug-induced blockade. So in order to treat cancers effectively, we need to generate maps of cellular networks, and determine drug combinations that can shut down multiple lines and pathways at the same time. Without those maps you wouldn’t know which combinations will work.” ■
Dr Chris Bakal heads the dynamical cell systems team, which is mapping the architecture and dynamics of cell
Find out more by visiting The Institute of Cancer Research website www.icr.ac.uk
Within our cells, thousands of proteins are wired together through dynamic – and complex – signalling pathways, sending out instructions to change, grow, move, cope with stress, live or die. Scientists know quite a lot about many of the individual proteins within these signalling pathways, but far less about how they intricately intertwine within networks – networks that look quite a lot like the London Underground map.
Dr Colin S B Roch-Berry Consultant Clinical Oncologist LLM, MB, BS, FRCR I have been in cancer work for 38 years. Specialist interests in gynaecological, breast, lung, gastrointestinal, rectal, thyroid and prostate cancer. Experience in modalities of: Radiotherapy - damage, overdose/underdose and accident, Chemotherapy misuse and overdose, Lung Disease - mesothelioma and industrial lung disease. I have been trained in the legal aspects of report writing and on average I receive 20 new instructions from solicitors per year. I am a fellow of the Royal College of Radiologists and a member of the British Medical Association, European Society for Therapeutic Radiology and Oncology, American Society of Clinical Oncologists, British Oncology Association, Medical Legal Society. Tel: 01242 862 703 Fax: 01242 862 703 Email: email@example.com Widdecombe, Badgeworth Lane, Badgeworth Cheltenham Gloucestershire GL51 4UH
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Cambridge Study Finds Prostate Cancer Tests Underestimate Disease Tests to grade and stage prostate cancer underestimated the severity of the disease in half of men whose cancers would have been classified as â€˜slow growingâ€™ in a study* published in the British Journal of Cancer. â€œOur results show that the severity of up to half of menâ€™s prostate cancers may be underestimated when relying on tests before they have surgery." Mr Greg Shaw, study author Cancer Research UK scientists from the University of Cambridge compared the staging and grading of over 800 menâ€™s cancers before and after they had surgery to remove their prostate. They found that in the 415 men whose prostate cancer was classified as slow growing and confined to just the prostate after an initial biopsy, half (209) â€“ when assessed again after surgery â€“ had more aggressive cancer than originally thought. And almost a third (131) had cancers that had spread beyond the prostate.
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Mr Greg Shaw, a urological surgeon and one of the study authors based at the Cancer Research UK Cambridge Institute, said: â€œOur results show that the severity of up to half of menâ€™s prostate cancers may be underestimated when relying on tests before they have surgery. â€œThis highlights the urgent need for better tests to define how aggressive a prostate cancer is from the outset, building on diagnostic tests like MRI scans, and new biopsy techniques which help to more accurately define the extent of the prostate cancer. This would then enable us to counsel patients with more certainty whether the prostate cancer identified is suitable for active surveillance or not.â€? â€œWhilst active surveillance would seem to be a safe approach for some men, nearly a third will end up needing surgery or radiotherapy within five years.â€? Prostate cancer is the most common cancer in men in the UK with around 41,700 new cases diagnosed every year. There were around 10,800 deaths in the UK from prostate cancer last year**. Professor Malcolm Mason, Cancer Research UKâ€™s prostate cancer expert, said: â€œAt the moment the biopsy, MRI and PSA tests that we use to assess the severity of prostate cancers are the best methods we have but, as this study shows, they donâ€™t always get it right.
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â€œDespite the limitations that this study shows, all evidence so far points to active surveillance being safe provided men are carefully selected. But we need better methods of assigning a grade and stage so that no man has to unnecessarily undergo treatment, while at the same time making sure we detect and treat the cancers that really need it.â€? â– References * Shaw GL et al. Identification of pathologically insignificant prostate cancer is not accurate in unscreened men (2014) British Journal of Cancer. ** Based on 2011 incidence and mortality information for prostate cancer in the UK. Websites Cancer Research UK Cambridge Institute www.cruk.cam.ac.uk Cancer Research UK www.cancerresearchuk.org
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Cultural Difference Matters in Innocence and Guilt Concepts by Dr Bashir Qureshi Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. Expert Witness in GP Clinical Negligence. In the Western Culture, especially in Britain, everyone is considered innocent before being proved guilty; a trial is needed. In the Eastern Culture, including Australia, USA and India, everyone is considered guilty before being proved innocent; a trial may or may not be held, as punishment is prescribed already. In the UK, we can only understand the cultural views, conflicts and contradictions when we remain impartial and feel respect for both cultures. Justice should be done and be seen to be done; it is a popular British custom which may not apply to all countries. It is folly to believe that we are the only one who is right and others are wrong. Let me tell you a true story while hiding the identities of real characters. An English General Practitioner (GP) owned a General Medical Practice in East London. He employed an Australian GP as salaried assistant and a self employed British Asian Locum GP to deputise him whenever, he went on holiday. The population landscape in various parts of London changes constantly for various economic and political reasons. In 1990s his practice had majority of English patients but since 2001 the majority patients became British Asians, some of those spoke only Asian languages fluently and some broken English. Consequently, the English women receptionists left and were replaced by British Indian women receptionists. The English woman secretary remained in the practice. Every thing changes in this world except this principle (Aristotle). EXPERT WITNESS JOURNAL 89
One morning the British Asian Locum GP finished his GP surgery (Clinic) session and went home. He received a phone call from the Australian Salaried GP about a patient seen by the locum a week ago. The Locum GP went back to see the caller for face to face talk in a consulting room, so as to avoid any kind of misunderstanding. In the presence of the British Indian Practice Manager, the Australian GP informed the British Asian Locum GP that a local Coroner has rung to tell that a British Indian male patient has died of a heart attack who was seen at this Practice 5 days ago and given Amoxicillin antibiotic. What did the consultation records reveal? He joined this practice only one week ago and his original paper notes had not arrived from his previous GP. The Australian GP told that he was seen by the British Asian Locum GP, according to a computer list of appointments, and asked if he can recollect what consultation took place? The British Asian Locum GP asked them to give him the consultation records of this patient, which he had written, as that is the only record which is of legal value in a Coroner’s inquest and memories can be inaccurate. The Practice Manger produced an empty envelope of new paper records which did not contain the note slip (page) with that day’s consultation. They both told the Locum GP that “You did not write any consultation record.” They both believed it as a fact.
