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MEDICAL ISSUES 7 Instructions: issues for the medical expert
Treatment and complications of lower limb trauma
Work and upper limb pain
Refusal to intervene: cherry-picking or shrewd clinical management?
On course for compensation – golf injury claims
Spinal injuries Urology? – Whats that all about?
Law firm’s extreme weather warning for employers
Meteorology in legal cases
IPI membership gives ‘mark of quality’ to investigators
Graphology in all its glory!
A print like no other
Running a railway is not as easy as playing trains
Urology – the ‘Cinderella’ surgical speciality
Rehabilitation following treatment for head and neck cancers
Thyroid cancer treatment – kill or cure?
Medico-legal matters: clinical records and delay in diagnosis
Psychological assessment and rehabilitation after road traffic accidents
There really is an alternative
The fury of fences
Flawless or clueless – why are concrete floors so problematic?
Dispute resolution for the residential occupier
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THE SUBJECT OF accident compensation generally focuses on the level of physical injury sustained – but psychiatric damage as the result of an accident can, in many cases, be more serious and long-lived. One example is the case of post traumatic stress disorder (PTSD), where the patient continues to relive the terror of the accident through disturbing dreams and flashbacks and often develops avoidance behaviour and depression. It is worth noting that moderate severity PTSD can attract compensation awards of between £4,500 to £12,500. In this issue, we include coverage of psychological rehabilitation after road accidents – which can include treatment for problems such as reactive depression or being unable to drive or even be a passenger in a car without recalling the trauma of the accident. Compensation for severe physchiatric damage generally ranges from £30,000 to £63,000, with moderately severe psychiatric damage attracting between £3,250 and £10,500 and minor psychiatric damage between £800 and £3,250. Still on the subject of accident compensation, this issue also includes coverage of the subject of spinal injuries – which generally attract larger amounts of compensation because they often cause some degree of paralysis and can have a life-changing effect on the victim. One example of this is a case involving a passenger paralysed in a car crash who was awarded a record breaking £11.15 million payout. The award to Wasim Mohammed is the highest reported personal injury compensation payout in British history. Mr Mohammed was five days off his 19th birthday when he was severely injured in a car that was being driven by someone who was then a friend. He was in the front seat of the car when it clipped a vehicle at a junction and ploughed into a wall. He broke his neck, damaged his spinal cord and is now a tetraplegic, with very little function in his arms and no function at all in his legs. Mr Mohammed now needs two careers to help him with everyday activities like getting out of bed and washing. The £11.15m package included a lump sum of £4.25 million and annual payments of £235,000. With warm regards
Martina Martina Wilson Business development manager
Instructions: Issues for the
Medical Expert by Mr Richard Rawlins MB BS MBA FRCS THE FORTHCOMING REFORMS to the NHS means tomorrow’s GP will no longer be fully attentive to the individual patient, but rather will have to consider the whole population for whom they are responsible. A similar situation has arisen for the lawyer-patient relationship. 25 years ago a solicitor would have been instructed by an individual patient seeking damages for personal injury. Lawyers requiring a medical opinion on the merits of the case would seek out an expert of repute from local colleagues of their knowledge, sometimes guided by the APIL Directory and the independent Your Expert Witness. But pressures of commercialisation, enlarging client base and a wider geographic pool of clients began to dissipate the relationship between client and lawyer, and lawyer and doctor. The advent of contingency fees has encouraged these developments, but presents a problem of cash flow whilst the case is settled. Doctors have no training nor inclination to offer significant credit, anymore than employees will offer credit to their law firm. Medical reporting agencies have been only too happy to assist – not only with credit, but also with identifying suitable medical experts. ‘Suitable’ not always referring to the ability and expertise of the expert, let alone their understanding of Civil Procedure Rules and requirement to be unbiased, but rather their acquiescence with the fee offered. Non-compliance leads to fewer if any instructions. The medical expert has become answerable to agencies, not the Courts, nor patients and their lawyers. ‘End of case’ settlement may be reasonable for lawyers, but can introduce inappropriate conflict of interest for the expert. It is not too difficult to write a report in such a way that the case settles quickly, in which case the expert will receive their fee expeditiously. But that may not always be in the best interest of the patient. Prognoses cannot always be finalised at an early stage and delay may be necessary for damages to be more accurately assessed. Such recommendations may disadvantage experts themselves. The medical