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The British Asian Locum GP looked the Australian GP in the eye but not the British Indian Manager; as eye contact is rude in the Eastern Culture. He said that: • I always write briefly in patient notes during the consultation; history, examination, differential diagnosis, possible investigations, diagnosis, management and follow up if required. • The appointment list is on computer but paper notes folders are provided in this practice. If a patient was present and his or her notes were not on the table, I ring the receptionist asking for patient notes. If no notes are available, then I make a new one page note sheet and write everything on it. This is then filed by a receptionist in the patient’s notes envelope when it becomes available. • You must produce my note page sheet or I have no comment to make. The British Locum GP also went to the room next door and wrote in this patient’s new notes all the above facts and put them in the new Patient’s envelope. He photocopied these notes and took them home to keep in a file for future reference or Coroner’s inquest. He also rang the Coroner and informed her that; • I may have seen the patient but at present that page of
my written notes is unavailable. The computer appointment list shows that I saw the patient 5 days ago. • If you have found out that I gave him Amoxicillin, then my guess is that the deceased might have an Upper Respiratory Tract Infection at the time. • I have asked the Practice Manager to find the patient’s note page that I wrote on the day, which I must have written as I always do; no exception. • I am available to assist further if you need any time, please feel free to contact me or the Practice. Two days later, the English secretary rang the British Asian Locum GP that the receptionist has found the note page sheet which was misfiled in another patient’s envelope. He never heard from the Australian Salaried GP or the British Indian Practice Manager. They may have felt embarrassed in believing that the Locum GP was guilty of not writing notes and giving Amoxicillin. They would not say “sorry”, even if they want to, because to say “sorry” is exclusively an English custom. Similarly, to admit that “I am wrong” is uniquely an English expression of honesty, openness and closing the chapter. No Easterner would admit being wrong. Nevertheless, cultural differences should be identified and respected so as to deliver justice in all multicultural societies. ■
If yyou ou n need eed a rreport eport o on nas specialist pecialist s subject ubject tthen hen m make ake s sure ure y you ou iinstruct nstruct a Specialist Specialist Chris Drake, Chris Drake, Dip Dip OTC, OTC, BAPO, BAPO, CUEW CUEW Consultant C onsultant Orthotist Orthotist and and Orthotic Orthotic Expert Expert Witness Witness Chris C hris h has as 30 30 years years of of experience experience in in the the field field of of orthotics orthotics and and over over 18 18 yyears ears of of medical medical legal legal reporting reporting experience. experience. As As well well as as his his in-depth in-depth kknowledge nowledge of of orthotic orthotic principles principles and and practice practice he he has has specific specific expertise expertise iin: n: Post Post trauma trauma orthotic orthotic rehabilitation rehabilitation Neuro-rehabilitation Neuro-rehabilitation Complex Complex disabilities disabilities Orthopaedic Orthopaedic conditions conditions Adult and Adult a nd paediatric paediatric orthotics orthotics Lower biomechanics Lower limb limb b iomechanics Lower limb limb o rthotics Lower orthotics Complex ffoot oot a nd a nkle conditions conditions Complex and ankle Foot orthotics orthotics Foot Specialised o rthopaedic a nd b espoke footwear footwear Specialised orthopaedic and bespoke He has He has a wealth wealth of of experience experience acting acting as as Orthotic Orthotic Expert Expert for for the the cclaimant, laimant, defendant expert. He has Expert Witness d efendant and and as as a single single joint joint e xpert. H eh as undergone undergone full full E xpert Wi tness with Bond Solon and holds Expert Witness ttraining raining w ith B ond S olon a nd h olds tthe: he: Certificate Certificate of of E xpert W itness Accreditation byy Bond Law A ccreditation (CUEW) (CUEW) iissued ssued b Bond Solon Solon and and Cardiff Cardiff University U n iv e r s ity L aw School. Registered S chool. R egistered with with the the Health Health & Care Care Professions Professions Council Council (HCPC). (HCPC). Consulting C onsulting a at: t: 1 152 52 Harley Harley Street, Street, a able ble to to travel travel throughout throughout the the UK UK for when for cclient lient vvisits isits w hen rrequired. equired. Orthotic O rthotic Experts Experts Ltd Ltd 52 5 2 Beresford Beresford Avenue, Avenue, Surbiton Surbiton Surrey, 9LJ Surrey, KT5 KT5 9 LJ Tel: +44 7721-514568, Tel: +4 4 ((0) 0) 7 7 2 1 -5 1 4 5 6 8 , Fax: +44 20 7192 3339 Fax: +4 4 ((0) 0) 2 07 192 3 339 E-mail: E-mail: iinfo@OrthoticExperts.co.uk nfo@OrthoticExperts.co.uk
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The Jackson Reforms to Civil Litigation – One Year On by Mark Solon The Jackson reforms to civil litigation were introduced in April last year. Their declared aim is to speed up civil litigation and reduce its cost, thereby increasing access to justice at a time when legal aid is doing a disappearing act. How happy is this anniversary? Are the reforms living up to their promise? They did not apply to cases already initiated by April last year, so there is not a great deal of information to go on. As reported in my previous article [Expert Witness Conference 2013 Overview, EWJ Winter 2014, pages 5 to 9], the annual Bond Solon expert witness survey last November revealed some degree of uncertainty and even pessimism as to how much the reforms would ctually improve things. Following a little more reaction time, we are now taking another look at the trends. Speed ‘The main area has been clearer court timetables and tighter deadlines for reports. Solicitors have been firmer that reports can not be received beyond the given date,’ comments Justine Fawcett, an occupational therapist. Last November, the Court of Appeal revealed the sharpness of its post-Jackson teeth: in Mitchell v News Group Newspapers Ltd it restricted the solicitors’ costs budget of more than £500,000 to court fees of £2000 because the firm was late filing its budget. The shock waves continue. Property valuation surveyor John Roe reports: ‘I have found the Jackson reforms to have been of benefit in speeding up cases. I do however have a concern that, if the court does not use a reasonable degree of discretion with regard to the regulation imposed through timetables, then the outcome in Mitchell could become much more commonplace. Whilst slackness should be put to the sword of cost, the latter should never be the means by which justice is frustrated.’ In response to tighter deadlines, William MacKay, chairman of the Expert Witness Institute, warns: ‘Get a copy of the court order at an early stage or you may find completing your report becomes more Everest-like than before.’ Worryingly, Jan Harrison, managing director of occupational therapy consultants Harrison Associates, highlights the issue of solicitors ‘expecting us to omit or be vague about the dates of reports and documents we have relied upon. This is because other experts' reports are being finalised very close to the court-imposed deadlines.’ EXPERT WITNESS JOURNAL 91
Jan points out that all sources, plus the dates of those statements, must be included: ‘Not being transparent about information we have relied on in our reports is in conflict to our obligations under Part 35 of the CPR, and the College of Occupational Therapists Medico-Legal forum have become so concerned about this that they have produced a short article to highlight this problem to members.’ Estimating costs Under the new regime, experts need to submit an itemised costs estimate at the beginning, taking in account factors such as travel, research, report-writing and time spent in meetings. Rarely, it may be possible to seek an additional fee if the case changes significantly and requires more time than envisaged. However, the courts have made it clear that experts cannot be granted a variation just because they underestimated at the start. The court now has an overriding objective to deal with cases at proportionate cost, although there is no guidance as to what is proportionate. When costs are expected to exceed £25,000 (with some exceptions in commercialcourts), the courts must approve the costs budget in advance. Judges will no longer allow fees that are disproportionate to the amount in dispute or to the complexity of the case. In addition, cases must now focus on a few key issues at the start; an expert may be asked to help to narrow down the issues. Midwifery expert witness Angela Cook reports: ‘I have observed a substantial increase in requests from s olicitors to compile a preliminary short form report (as opposed to a report which includes a full chronology and detailed facts section). One anonymous expert casts a cold eye on developments: ‘Medical reporting agencies have paid lip-service to the costs budgeting requirements by including a paragraph in relation to this issue within their generic pro-forma instructions but have done no more than this. ‘Solicitors have also tended to include a request for fee indication in letters of approach whereas previously they may have only stated "we will be responsible for your reasonable fee." I have increasingly been asked to provide a fee indication without adequate case details on which to base any estimate and almost always without any sight of SPRING 2014
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or indication of volume of associated records and documents. ‘The result has been that, during the approach and instruction stages, more work has been generated rather than less.’ William MacKay says: ‘Some problems were caused when three lots of further questions were asked. That’s almost impossible to bargain for. You need a crystal ball. Cover every eventuality and go beyond to ensure you get paid your dues.’ Meanwhile, costs lawyer Jim Diamond is waiting for things to calm down: ‘It seems to me that the legal profession is still in a stick-everything-in-the-budget-and-see-what-happens mode. ‘My view is that parallel budgets should be produced: one, for the client, of actual costs and one for recoverable proportionate costs. For experts, it is vital that all estimates are prepared as accurately as possible. ‘I predict that, once the procedural aspects of Jackson settle down, there will be a far more forensic examination of the budget by both the parties and the court, so back- up information about fee-charges by an expert in a specific field will be important to justify the expert fees in the budget on a proportionate basis. ‘A client may want the top QC to deal with his dispute over his neighbour’s barking dog. The court is highly unlikely to accept this as proportionate.’ Pressure on costs It seems that some instructing solicitors and agencies are not above trying to pass on the pain. One anonymous expert comments: ‘I am approached more frequently by agencies wanting me to see clients without prior access to their notes, which I refuse to do.’ William MacKay reports that members of the Expert Witness Institute have found ‘some reduction in instructions or far fewer cases going forward as chancers. There is even evidence of major defendants deciding to settle as a much cheaper option.’ He is also aware of ‘solicitors bartering for work to be done for less, bearing in mind the size of the claim and the small volume of disclosures’ as well as ‘attempts to get free letters of response to assess the claim’s chances of success. There is some small evidence of solicitors trying to evade cancellation fees, so get an agreement signed in the first instance.’
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One anonymous expert is cool in response to being offered a cut: ‘Some solicitors have asked us to undertake work at £81 an hour. As all our work is for those with neurological/catastrophic injuries, we politely inform them that we cannot provide a report at that fee. The fee for a detailed physiotherapy report for our clients who invariably have significant and residual disability is in my opinion a proportionate cost.’ Jan Harrison raises the possibility that solicitors will ask experts to reduce or repay fees if the court disallows some of the costs incurred. ‘This is of concern given that we provide quotations for our work based on many years of collective experience, which are then accepted under contract by the solicitor. Once our work has started or finished we then have no control over and/or ongoing knowledge of how the solicitor continues to manage the case.’ Getting paid In this more businesslike climate, it is up to the expert to consider fixed or capped fees, to accept a lower fee for the sake of the relationship, or (in extremis) to sue for the agreed amount. Experts might consider offering a discount in exchange for early payment, but should turn down any potential clients who are just looking for the lowest bidder. This anonymous expert has crisp advice on retrieving fees: ‘I have not experienced any problem relating to costs. I ensure that I have strictly agreed terms in place with instructing parties regarding my own fees, which include a "non-remission on costs assessment" clause. I am also strict with chasing payment of unpaid fees and do not entertain deferment in any circumstances. My administrative secretary is dogged in pursuit of any fee unpaid after 30 days following rendition of an invoice, underpinned by agreed terms of engagement at the outset.’ Changes in medico-legal work Although some experts report business as usual, others are experiencing change. Michael Porter reports a difference between personal injury and clinical negligence: ‘It is difficult to work out what the exact effect of the Jackson Report has been. During the last 18 months personal injury work has been less plentiful, but the work is more complex and I am able to charge the same fees. ‘With regard to clinical negligence, solicitors are beginning to ask for preliminary reports for quite a low fee, presumably to try and filter out cases which are non-starters. Clinical negligence has become half my work but it is much less well paid, and if I charged the fees I did two years ago no one would instruct me.’
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Meanwhile, an anonymous expert points to an ill-advised pursuit of new business: ‘Some solicitors have now abandoned low value personal injury claim work. However, others appear to have attempted to enter the dental negligence market without direct expertise in this niche area. The result is that initial instructions and investigations, far from focusing on the key issues, have been muddled and have failed, for instance, even to appreciate that general dentists are in the main responsible for their own acts and omissions, so that attempting to sue a dental practice assuming them to be vicariously liable for an individual dentist is unlikely to be successful and will prolong rather than shorten the process. Therefore much time has been spent, unpaid, at the front end, educating and advising. Another anonymous expert has experienced an immediate downturn: ‘The reforms have led to an approximate 60% reduction in my psychiatric medico-legal workload. As I work full time for the NHS, in the short term this has made life less stressful but I suspect I no longer have the option of going part-time and doing more medico-legal work.’ Jackson set in a wider context 1. Litigants in person The decline in the availability of legal aid will inevitably mean more litigants in person (LIPs). This is not looked on with enthusiasm by experts. Not all LIPs are uninformed or reluctant to pay, but experts in our last survey gave them a bad press on the whole, with some experts opting to avoid LIPs altogether. 2. Criminal trials delayed by experts The harsher climate for civil cases should give no room for complacency in criminal matters, as demonstrated in the case of R v Anwar Rosser (Bradford Crown Court) which had to be adjourned three times, causing distress to a murder victim’s family. In his sentencing remarks on 13 February, Mr Justice Coulson was highly critical of expert witnesses in major criminal trials who cause adjournments because they require more time to complete investigations and produce reports: ‘The delays were unconscionable.’ ‘…Experts need to understand that the court-ordered timetable must be complied with and, if they cannot comply with it, they should say so at the outset. I am left with the nagging suspicion that experts take on too much work and do not provide clear information as to what they can and cannot do within the relevant timescale. The result is that deadlines are missed and judges who are case-managing these sorts of trials are left with an impossible choice between either going ahead without that expert evidence (which could give rise to an appeal, thus bringing everything back to square one) or adjourning the trial. EXPERT WITNESS JOURNAL 93
‘If experts in civil cases regularly failed to deliver their reports on time, they would quickly find that they had no further expert witness work… It is high time that this approach was adopted by the criminal justice system.’ In response to this, a head of drugs services comments: ‘My experience as an expert witness in criminal cases is a little different. In the last four weeks I have had three listed hearings moved due to unavailability of judges, courts, police officers or other experts. This seems to be becoming more prevalent, as it seems are two-week warned lists for a period perhaps two months in the future which prevents me from being able to take any other work in this window. ‘…All too often, in my experience, it is the CPS who fail to provide papers on time, or at least this is often what I am told by the instructing solicitors, who almost invariably are my only point of contact with the case. All too frequently I find that the quality of the submissions, perhaps constrained by cuts to the budgets available within the system, particularly the forensic submissions, are deficient for the purposes that I am asked to comment on. Frequently I find that, on investigation, papers required have not been provided, or when I dig deeper it may be that another very considerable bundle will arrive, often within days of the deadline…without remuneration for the burden.’ Access to justice In addition to the cuts in legal aid, an anonymous expert points to another possible source of inequality: ‘The most common scenario is of cases where there is a civil claim by patients with extensive or complex pre-existing psychiatric histories. In these cases the prior history needs to be recorded in detail and there are complex issues to discuss in relation to causation. In most cases the size of the claim is too small to warrant the cost of my report but I am not in the position to cut corners as these are the cases most likely to be challenged. ‘In contrast, clients with no pre-existing psychiatric history can still be seen within an acceptable budget. This obviously raises issues about equitable access to justice and compensation.’ Expert witness training Michael Porter reports that the greatest post-Jackson change ‘is that demands on expert witnesses are increasing as the remuneration decreases and that it is even more vital for experts to be properly trained as experts and experienced in their own field.’ Instructing solicitors and agencies now generally regard ongoing expert witness training as essential, for the following reasons. SPRING 2014
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Firstly, Better Medical Evidence, part one of the Ministry of Justice consultation Reducing the number and costs of whiplash claims published in October 2013, states that only medical reports from accredited examiners are to be accepted as evidence in whiplash claims. Secondly, during revalidation, training will assist in demonstrating CPD within an expertâ€™s medico-legal practice and compliance with the GMCâ€™s Acting as an expert witness - guidance for doctors Thirdly, the Supreme Court judgment in Jones v Kaney in 2011 has removed expertsâ€™ immunity from suit in civil actions. As well as being protected by specific insurance, experts should be trained to help them stay out of trouble in the first place. One example of training leading to accreditation is the independently-assessed Cardiff University Medico-Legal Foundation Certificate in association with Bond Solon, a distance learning module (covering the Civil Procedure Rules online) and three days face-to-face training in report writing and civil law and procedures. Certificate holders join the National Register of Medical Experts which is administered by Bond Solon. â– Mark Solon Managing Director of Bond Solon and Solicitor firstname.lastname@example.org http://www.bondsolon.com
Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA
Chronic Pain Expert Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent Neck, Back, Neuropathic or Complex Regional Pain Syndrome especially following Personal and Occupational Injuries. He also has wide experience in Medical Negligence claims. Listed on the UK register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses, Expert Witness Institute and is a Sweet & Maxwell accredited Expert Witness 2014. Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert. He covers Manchester, Liverpool, Leeds, Birmingham & London. Other locations and Domiciliary visits can be arranged.
Jane Griffiths (Medico Legal Manager) Tel: 0161 485 1881 Mobile: 07885 913 912 Email: email@example.com Suite 5, Wilmslow House, Grove Way, Waterlane, Wilmslow Cheshire, SK9 5AG
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Liability for Personal Injury Caused by Horses Horse riding is one of the most dangerous sports and novice riders and trainee grooms need expert instruction from a qualified instructor, as well as close supervision although accidents do happen. The law on equine accidents, after the March 2003 Mirvahedy v Henley ruling. Where horse owners Andrew and Susan Henley were held strictly liable following a Law Lords' interpretation of the Animals Act 1971, for injuries to motorist Hossein Mirvahedy in an accident after their horses escaped from a field. This case has set a precedent and led to insurance premium increases for every horse owner in England and Wales. After the ruling it was feared that the strict liability test set out in the Animals Act 1971 would routinely render horse owners and keepers liable for what was essentially normal equine behaviour. Every person who puts their boot in a stirrup is mounting a large, unpredictable animal with a mind of its own. The risk of being sued affects every horse
owner who has allowed someone else to ride their horse: whether a friend going for a ride around a field, someone who has loaned your horse, or employees of a livery yard. The risk of being found liable for rider injury particularly threatens riding stables, with businesses regularly face claims from people who have fallen off during a lesson. However, in recent cases, it has been apparent that the courts have been reluctant to award damages to injured horse riders as a result of natural equine behaviour. Reassurance has been obtained from judicial comments such as Lord Justice Sedleyâ€™s in Clark v Bowlt  when he said: Section 2(2) is not intended to render the keepers of domesticated animals routinely liable for damage which results from characteristics common to the species. It requires something particular. Contested cases which result in a reported decision usually concern a horse with a particular characteristic such as bucking or rearing, which has resulted in personal injury. â–
Jennifer M Ham has considerable experience in a wide variety of roles within the equine industry. She is widely employed as an equestrian consultant, not least in the role of equestrian expert witness, giving her expert opinion as an instructor, examiner, judge and all riding and horse related accidents. Member, Academy of Experts & 1st Tier Expert with APIL.