profession does not approve of contingency fees, nor of arrangements for settlement which could introduce bias, but if an expert does not comply with an agency’s terms on this point, further instructions are unlikely. And financial pressures have led to some agencies entering administration owing significant sums to experts. ‘Fees for obtaining reports’ may be recovered. However that is a typically lawyerly phrase, disguising not only the fee for the report itself but also the charges made by the agency. These are often more than the expert’s but are rarely declared as such. This is a major issue for experts. We have no fear of a free market for our expertise, but it is not free if our fees are not openly declared. Yet agencies have proved most reluctant to clearly identify their own fees and prefer to conflate theirs with the experts’. Experts are instructed not to send invoices to law firms, who remain ignorant of the details of charges. The ability of lawyers to exercise informed choice about an expert, or a reporting agency, in a free and open market has become restricted. Many cases are initiated by insurance companies. The injured client assumes their insurers will do the best for them, but has little understanding of any negotiated agreements between companies acting for the injured party and for the defence. The patient’s lawyers should accept this responsibility but have the same conflict of interest as the medical expert – non-compliance can lead to non-instruction. Most experts are pleased to offer clarification of a report where necessary – and very often at no charge. But when required to communicate only through the auspices of the instructing agency it is quite impossible to
know whether or not the agency is putting on a significant fee for simply transmitting a letter. And they do. The medical profession is now demanding the ability to communicate directly with lawyers when questions are raised. Bearing these issues in mind, lawyers should be encouraged to instruct experts directly. Registers such as Your Expert Witness and the APIL Directory are valuable for identifying suitable experts, but not for issuing instructions and settling invoices. Experts can offer ‘end of case’ settlement but will have to include the cost of credit in their fee. The lawyer will have to be assured the expert is truly independent and not simply offering a quick and cheap service. If agencies are needed to identify experts, it must be clear they too are independent, and that any fees they enter are not contingent on their relationships with insurance companies. The medical and legal professions must continue to work closely together. With good communication, the intervention of third parties is unnecessary.
q • Richard Rawlins MBA FRCS. Consultant Orthopaedic and Trauma Surgeon. Chairman, UK Consultants Conference 2008 to 2010. Member, Medico-legal and Private Practice Committees, BMA. Recognised APIL Expert Witness.
Treatment and complications of
lower limb trauma by Mr Peter James, Consultant Orthopaedic Surgeon at BMI Castle Consulting Centre, Nottingham THE ABILITY OF man to suffer injury means the art of fracture treatment has long been practised by a variety of professions. The treatment options available have obviously evolved from those employed by ‘Bone Setters’, though all our current techniques have semblance to their more primitive form. The role of immobilisation of fractures has long been recognised as an important treatment principle for successful union of the bone and consequent limb salvage. The earliest documented form of fracture treatment is from ancient Egypt and involved wooden splintage to immobilise the injured limb. With time, methods involving external and internal fixation of bone have evolved and now form the main stay of modern fracture management. Whilst splinting of fractures allowed healing in closed fractures, historically the presence of an open fracture meant certain death for the individual. Recognition of the effects of contamination and subsequent strategies to avoid infection have clearly altered and changed this outcome. Modern fracture management, particularly of the lower limb, requires a full understanding and knowledge of all aspects of the presenting injury. The assessment must include an appreciation of the mechanism of injury as well as an understanding of the severity of all aspects of the trauma, before any treatment strategy can be initiated. This article will address the basic principles of assessment and management of the injured lower limb and highlight the consequences of failure to fully appreciate the nature of the presenting injury.
The fracture pattern also depends on the external force applied to the limb. The major considerations are magnitude and direction of application of force. For long bone fractures four injury patterns are described which correspond to the direction of applied force. The four basic fracture patterns are as follows: Compression Force Tension Force Torsion/Twisting Force Bending Force
– – – –
Short oblique fracture Transverse fracture Spiral fracture Butterfly transverse fracture
Clearly many fracture types involve a combination of forces and are an amalgam of these patterns. Severe high energy trauma which imparts significant load will lead to increased comminution (fragmentation) of the fracture which indicates more severe soft tissue involvement and compromise.