Tel: 01761 432119 Mob: 07771 906406 Email: firstname.lastname@example.org www.equestrianconsultant.co.uk Manor Farm, Kilmersdon, Bath BA3 5SY
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Sudden Acceleration, Spaghetti Software and Trauma at the Kitchen Sink by Dr Antony Anderson CEng FIEE/FIET FdiagE Sudden un-commanded acceleration (UA) incidents in automobiles have caused deaths, serious injuries and, in some cases, have resulted in drivers being convicted of vehicular homicide and receiving long prison sentences. For instance, in 2003 Mary Hill of Orlando Florida stopped her BMW at traffic lights and waited to turn left. As she turned left the vehicle accelerated uncommanded to just over 70 mph. As she braked the vehicle fishtailed, left the road and crashed into a tree killing two teenage passengers, one of whom was her own daughter. In 2005 she received a 15 year prison sentence, in spite of producing as witnesses other BMW drivers who had had similar experiences. She still languishes in jail. It is a sad fact that if no physical damage to the cruise control or electronic throttle can be found and if no fault codes have been triggered, the courts tend to accept prosecution arguments that the alleged UA incident must have been caused by driver error. By such fallacious argument, the burden of proof is reversed: the vehicle is assumed innocent until proved guilty, rather than the driver.
It is exceptionally difficult to prove intermittent electronic malfunctions because these cannot normally be reproduced to order. As far as workshop diagnosis is concerned, dealers interrogate the vehicle on-board diagnostic system which will show which fault codes have been flagged up by the engine control software (triggered, for example, by faulty sensors, or loose connectors.) Unfortunately the software only detects those faults that it is programmed to detect: therefore, failing to find fault codes should not be assumed to mean no faults. As an aside, many will have experienced a computer locking up for no known reason. The cure is to switch off the computer and re-start â€“ whereupon the computer resets automatically and works fine for many months until the next incident. However, if a car experiences a UA incident the driver cannot risk resetting the engine control Electronic Control Unit (ECU) by switching the ignition off and on without running the risk of even greater danger. Cars, unlike speedboats or motorcycles, are not fitted with kill switches that can be brought into action in an emergency.1
Main Picture ÂŠ G. Francel 2012 - Vehicle after double UA incident that was recorded on video EXPERT WITNESS JOURNAL 96
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As a result of Congressional hearings in early 2010, the US National Highways Traffic and Safety Administration (NHTSA) commissioned NASA to carry out a 10 month study of UA in Toyota vehicles and the report was published in redacted form in February 2011. The report concluded: “Due to system complexity …..and the many possible electronic hardware and software system interactions, it is not realistic to attempt to ‘prove’ that the ETCS-I2 cannot cause UAs3. Today’s vehicles are sufficiently complex that no reasonable amount of analysis or testing can prove electronics and software have no errors. Therefore absence of proof that the ETCS-I has caused a UA does not vindicate the system.” The NASA investigators were clearly working here on the sound basis that ‘absence of proof is not proof of absence’. However, at the press conference when this report was released, the then US Secretary of State for Transport Ray La Hood contradicted the report and said: “We enlisted the best and brightest engineers to study Toyota's electronics systems, and the verdict is in. There is no electronic-based cause for unintended high-speed acceleration in Toyotas. Period."
This was taken at the time by most of the media to suggest that Toyota electronic throttle control systems had been absolved by NASA from any role in UA incidents. In fact, NASA had reserved judgement because of the very limited scope of the work they had been asked to do and the limited time and money provided to carry it out. Much has happened since the spring of 2011 when I reported that hundreds of federal acceleration UA lawsuits had been consolidated before Judge Selna in Santa Ana California as a multi-district litigation( MDL). This was to enable discovery to be undertaken on a once-and-for-all basis for all cases coming within the scope of the MDL. As part of the preparatory work by experts, Professor Todd Hubing of Clemson University, a well-known expert in the field of Electromagnetic Interference (EMI), was tasked to try to reproduce sudden acceleration incidents in the laboratory and other experts were tasked to examine the electronic throttle system architecture and the quality of the software code used in the Toyota electronic throttle control system. The MDL litigation for economic damages incurred by Toyota owners was settled out of court at the end of 2012 for $1.6 billion, leaving intact hundreds of lawsuits filed by customers who claimed they had suffered personal injuries after their cars accelerated out of control. It is presumed that the MDL settlement came about partly because Toyota did not wish to have any shortcomings of their electronic throttle system that had been identified by the experts brought out into public view. With the economic damage issues out of the way, and the work done by the experts now available to litigants, a number of cases for personal injury and death came before the US courts during 2013. The initial cases centred on the failure to provide an electronic brake override system that would trigger the vehicle into a limp home mode in the event that the driver mistakenly pressed the brake and the accelerator at the same time. Some brake override cases were settled in favour of Toyota and some in favour of the plaintiffs. It wasn’t until the Booker v. Toyota case was heard in an Oklahoma court in October 2013 that malfunctioning electronics became the central issue. In September 2007 75 year old Jean Bookout had been exiting an Oklahoma highway in her 2005 Toyota Camry when it suddenly accelerated. Bookout was unable to stop the car and it fell into a culvert injuring her and killing her passenger and best friend Barbara Schwarz. Before she died, Schwarz called her husband and said ‘Jean couldn’t get her car stopped. The car ran away with us. There`s something wrong with the car.’ Without this vital information, Toyota’s various explanations in terms of an elderly driver mistakenly pressing the accelerator pedal instead of the
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brake, a loose all-weather floormat entrapping the accelerator pedal, or a sticky accelerator pedal might have sounded plausible to a jury. However, the lawyers engaged on behalf of Schwartz and Bookout started to investigate the possibility that the root cause might lie in malfunctioning throttle control electronics. And here is where the MDL expert evidence became of critical importance. On the hardware front, Professor Todd Hubing and his team at Clemson University had managed to induce sudden acceleration incidents by means of EMI without triggering any fault codes, something that Toyota had claimed could not happen. On the software front, Dr Michael Barr, a world expert in embedded computer systems, was able to provide a very thorough critique of the electronic throttle control software after having been given permission to carry out a lengthy examination of the Toyota Source Code in a locked room under the very tightest of security conditions. His 800 page report used in the Bookout case is still under lock and key, but his set of slides presented to the jury and his testimony are available on the internet and are well worth reading.4 Barr writes: ‘In a nutshell, the team led by Barr Group found what the NASA team sought but couldn’t find: “a systematic software malfunction in the Main CPU that opens the throttle without operator action and continues to properly control fuel injection and ignition” that is not reliably detected by any fail-safe. “’. In other words if there was an electronic malfunction it would not be reliably detected – and instead of triggering the vehicle into limp home mode it would open the throttle and cause a sudden acceleration and no trace of the fault would be detectable afterwards.