Assessment of injury Accurate assessment of the injury is of paramount importance to ensure
Understanding the injury It is of paramount importance that the full extent of any injury is recognised and fully appreciated. Assessment of the bony injury is easily made and evaluated with plain x-rays or more sophisticated imaging if and when required. However, it is all too easy for the Orthopaedic Surgeon to focus on the nature and complexity of the bony injury but ignore the severity of the associated soft tissue damage which is also present. This is a common mistake which can lead to problems when a treatment plan is created. Clearly a full assessment of neurovascular function is required in all trauma situations. Failure to either recognise such injury or to document the assessment not only leads to delay in essential treatment but also makes subsequent evaluation of the patient after treatment more difficult and creates doubt as to whether any problems encountered are related to the injury or treatment itself. Likewise it is imperative to understand and recognise the severity of any contusion or crush injury which potentially compromises the integrity of the soft tissue envelope itself. Operating through such tissue will risk poor wound healing with consequent risk of infection and poor outcome.
Fracture patterns The nature and severity of all fractures is dependant on a number of factors, including the morphology and structure of the bone, the integrity of the bone, the magnitude of the force applied to the bone and the direction of the force applied. The shape and size of a bone along with the relative proportion of cortical and cancellous bone present in each, impacts upon their ability to resist external force. Likewise the general integrity of the bone is important, as anything which compromises this predisposes the limb to fracture. The most obvious example is osteoporosis but other conditions including osteomalacia and metastases will weaken the bone thus increasing fracture risk.
the correct management of lower limb trauma. This should start with an overall assessment of the patient documenting all injuries sustained and should ideally involve all acute specialities. It is also imperative to understand the patientsâ€™ general medical status and whether or not significant comorbidities exist as this impacts significantly on treatment tolerance and risk. Accurate assessment of the injured limb is clearly important. The neurovascular function should be assessed and documented and close inspection of the overlying soft tissues, to assess the degree of contusion and compromise, is imperative. Radiological evaluation with plain x-rays is a bare minimum in the assessment of the injured limb. Complex and peri-articular fractures usually require more sophisticated imaging including CT and MRI scanning. This sophisticated imaging may induce delay in treatment, but this is preferable to poor treatment which often stems from inadequate appreciation of the extent of injury. Only after full assessment can an accurate treatment plan be established.
Medico-legal issues One of the problems encountered when commenting on the management of musculo-skeletal trauma for medico-legal purposes is the large number of accepted options available to deal with the injury. Most fractures can be managed by a variety of means with little agreement or consensus on the preferred option. Conservative management usually implies closed techniques such as traction, slings and plaster cast immobilisation. The vast majority of fractures managed within the United Kingdom continue to be treated conservatively as outpatient injuries with a combination of these options. Its value in the management of simple fractures should not be forgotten. Operative fracture management is usually required for articular fractures and displaced long bone fractures. The alternatives for operative treatment include internal fixation, with plates and screws or intra-medullary nails, or external fixation using standard external fixators or circular â€˜Ilizarovâ€™ frames. If possible internal fixation is preferred over external fixation as these devices are easier to manage for both the patient and the surgeon. The basis of internal fixation is restoration of axial alignment and anatomic reconstruction of articular surfaces with maintenance of position by achieving skeletal stability with the implant construct. A number of different philosophies are used for internal fixation which influence fracture healing differently.
Complications The complications of lower limb trauma can be summarised as systemic and local. Systemic complications of fractures include fat embolism syndrome, thrombo-embolic disease and, in severe cases, multi system organ failure. More local complications of fractures include soft tissue and vascular insufficiency, osteomyelitis and infection as well as compartment syndrome, malunion and non union. Often the most emotive of these complications is compartment syndrome which consists of an increased pressure within a fascial envelope producing vascular insufficiency with progressive ischaemic damage to the structures within that compartment. Early recognition is essential to ensure maintenance of function through immediate fasciotomy to release the fascial envelopes thus decreasing the pressure within.