Torque-based system structure External torque demands
◆ Cruise control
◆ Catalytic convertor heating
◆ Speed limiting
◆ Idling-speed control
◆ Transmission control system
◆ Stability control
Torque convertor Conversion of resulting torque demand
Throttle-value position Injection period
◆ Driver/passenger convenience
Internal torque demands ◆ Starting ◆ Idling-speed control ◆ Engine-speed control
Torque coordinator Coordination of torque and efficency requirements
Ignition angle Wastegate aperture
◆ Component protection
Toyota’s Mystery task X is not so mysterious after all © Robert Bosch Gasoline Engine Management 3rd edition 2004 page 223 The Torque coordinator specifically coordinates external torque demands (such as from the driver, cruise control and transmission and stability control), internal torque demands (such as engine starting, idling speed control, engine speed limiting and component protection) and efficiency requirements (starting, catalytic converter heating and idling speed control). In my opinion, this is precisely the same task as Task X! Barr talks in his testimony in graphic images of spaghetti software and of Task X being a ‘kitchen sink task’. Clearly he has in mind the idea of someone being at the kitchen sink trying to wash up in an orderly fashion when someone else dumps an extra load of assorted dirty crockery and cutlery into the sink completely dislocating the washing-up process. It seems that this homely analogy struck home with the jury.
Barr appears to have identified: amateur architectural design; a failure to follow proper design guidelines for safety critical systems, or even Toyota’s internal guidelines; lack of protection of key variables, including that most key variable the target throttle angle; no stack protection with the possibility of accidentally overriding key program variables; a critical task X that could be overwhelmed, resulting in a wide open throttle condition. And so the litany of claimed shortcomings went on.
Barr says: “the jury in Oklahoma found that Toyota owed each victim $1.5 million in compensatory damages and, owing to the software defects and inadequate fail safes, also found Toyota acted with ‘reckless disregard’. The latter legal standard meant the jury was headed toward deliberations on additional punitive damages when Toyota finally called the plaintiffs to settle (for yet another undisclosed amount). “
When it came to discussing in the courtroom the supposedly mysterious task X that had no name, the judge cleared the court, except for the jury, presumably at the request of Toyota. And to this day nobody, including Barr is permitted describe task X. This, in my opinion, is somewhat absurd because in the Robert Bosch Gasoline Engine Management (3rd edition 2004), published by John Wiley, the torque based structure of a generic electronic throttle control is clearly shown in block diagram form with a TORQUE COORDINATOR identified.
The Bookout decision is likely to prove a landmark and it throws the spotlight back where it properly belongs: namely, onto the electronic and software malfunctions and away from driver error. Toyota, for their part, seem now to be trying to settle other outstanding death and injury cases with as much speed as they can. Unfortunately, sudden accelerations still occur, and automobile companies still tend to blame the driver, witness this video example of a double sudden acceleration dated November 16th 2012 in Stevenson Ranch California, which has attracted well nearly 1.7 million viewings on U Tube.
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However it now seems to have dawned on the embedded software community, who greatly respect Barr that automobile electronic software can potentially kill and that therefore they need to design their systems from now on systematically in accordance with best practice in order to provide an adequate degree of electronic functional safety. Hopefully the Bookout verdict may eventually lead to an overall review of how the automobile industry handles safety critical systems software and eventually result in greatly improved software reliability. ■ Dr Antony Anderson CEng FIEE/FIET FdiagE Antony Anderson is an electrical engineering consultant who investigates unusual electrical problems He holds an Honours Degree in electrical engineering and a Ph.D from the University of St Andrew’s, Queen’s College, Dundee, Scotland. He is a Fellow of the Institution of Electrical Engineers (Now the IET), a Member of the IEEE and a Fellow of the Institution of Diagnostic Engineers. He has many years experience as an electrical research engineer, both in academic research and in Industrial R &D. He is author of a number of technical papers and articles and holds several patents. He has published a number of articles and reviews for the New Scientist Magazine over the years. For further reading on Sudden Acceleration Dr Anderson has just published a paper in the IEEE ACCESS Journal. that can be freely downloaded from: http://ieeexplore.ieee.org/stamp/stamp.jsp?tp=&arnumber=6777269
Above © G. Francel 2012 - Aftermath of a double sudden acceleration in a Toyota Highlander, November 2012 See also U tube at https://www.youtube.com/watch?v=dsTiPhcaeus
References  It is salutary to remember that every escalator on the London Underground is fitted with emergency stop buttons: not so cars fitted with electronic throttles!  ETCS-I Electronic throttle control system - intelligent  UA = Unintended Acceleration [ 4] Barr Slides in Bookout case: http://www.safetyresearch.net/Library/BarrSlides _FINAL_SCRUBBED.pdf Barr Testimony in Bookout case: http://www.safetyresearch.net/Library/Bookout_v_ Toyota_Barr_REDACTED.pdf
Mr R Scott-Watson BSc(Hons) MB BS LLB(Hons)(Open) Cert.Av.Med. Cert MR(2) 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 17000 reports (currently 1500 per annum). Fully trained in CPR, Court appearance (3 per year) and Report writing. Low Velocity Impact Traffic Accident cases accepted. Clinics in Stourbridge, Birmingham, Coventry, Bristol, Swindon and Oxford. Home and Prison visits undertaken. Contact: Mrs Carol Couzens 7a Heath Lane Oldswinford Stourbridge West Midlands DY8 1RF Tel/Fax 01384 441126 email@example.com EXPERT WITNESS JOURNAL 99
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Real Cases and Nothing but the Truth - Experiences and Advice from a Forensic Engineer by Mr Andrew Billingham, Forensic Structural Engineer & Chartered Building Surveyor For those not familiar with being or instructing an Expert, some of these events that follow below should perhaps carry a health warning prior to reading. All these stories are, however, absolutely true. Quite rightly, the selection of an Expert is extremely important and in the light of the fact that Experts no longer have immunity, many faces that I once saw on the other side have sailed away into the sunset and no longer provide Expert Witness services. However, it is extraordinary to me that much is written about the choice of an Expert yet our own legal system has failed to run routine checks on an individual purporting to be a a Barrister. How is it that after a good period of defending a developer against an alleged defective property, I find I was involved in a Court case where the alleged Barrister for the Defendant was not a Barrister at all! What’s more, this individual had been employed at a firm of solicitors for many years and not once ,it would appear, had his status as a Barrister been checked or verified. Needless to say, that case that was due to be heard in the TCC Manchester suddenly settled in my Client’s favour. Why am I not surprised that there has never been any article that I have read about this rogue Barrister in the national press, or in any of the legal journals? I find that quite extraordinary. EXPERT WITNESS JOURNAL 100
Another unique experience perhaps showing how Judges can ensure the case settles more quickly than not came in a Landlord and Tenant’s case. The joint Claimants were a husband and wife who had brought their family up in an end of terrace three storied Council town house. The Local Authority Defendant were offering a three bedroom bungalow in lieu of the town house that clearly was in a state of disrepair. The Local Authority Defendant Landlord had a Repairing Liability for the subsidence that had arisen. As is usual practice, I met with the Claimant’s Expert. He was an inveterate smoker looked a little shifty and definitely left his horse outside the building. Initially, we agreed the extent of underpinning on site, albeit unknown to both of us at the time, the cost of the repair would exceed the true value of the house. The Claimant’s Expert was ambushed by those instructing him and in effect his report said quite the opposite of a full under¬pinning scheme, it merely said in effect paper over the cracks. The reason for this Expert changing his mind was that he was advised that the Tenant Claimants would not receive a Judgment where the cost of repair was not proportionate to the value of the property. A senior Judge at the hearing had rather a novel way of ensuring the Claimants moved into the three bedroom bungalow they were being offered as alternative SPRING 2014
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permanent accommodation by the Local Authority. On the first day he noted that only one of the Joint Claimants (wife) was alone and her husband was not in Court. At the appropriate time when he was asked if he had any questions for the Claimant, he simply enquired “Where is your husband?” She answered, “He’s in hospital, he’s just had a quadruple heart bypass.” In total disgust that one of the Joint Claimants was not present for this case, he turned to the Claimants’ barrister and asked why he had not been informed and when the barrister had known that one of the Joint Claimants would not be present in Court. The barrister with all the strength he could muster, replied that he had just learnt that this morning. Whether the Judge believed him or not is another matter of course. The Judge then turned round to the wife who was still in the witness box and asked her if she was trying to kill her husband. She went into a fit of sobbing, that resulted in the Judge removing himself from the Court for a period of around 10 minutes. When the Judge came back into Court, he reminded the Claimant, who was on her last tissue, that he had not received an answer to his question, was she trying to kill her husband? At this point, there were more tears and the Claimant’s barrister intervened and said he did not understand the line of questioning from the Judge. The Judge enlightened him by stating that the town house has six individual flights of stairs whereas the bungalow had none. For anybody who had just undergone a heart bypass, it seemed common sense that a bungalow was appropriate and with some force of using the word `appropriate’ he asked the two barristers to have a quick discussion to settle the case. Needless to say, the case was settled. The woman and husband I am pleased to say moved into the bungalow, albeit somewhat reluctantly. I never did think I would ever hear a Judge ask the question of a Claimant, are you trying to kill your husband in a Civil case. Not very civil, some may say. There is a well-known saying that `What comes around, goes around’. As an engineer I had the dubious task of relaying to a national contractor that they were instructed to demolish an extension to a hospital. The concrete quality was poor and it simply was not going to be of ade-
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quate durability and a demolition scheme was devised by the contractor , which by now had reached roof level (being only three storeys), by the use of explosives. The building frame came down with the explosives almost as quick as it went up and whilst all this was going on, two unexpected events occurred. 1. We received a request from the regional district architect of the hospital board requesting a reference for this national contractor who we had just watched build and then subsequently start to demolish by explosives an extension. As a masterly stroke of effective management, I was asked as a young engineer what I would do in the circumstances of being requested to give a reference on a company that clearly at the time was having some difficulties. I was advised that it would be most appropriate to allow the chief executive officer of the national contractor to ring up the regional architect to give his own interpretation of explaining the difficulties he was having on that site and then we would check the veracity of that conversation. 2. The second coincidence was that we were suddenly becoming aware that more construction projects being served by the same Ready-Mix company who provided the concrete for this site were also having cube strengths that were below specified strengths. At the end of a prolonged period of discussion, the national contractor requested that we assist them in recovery of their loss which was not insignificant (several million) against the concrete supplier. In the fullness of time, it became evident that the cement manufacturer was in part responsible for the low strengths since they themselves have not allowed routine main¬tenance to occur at the plant where they manufactured the cement. Whereas in life it can be seemingly very obvious who is to blame for any event, in the fullness of time, those initial thoughts on causation and blame may be totally blown away by subsequent events.
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I adopt the prefix `Forensicâ€™ to the companies that I have owned over the years as an attraction to potential clients who I am pleased to say come from all around the globe. I am of the view that the gathering of evidence is the most important part of my job. Only when you have exhausted every nook and cranny for evidence can you start the process of elimination of hypotheses you may wish to consider. If only buildings had the equivalent of an aeroplane flight recorder, or black box, as it is often referred to (even though they are orange ) how effective could they be in terms of telling forensic engineers how a building collapsed, particularly when we are faced with pile of debris that used to be a building. In one of the major collapses in London that I investigated I insisted in watching the debris of a collapsed building be removed. Following the collapse there was the usual interest nationally in the press and TV coverage. The initial removal of debris is always painstakingly slow in case there are entrapped bodies under the rubble. Fortunately the sniffer dogs detected nothing so in the fullness of a week the debris was totally removed. Despite the owner who was in the basement at the time of the collapse informing me that nobody was working in the building at the time, what was removed from the debris included some hand tools, acrow props (now bent) and some nicely painted steel beams. Now the cynically minded
of you might think that an opening had been or was in the process of being formed thereby altering the existing structure. The record photos taken by the owners son also revealed that a major masonry pier had been drastically made smaller at the ground floor. In effect it was concluded that another engineer had designed a large opening at ground floor and rather than pay his fees to assess whether an opening in the floor above was feasible, the owner simply went ahead and instructed a builder ( allegedly) to replicate the opening without realising that the reduced small pier at the front of the building was about to be overstressed. Unless I had watched the demolition and clearance of the site I would not have had such an easy role in determining the cause of the collapse. One of the Judges I have had the privilege to work for advised me that I should not have my mind contaminated by my clients thoughtsâ€Śvery good advice. The excitement that you think you know immediately what caused the collapse should always be put on ice until you have collected the last piece of evidence. Anyone going into court on any Forensic evidence will know the rigours of the process in testing that evidence, so a thorough investigation and collection of evidence should pay dividends in the end even though at times you will be under immense pressure to produce your report and confirm your expert opinion. â–
Expert Engineers Wide-ranging engineering expertise Report writing in clear English Extensive courtroom experience
Any country Any discipline Any dispute resolution process www.cadogans.com | 0141 270 7060 EXPERT WITNESS JOURNAL 102
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Plethora of Guidance Stifles Planning System In a recent statement by Jeremy Blackburn, Head of UK Policy at RICS, support was given to the Taylor Review arguing that the current plethora of guidance adds to delays, and sometimes contradictory interpretations in the planning system. RICS said it welcomed government bringing out this long anticipated updating and streamlining of planning guidance, ensuring the delivery of a workable system that operates in the wider public interest by enabling sustainable development. And it observed that the National Planning Policy Framework was a welcome move to reduce the complexity of the planning system, where complexity was a barrier to economic growth, and the Government was right to turn its attention to the next task of reducing the thousands of pages of guidance. It qualifies this by stating that the portal is â€œthe first step down on a much longer journeyâ€?. â€œThe NPPG can only go so far. We recognise that various groups and bodies within the industry are well placed to provide more detailed complementary guidance from their specialised knowledge, skills and competence, for instance RICS on financial viability in planning.
â€œWe also recognise that certain key areas of guidance should be maintained or produced by government. In so doing government will retain control over guidance it considers important. By keeping such guidance to a minimum the inevitable need to update it is more likely to be carried out in the context of limited resources. RICS also voiced concerns that in many key areas, streamlining has led to a reduction in the necessary guidance when further detail will still be necessary â€œRetail is a key issue when considering High St and town centres, and if the momentum of the Portas process is to be maintained we need that step by step guidance in place to help ensure a more rapid recovery. â€œWe look forward to an eventual â€˜alpha versionâ€™ of the government planning guidance platform, accessible to all, easily updated, alerting users to changes and sign posting authoritative, relevant professional and industry guidance. Sign posting to such guidance is essential if we are to engage the users and customers of the system beyond the professional practitioner.â€™ â–
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RICS Welcomes New Models of Procurement The Government Construction Task Group report 2012 highlighted very real challenges in construction procurement. Addressing these, the Government Construction Strategy set out a clear commitment to trialling new models of procurement that include principles of early supplier engagement, transparency of cost, integrated team working and collaborative working. This is likely to impact on the three main causes of construction disputes: failure to carry out the contract, conflicting party interests, and unrealistic risk transfer from employer to contractor. This guidance will help both central and local government bodies to work with industry in a consistent and collaborative way, building long term stable partnerships between client and suppliers. The models provide modern, innovative methods and tools, allowing clients to lead change and drive positive results. The aim of publishing draft guidance documents at this early stage is that - with the support of the project mentors and early adopters - others will be able to use the guidance and provide feedback before a formal launch in summer 2014. This means that the final guidance documents will be ‘road tested’ before their final version. EXPERT WITNESS JOURNAL 104
In January 2014, Jeremy Blackburn Head of UK Policy at RICS voiced his delight with the reforms progress: “The Government Construction Strategy aims to make savings of up to 20% in construction procurement by streamlining processes. The government has implemented innovative procurement models such as Two Stage Open Book, Integrated Project Insurance and Cost Led Procurement. These models offer considerable potential to reduce the cost of public sector construction projects, as well as contributing to reduced risk, greater innovation and improved relationships throughout the supply chain. “Reforming public sector procurement of construction projects to embed best practice is a welcome move by the government. The RICS Construction Policy focused government on using the trail project support groups as the best vehicle for testing new and innovative procurement models including Two Stage Open Book, Integrated Project Insurance and Cost Led Procurement. “We are delighted to see these trials, with lessons learnt, being turned into operational reality as we recommended. This will provide real benefit to the construction supply chain. RICS has been active throughout the trail projects and continues to support government its endeavour to cut SPRING 2014
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costs and streamline procurement process. Support for small businesses must be central to these reforms as we look towards Construction 2025 and delivery of construction-led growth. We need to ensure that these reforms and the other achievements over the last four years have a lasting legacy into next Parliament to benefit all tiers in the construction industry.”