Summary I have given a broad outline of the important aspects of fracture management in the lower limb and hope I have aided in the understanding of the treatment options and complications which can arise from the management of lower limb trauma. q
Work and upper limb pain by Dr Michael Cawley MD (Lond) FRCP (Lond) AN ASSOCIATION BETWEEN work activities and pain and other symptoms in the arm and hand is well recognised. It remains a controversial area from both medical and legal aspects. Relatively well defined are a number of soft tissue lesions which can be provoked or exacerbated by repeated heavy manual tasks. These include tensoynovitis, bursitis and carpal tunnel syndrome, all of which, if due to work, are prescribed diseases covered by Industrial Injuries Disablement Benefit. Less well defined and understood are symptoms which occur in workers, usually office based, who spend prolonged periods of time undertaking physically light but intensely repetitive tasks such as typing and continuous computer use. A variety of terms have been used for this condition including Repetitive Strain Injury (R.S.I.) in Britain and Australia, Cumulative Trauma Disorder in North America, and Occupational Cervico-Brachial Disorder in Scandinavia and Japan. The more general and non-specific term Work Related Upper Limb Disorder (WRULD) is also widely advocated. These symptoms are characterised by pain often felt diffusely in the forearm and hand and provoked by intensive keyboard work performed rapidly, for prolonged periods, against time deadlines. This type of condition has attracted much attention since intensive office desk work became widespread, but a similar condition was first described in detail by Ramazzini in Italy in 1713, affecting workers performing intensive clerical tasks. When assessing any work related upper limb symptoms it is always also necessary to consider the neck since changes in the cervical spine, which may not be related to work, often cause referred pain in the upper limb. The clinical and medico-legal analysis of patients with any of the abovementioned conditions is complex, since symptoms may also occur without exposure to work. In regard to specific soft tissue lesions, these can usually be diagnosed by characteristic physical signs. Modification of particular manual activities combined with rational medical treatment will often produce relief. In contrast, patients suffering from ‘Repetitive Strain Injury’ often do not exhibit specific physical signs, and the usual spectrum of laboratory and imaging investigations performed in rheumatic conditions are either normal or show coincidental changes not related to the symptoms. The diagnosis in this group requires a careful study of the working conditions and medical history. ‘Repetitive Strain Injury’ is widely accepted as due primarily to overuse of muscles and other tissues, with in some cases the addition of psycho-social influences. Alleviation of the symptoms requires modification of work patterns before symptoms become intractable. This must include rest periods or diversion to other tasks in order to allow recovery of overused muscles between episodes of intensive keyboard activity, together with ergonomically determined modification to the work station. q
Refusal to intervene:
cherry-picking or shrewd clinical management? by Mark Phillips, Consultant Orthopaedic & Trauma Surgeon, King’s College Hospital, London WHEN A DOCTOR takes on a duty of care by agreeing to see a patient he will frequently decide that no intervention is in the patient’s best interests. The patient may then be discharged. The symptoms may remain, but the patient has to accept that intervention would have been unlikely to produce an overall benefit. Surgeons in training are often taught that ‘case-selection’ is part of the art of achieving reliable good outcomes and, on the surface of it, this appears to be the case. But what becomes of the patients who remain symptomatic after discharge? Are they included in the surgeon’s outcome data? I would argue that they ought to be. This point is particularly relevant for difficult cases, such as those referred to specialist centres. In these days of government targets, patient reported outcome measures, high rates of litigation, close scrutiny of mortality rates and high levels of vigilance for evidence of patient harm, it would be relatively easy for a surgeon to become risk-averse. If patients discharged without intervention are not included in any analysis of patients under that doctor’s care, then the data that is gathered on that doctor is at serious risk of being misleading. Including all referred patients in any analysis of outcome would correct this to some degree. It would also go some way towards introducing patients to the concept that they could litigate against surgeons who choose not to intervene. Patients (and their solicitors) have always seemed to me to be relatively blind to blame in this direction. An example is required. Take a patient who is moderately symptomatic from a condition and who may have a 70% chance of being helped by an intervention, but with a 20% chance of staying the same and a 10% chance of being made worse. The patient chooses the intervention, is made worse, and may be inclined to sue. Whilst the claim may be unsuccessful (because the consent form was clear), the litigation is still costly and unpleasant for all. However, 70% of patients in the same condition are made better. If the patient and surgeon had agreed not to treat with an intervention, the patient would have remained symptomatic when they could have been symptom free. They would not normally be inclined to sue under those circumstances. The symptoms still ‘belong’ to the patient at that point. Post-intervention however, any symptoms are then the ‘responsibility’ of the surgeon. The difficulty lies in proving that the patient may have benefited from the procedure which has been denied them. It is particularly difficult in
rare or ‘off-piste’ cases where outcomes are more difficult to predict. For example, rates of successful outcome for knee replacement are well known, but successful outcomes for treatment of pseudarthrosis of the tibia in children with neurofibromatosis are more specialised and variable and case numbers are small. I hope it is clear from this argument that non-intervention is not to be taken lightly and attitudes to risk will influence behaviour in physicians and surgeons. Perhaps a closer eye cast over the ‘ones who got away’ will shed some light on the ones ‘in the bag’ – who already have enough eyes roving over them. q
On course for compensation – golf injury claims PLAYING GOLF or even being around golfers can lead to a surprising number of injuries – and compensation claims with substantial amounts being awarded. Golf ball injuries can be particularly serious, and the player who hit the ball can be held liable in certain circumstances. For example, one compensation company in the UK quotes its highest payout for a golf ball injury as being around £90,000. Recent events suggest that golf compensation companies are quite prepared to fight a claim in the courts, meaning that anyone who does receive a golf ball injury would be wise to engage a legal expert to support their accident case. Other areas where potential injury may be caused through golf-related activities include those arising from a golf buggy malfunctioning, a ‘stray’ golf swing, a heavy golf bag strap breaking or simply slippery substances on the floor in or around the club house. If injuries arising from any of these can be shown to be another person's fault, then the sufferer may be eligible to make a compensation claim through a personal injury lawyer. A ruling made by the Court of Appeal in 1998 stated that golfers who mis-hit shots causing injury to other persons would be liable to pay damages even if they do shout “Fore!”. This ruling had a significant impact on a case involving two golfers from Kent – a civil servant and a company director. The incident happened after the company director hit his tee shot into the rough and played a provisional ball which he ‘duck hooked’, hitting the civil servant on the right temple as she walked forwards to the ladies’ tee. She was rendered unconscious and taken by ambulance to hospital where she was treated for her injuries. She was later awarded damages of over £80,000 (including legal costs). In a separate case, a woman hit on the head by a golf ball whilst attending her son’s golf lesson was awarded almost £24,000. The woman suffered a serious head injury that required immediate emergency medical attention and left her with a noticeable scar on her forehead. q
Spinal injuries Urology? – Whats that all about? by Mr Simon Fulford FRCS(urol), Consultant Urologist, Golden Jubilee Spinal Cord Injury Centre, James Cook University Hospital, Middlesbrough FOLLOWING A SPINAL cord injury probably the last person a patient may expect to see is a urologist. “I’ve broken my neck – what has that got to do with my water works?” is not an uncommon reaction to meeting me for the first time. The bladder is controlled by nervous reflexes in the lowest part of the spinal cord, which in turn are influenced by complex neural connections up and down the spinal cord to the brain. Any Injury to the spinal cord is therefore likely to affect the bladder. This may not only result in loss of bladder sensation and incontinence but also in renal damage. This can occur as a result of poor bladder emptying, urinary infection, renal stone formation or excessively high bladder pressures. Historically, most patients with spinal cord injury died of renal failure until as recently as the second world war. It was the introduction of good bladder care that revolutionised the prospects of spinal cord injury patients. It is now exceptionally rare for these patients to develop renal failure.