More about the models Two Stage Open Book Using Two Stage Open Book a client invites prospective integrated teams to bid for a project based on their ability to deliver an outline brief and cost benchmark. Following the first stage competition, the appointed team works alongside the client to build up a proposal, the construction contract being awarded at the second stage. This differs from Cost Led Procurement in reducing industry bidding costs, enabling faster mobilisation and in providing the opportunity for clients to work earlier with a single integrated team. Cost Led Procurement Applying the Cost Led Procurement process, a client can use their knowledge of costs to set a challenging cost ceiling and output specification against which the supply
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chain can bring experience and innovation to bear in a competitive framework environment. On frameworks with a series of similar capital projects, CLP provides the opportunity to continually improve on the unit costs of the programme working collaboratively with the supply chain. Integrated Project Insurance The Integrated Project Insurance (IPI) model offers clients the opportunity to create a holistic and integrated project team (an ‘Alliance Board’) to eliminate the “blame/claim” culture. The innovative “integrated project insurance” package limits the risk for the individual members of the team, fosters joint ownership of the project, and thereby reduces the likelihood of overrunning in terms of cost and time. ■ To send feedback, receive further information, get support or attend future related events, please contact the Government ConstructionTeam@cabinet-office.gsi.gov.uk. Stakeholders will be able to trial the guidance and provide feedback before it is launched in the summer of 2014. To feed into the process email Alan Muse, RICS Director of Construction (firstname.lastname@example.org)
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Preference for Mediation to Resolve Disputes RICS Scotland is calling for more organisations to consider mediation as an effective means of resolving disputes. Mediation as a method of dispute resolution is faster and certainly less expensive than litigation. RICS Scotland is currently offering an accredited medication course to train practitioners in this rapidly expanding area of dispute resolution. Andrew Agapiou, Senior Lecturer at the University of Strathclyde, who has conducted research into the value of mediation, notes that mediation has been acknowledged worldwide, as evidenced by the number of jurisdictions in which the courts enforce obligations on parties to negotiate and adopt mediation to settle construction disputes. Further research undertaken at Strathclyde University suggests that when parties enter mediation cases are often settled in a shorter timeframe than during lengthy process of litigation. Built environment experts Increasingly, parties want to avoid the time and cost of litigation and turn instead to alternative methods of dispute resolution, such
as mediation. RICS Accredited mediators are built environment experts delivering skilled dispute resolution on built environment matters. Even where settlement isn’t achieved, the narrowing of issues and the reality testing of each side of the case, gives parties a clear idea of what might happen if the case proceeds to arbitration or court. In terms of court time saved, this usually pays the cost of the mediation many times over.
Sarah Speirs, Director of RICS Scotland
A mediation qualification helps you develop the skills involved in conflict resolution. Not only does this mean you are then capable of conducting mediations but you will find the skills are very useful in managing day to day situations.” RICS runs Accredited Mediation courses in Edinburgh. Suitable for individuals with an interest in this growing method of dispute resolution, the intense, hands-on training programme equips members with the practical skills to become a skilled, specialist mediator. Graham Boyack, Director of the Scottish Mediation Network
BARRY J CROSS FCIOB FRSH MRICS MCIH Chartered Building Surveyor
A chartered building surveyor for the entire United Kingdom PRODUCTS & SERVICES Expert Witness reports for construction disputes Claimant and Defence Expert Witness – Civil and criminal litigation on Housing Construction and Environmental Health matters Single Joint Expert Reports Damages claims under Section 11 of Landlord & Tenant Act 1985 and Defective Premises Act 1972 Section 4 Building Pathology Accident Reports Structural Reports Inspection and reports for domestic kitchen, bathroom and window installations Specialist Damp and Fenestration Reports Construction consultation and dispute mediation Homebuyer reports, Red Book & Retrospective valuations for residential properties %$55<&5266,6$1$&&5(',7('(;3(5721&21680(50$77(56$1'+$6$66,67('$1' $33($5(')257+(%%&215(&(17&21680(5352*5$00(6
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 EXPERT WITNESS JOURNAL 106
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Call for Landlords to Install Carbon Monoxide Alarms Lawyers representing injured people and bereaved families are calling for compulsory installation of carbon monoxide alarms in rented properties. “It seems barely a week goes by without a news report of a tragedy involving carbon monoxide poisoning,” said Matthew Stockwell, president of the national, not-forprofit Association of Personal Injury Lawyers (APIL). “A carbon monoxide alarm should be as much of a priority in homes as a smoke alarm”, said Matthew. The Department of Communities and Local Government announced  that it is to undertake a formal review of the rules and regulations relating to carbon monoxide alarms in rented homes.
Matthew said that the keys to preventing carbon monoxide deaths in the home are threefold: “At this time of year, it would be easy to mistake the start of carbon monoxide poisoning for the flu. Make sure you know what the symptoms are,” he said. “If you’re renting, your landlord is responsible for having the gas appliances checked by a GasSafe engineer. Make sure you see a certificate to prove that it has been carried out. If you own your property, having the check-up could be the best bit of property maintenance you ever do. “And for the sake of the 50  lives lost a year to carbon monoxide poisoning, get a carbon monoxide alarm.” ■ Footnotes:
Carbon monoxide is a highly toxic, odourless gas to which people can be exposed through faulty gas appliances.
 Oral answer from Baroness Stowell of Beeston, Parliamentary Under-Secretary of State, Department for Communities and Local Government
Symptoms of poisoning include headaches, chest pain, vomiting, dizziness, drowsiness, distorted vision, breathlessness and stomach pain, and exposure to high levels can cause brain damage and death.
 NHS figure APIL (Association of Personal Injury Lawyers) is a not-for-profit organisation whose members are dedicated to campaigning for improvements in the law to help people who are injured or become ill through no fault of their own
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Construction Dispute Specalists Unfortunately, all too often, disputes occur in construction contracts, particularly with respect to quantum and time related issues; we at Profile and CCM can help.
Our experts are familiar with providing written or verbal testimony, where evidence is presented in court and subject to cross examination.
From the outset, we provide a practical, honest appraisal of the dispute by understanding the specific claim objectives and assessing both the risks and benefits – thereby ensuring cases are dealt with cost effectively and “proportionately” in a common sense manner.
Profile and CCM can support Lawyers and Legal Teams and provide in-house visualisations to enhance presentations and demonstrate key issues pictorially. Or, if preferred, we can also assist at an informal level, providing impartial advice on financial, contractual and construction complexities.
We can provide Expert Witness Services including Expert Reports on most building and construction matters including claims evaluation, defective work, professional negligence, valuation of the works and contractual positions. We can assist in the speedy resolution of disputes and the maximisation of cost effective solutions by preparing clear and concise reports.
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Our BIM experts can support the legal process with dispute avoidance and variations can be assessed with little or no time delay. ■
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The Lexus GS300h Road Tested by Brian ‘Backbone’ Bennett Ergonomically perfect! A road testers dream, an almost faultless vehicle, but I'm no ordinary motoring hack, no exotic trips to the Cote d'azur to drive the new Bentley with my head in the sun. I asked colleagues, what in there opinion was the ideal everyday car for a busy consultant ? Their reply a Lexus GS300 hybrid. Why I asked? Well, a wonderful ride, choice of modes, big 13 inch screen, (so we don't need our glasses,) very low emissions, and as all Orthopaedic Surgeons value "perfect seats! Six years in development! Concert hall sound system for my classical music, class leading safety features and cabin architecture, combined with, no annoying extras list and 60 miles per gallon. On and on they went, but the best they saved for last, because of the extremely low emissions you pay very little road tax (Co2 of just 109g/km) which equates to only £30.00 road tax, and your tax benefit in kind is just 13%. That's great I thought, one I could put through the business, one that would not break the bank. It has to perform on several fronts, excellent quality, refinement, safety/security, my ego, fun when wanted, low costs, and I don't want to confuse it in the car park! So back in the real world, how would it perform on all those parameters? Off to the dealership, where I was introduced to the car, quite imposing as you could say, it's quite long at nearly 16 ft. But not at all flashy, first impressions good, seems it will fit the bill perfectly. Wow what's this I've pressed the start button, the lights have flashed up on the dashboard displays, but I can't hear anything, "is it on I enquire?" "YES" the dealer principal tells me, whilst trying to hide a smile, "It works on the electric motor when driven normally up to 25 miles per hour, only then does the petrol engine come on line." Subsequently when driving sedately around town, it is quiet with a linear progression as you gently squeeze the throttle ever so lightly, I was already enjoying this. It runs well through the gears and as I drive to my appointments, it is nice and easy, not in any way harsh on our badly maintained roads, smooth progression, no lost energy, seamless delivery. Don't get me wrong you can be a boy racer, just stamp your right foot down and it will surge forward. Either in full automatic or with even more drama using the paddle shifters on the steering column, good it EXPERT WITNESS JOURNAL 109
offers choices. The cabin is a pleasant place to be, no rush to end the journeys other than deadlines to meet with patients who mostly have sports or work related conditions, why don't they warm up properly or invest in a comfortable chair I sometimes wonder. On Friday it's the long drive to London for Mother’s day weekend. I have read reports that have criticised the boot capacity, but we found that everything we needed fitted in what I would describe as a massive boot. Performing better than our Evoque when some items would have to sit across the back seats, perhaps it the shape that helped on this occasion. Considering we're travelling mid-day on a Friday, the M6 & M1 were remarkable light on traffic, making rapid progress. I was amazed when glancing at the instrument display, that we were travelling at nearly 80 miles per hour, using only 1,700 revs (on the flat) achieving 60 miles per gallon, astonishing. Alas it did not last, we made the mistake of committing to the M25, one junction in we meet a wall of traffic, an hour to move just a mile and a half, oddly this did not faze us. Instead we put it into eco mode using electric power only. I must tell you that when decelerating or braking, the car harnesses this energy. Converting and storing it in the hybrid batteries so you never have the problem of physically charging it. Toyota Motor company I believe are responsible for and own the patents on this technology and it is now being used across the Lexus range, and soon I imagine with economy of scale on other Toyota vehicles. If you go for example to a BMW dealership as we did for analysis, and enquire of their Hybrid cars, the reply was "Oh we don't have any here, we suggest that you buy the diesel instead". The equivalent competition will cost between £10,000 and £20,000 more in the same specification, this is because I'm told they have to license this wonderful technology from Toyota. The Lexus GS300 Hybrid is a recently introduced car, one they should shout about from the roof tops, if it was to be produced in large numbers, then the volume German car manufacturers would be very concerned. Oh I nearly forgot, another pleasant surprise was to discover that it enjoys zero congestion charge. ■ SPRING 2014
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Krazy Horse Keeps the Motorcycle Action Coming with ‘Spring Night’ Specials including the ‘Norton’ Launch Destination venue launches new season’s entertainment for petrol heads Suffolk-based custom motorcycle specialist Krazy Horse is kicking off another series of events this time to coincide with start of the 2014 motorcycle season. The three events at its new venue at Empire House, Lark Valley Business Park in Bury St Edmunds come at a time of lighter evenings and vastly improving weather. The ‘Spring Nights’ specially- themed evenings of entertainment will be running on the first Thursday of the month and will follow on from last year’s ‘Autumn Nights’ programme of evenings that attracted over 150 people to each event. On 3 April Krazy Horse will be launching itself as a new UK dealership for Norton® Motorcycles – the first one of its kind in the UK - and will be staging Norton Night to celebrate this move which will see them selling the latest range of Commando 961 motorcycles, including the 961 Café Racer, apparel and accessories. The Norton Company was formed in 1898 by James Lansdowne Norton, who began supplying motorcycle and bicycle parts. He went on to produce his first motorcycles in 1902 using French and Swiss Engines and soon after in 1908 produced his first Norton engine bike. In 1907 a Norton motorcycle won the very first Isle of Man TT race and its strong racing tradition followed from here. By the mid 1930s Norton produced nearly 4,000 road bikes and then with the onset of the Second World War increased production to supply nearly a quarter – over 100,000 – of all the British military motorcycles produced. It was in the 1960s that the Commando was introduced to the UK. However, by 1976, the Norton along with other great British brands had been driven to the brink of extinction by recession and overseas competition. Following development in the US and more recently in the UK the new Commando 961 Cafe Racer, SF and Sport are now available once again and can now be seen at Krazy Horse. Commenting on the arrival of Norton Motorcycles in Bury St Edmunds, Paul Beamish owner of Krazy Horse said: ‘The 111 year-old, heritage Norton brand is back in the UK and US which is great news for motorcycle enthusiasts everywhere. Now hand EXPERT WITNESS JOURNAL 110
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built at the British motorcycle manufacturer’s Hasting House facility at Donington Hall, the bikes are processed and shipped in small numbers to countries around the world.’ ‘We are delighted to be one of the first regional UK dealerships to support the distribution of Norton in the UK and interest in the bikes has already been immense.’ Stuart Garner, Norton Motorcycles Owner, says: ‘Our point of reference – ‘Made in Britain built by British hands’ – is our essential guidance in the development of our bikes. Norton motorcycles were conceived and designed from the start to be proper British Roadsters. These are bikes that excel in the real-world street-riding conditions of the twisty bits on secondary roads. Every Norton is fitted with the best suspension and brakes for confident road manners with superior road-holding, and a quality of fit and finish rarely seen today.’ On I May the company will host May Day Mayhem, an evening for all things custom and performance while 5 June will be TT Night dedicated to the speed and nostalgia of Tourist Trophy racing and featuring bikes from motorcycle manufacturers from around the world, including the Italian race-producer Paton who will be at this year’s Isle of Man TT with a road-going version of the Kawasaki 650-powered twin. These late nights follow on the success of last year when they launched as a new Indian Motorcycle® UK dealer – one of only 70 to be appointed outside of the USA saw
The late night openings will feature live bands, refreshments and a licensed bar served from the ‘Rockers’ Cafe which will be open from 6.00pm until 10.00pm. Admission is free. The evenings are being staged at a time when custom, go-fast motorcycles are enjoying widespread popularity in the UK and around the world, as the result of greater media interest created by programmes including Cafe Racer on the Discovery Channel on Sky TV and other car and bike restoration and history programmes. ■ For more information on the evenings, call 749645 or visit www.krazyhorse.co.uk or see Krazy Horse on facebook and twitter. Contact: Paul Beamish @ Krazy Horse on 01284 749645 or email@example.com or mobile 07989 561 718 or Alison Baker @ Madhouse PR on 01284 830321 or firstname.lastname@example.org or mobile 07771 658 612.
them selling motorcycles, apparel and accessories. Indian Motorcycle® is America’s first motorcycle company. Formed in the early 1900s, the brand began dominating on the racetrack and its motorcycles provided invaluable support for allied forces in WW1 and WW2. With more history than any other bike brand, Indian Motorcycle® has just launched a refreshed range for 2014 including the Indian® Chiefs® range of motorcycles – Chief Classic, Chief Vintage and Chieftain.
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The Lexus CT200h the World’s First Full-hybrid Compact Premium Car A stylish car that is very quiet and economical petrol-wise Not only is the Lexus CT200h the world’s first full-hybrid entrant in the ‘compact premium’ car category, but it is also Lexus’s first compact model. The CT200h provides the usual high standard Lexus luxury with 21st century eco demands. The best of both worlds The beauty of the CT200h driving system is an epicyclic transmission, which allows the engine to drive the front wheels and/or charge the battery at the same time. The efficient method of recouping braking energy as electricity gives the Lexus excellent fuel consumption around cities and towns, coupled with the ability of running very short distances in pure electric mode. For longer journeys however, it's effectively a car with two engines. The long-stroke engine has a combined output of 134bhp, the engine and the electric motor get the 1.4-ton Lexus off the mark with alacrity. And CO2 emissions of 94g/km mean a 10 per cent benefit-in-kind rating, it also avoids any diesel surcharges.
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The car has three modes; Eco mode, Eco mode reduces power, softens the respective electronic mapping and slows the air-conditioning pump. Normal mode, the standard Lexus engineering and luxury Sport mode, releases the system's full 650 volts, allows the engine to rev harder, with more dynamic software mapping for the throttle and electronic power steering, while reducing the abruptness of the stability and traction control electronics. Inside the cabin is upholstered in a mix of leather upholstery, wood and aluminium inserts and comfortable and supportive seats with excellent side support. With clever upper and lower split between displays and functions and a neat computer mouse style pointer system for the multimedia, the interior embraces the usual mix of Prius-style energy flow diagrams and battery drain/ recharge instruments and takes them to a new luxurious vantage point. The Lexus CT 200h offers excellent value for money, when you compare it with its nearest competitors. ■
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