This patient with a severe spinal cord injury is at significant risk of major urological problems
Initially, indwelling catheters are used whilst the immediate effects of the injury are dealt with. Once this initial phase is over future bladder behaviour, and therefore management options, will depend on the level and completeness of the spinal cord injury, the patient’s other disabilities, their social circumstances, their motivation and numerous other factors. This is generally where the urologist first has a significant role in assessing the patient and recommending and implementing appropriate bladder management regimes. This assessment will involve a careful clinical examination and a urodynamic evaluation of the bladder to document behaviour and the safety or otherwise of the bladder pressures. Management strategies are then recommended that are safe and will prevent renal damage, that are convenient and acceptable to the patient and which will promote their independence as much as possible. Generally each patient will be able to choose between different bladder management options – for instance between a permanent bladder catheter, regular clean intermittent self catheterisation or wearing a condom sheath urinal. Many of the options such as insertion of a suprapubic catheter, division of the urethral sphincter, injection of Botulinum Toxin in to the bladder or augmentation cystoplasty will require
This X Ray demonstrates a poorly emptying, high pressure bladder with bilateral ureteric reflux which is causing renal damage in a patient with a spinal cord injury
highly specialised operative procedures by the spinal injury urologist. Life long follow up and surveillance is also very important as late complications such as renal stones, recurrent urinary tract infections, incontinence, blocked catheters and incomplete bladder emptying are common. Renal damage may result, so most spinal injury patients will be reviewed annually with a renal ultrasound and clinical assessment. Further investigation with urodynamics or cystoscopy will be arranged as required and bladder management regimes altered as appropriate. As well as caring for the patients’ bladders and preventing renal damage, spinal injury urologists also tend to be involved in these patients’ bowel care and sex lives! Rectal sensation and defeacation depend on the same parts of the spinal cord as the bladder and are affected in a very similar way to it following spinal cord injury. Clearly, unpredictable and uncontrollable faecal incontinence has a huge adverse affect on patient’s quality of life. Good bowel care is therefore central to good quality of life after spinal injury care. Patients and their carers are therefore taught appropriate routines to facilitate regular, controlled bowel evacuation. Erections, female sexual arousal, climax and ejaculation also all depend on the integrity of the spinal cord and are likely to be altered by spinal cord injury. Assessing and assisting with these problems – and resulting fertility issues are all areas where the spinal injuries urologist can help. A final area where an expert urologist can help a patient with a spinal cord injury is with their compensation claims. An expert medical report from an experienced spinal injuries urologist is essential in these cases to help address all the issues around bladder, bowel and sexual function, their current care, future needs and prognosis. A urologist without a spinal injuries background is simply not able to provide this level of expert evidence. q
Urology – the ‘Cinderella’ surgical specialty by Mr Duncan Harriss DM FRCS(Urol), Consultant Urological Surgeon UROLOGY IS A fascinating surgical specialty with a wide variety of pathologies that can affect many aspects of a patient’s health and it is important for those in medico-legal practice to understand the breadth of the medical causation that may arise. Urologists diagnose and treat diseases as diverse as cancer, infection, stones, kidney failure and disorders of important bodily functions such as urination and sexual ability including fertility. The urinary system is often involved in pelvic and abdominal trauma and may be damaged by trauma during gynaecological or rectal surgery. It is my experience that many aspects of urological diagnosis are poorly understood outside the specialty. This may occur in part due to reduced exposure to doctors in medical school but also due to a false perception that this is a ‘Cinderella’ specialty without important consequences. It is not, for example, only involved with the inconvenience of ageing bladder function. The following cases are common examples of how urological causation can devastate patients’ lives: Case 1. Male aged 24 involved in an RTA coming off his motor cycle and sustaining a pelvic fracture causing a ruptured urethra. He also fractures his femur, humerus and several ribs. He is on ITU for several weeks and leaves ITU on crutches. After 6 months he is back at work and playing sport. He remains incontinent and impotent. The pelvic fracture disruption destroys his urethral sphincter and erectile nerves. We often find that although the orthopaedic injuries are immediately life threatening and disabling, it is the soft tissue injuries that are important in the long term. In this case the man is faced with a lifetime of difficulty with incontinence and erectile potency which are devastating for him and his partner. Case 2. Female aged 46 undergoing hysterectomy for heavy periods which is complicated by negligent injury to her right ureter and bladder. She needs further treatment for a vesico-vaginal fistula and obstructed kidney. After 18 months she has has had 3 further abdominal operations and has only just had her urinary drainage tubes removed. Patients having routine surgery should not have to face the prospect of further surgery to repair negligent injury to the urinary tract. In
this case the woman hoped for a routine operation for a benign symptom and now faces years of hospital treatment with complicated reconstructive surgery to restore her bladder function and save her kidney. She is now unable to work or lead a normal social life due to the problems with urinary incontinence. Case 3. Male aged 16 presents with acute testicular pain. He is assessed by his GP and treated with antibiotics for presumed testicular infection. In fact he has an acute testicular torsion with only 6 hours to save the testicle. Unfortunately the antibiotics do not relieve the pain and he returns the next day with increasing testicular swelling and pain. Urgent referral leads to appropriate testicular exploration but unfortunately the testicle is already necrotic and has to be removed. Testicular torsion is a surgical emergency and may present to the GP or A&E in its early stages. Initial assessment is often performed by inexperienced doctors when time is critical to save the testicle. There are profound psychological and physical consequences of negligent failure to diagnose testicular torsion in its early stages. Case 4. 36 year old male semi-professional footballer develops a severe exacerbation of lower back pain. He notices incontinence of urination and weakness in his legs. The GP prescribes analgesia and bed rest without a full examination. After 3 days the patient self refers to A&E. An MRI scan reveals a prolapsed sacral disc compressing the spinal cord, causing pressure on nerves to the urinary bladder and lower limbs. A surgical decompression at this stage fails to prevent permanent nerve damage. This is a missed case of cauda equina syndrome where the opportunity for surgical sacral spinal disc decompression was delayed for 3 days. As a result he is left with lower limb paralysis and a permanently catheterised bladder. He cannot achieve an erection. His employment is terminated and his football career is over. He and his wife are coming to terms with a life of incapacity and a loss of intimacy. q
• Mr Duncan Harriss DM FRCS(Urol) is consultant urological surgeon at Nottingham University Hospital’s Urology Centre. He has developed a substantial medico-legal practice over the last 12 years. His clinical interests include the diagnosis and treatment of diseases of the prostate, bladder, kidney, testis and penis including cancer, stones and incontinence. His research thesis explored the underlying mechanisms of bladder and prostate function. He is an examiner for the Royal College of Surgeons and an advisor to the Fitness to Practice Panel of the GMC.
Graham J. Cox
MB BS BDS FRCS (Eng) FRCS (ORL), consultant surgeon, expert witness
A CONSULTANT ENT surgeon at the John Radcliffe Hospital in Oxford and a Macmillan Head and Neck Surgical Oncologist for fifteen years, Graham J. Cox MB BS BDS FRCS (Eng) FRCS (ORL) has served as an expert witness in many industrial noise induced hearing loss cases, as well as in both private and NHS Trust medical negligence cases. Mr CoxÂ has contributed to national guidance in head and neck surgical oncology, has advised the National Cancer Action Team and NICE in this area and has made numerous presentations at international specialist meetings and workshops. He has a particular interest in quality management in medicine and is a Specialist Associate of the General Medical Council. He has led Deanery Quality Assurance visits and has served as Vice Chair of the Specialist Advisory Committee in ENT for the surgical Royal Colleges. As such, he has been involved in curriculum development in ENT surgery, and in setting standards in post graduate medical education. q
Rehabilitation following treatment for
head and neck cancers
by Mr Graham Cox MB BS BDS FRCS(Eng) FRCS(ORL)
MACMILLAN CANCER SUPPORT, along with many professionals who care for patients with cancer, recognise that the after effects of a diagnosis of cancer as well as the effects of treatment live with the patient until the end of their life. The current emphasis on ‘survivorship’ is very timely, especially with respect to patients who have head and neck cancers successfully treated. Many of these treatments change the patient’s function in terms of speech, eating and chewing, swallowing and breathing. These changes are more acute in the early phase of recovery from treatment, but may persist as a life-long change in function. The functional loss can occur whether the patient is treated with surgery or radiotherapy – with or without additional chemotherapy. Early diagnosis and timely treatment is very important, as not only does this improve the chance of curing the patient, but it can also help to minimise and avoid some of the side effects of treatment. Management of the patient in a specialist centre can also help with preserving and restoring a patient’s function. However, even with optimum treatment the effects may require lifelong support from members of the head and neck team. We use surgical techniques which can often allow patients to speak after surgery, removing the larynx or ‘voice box’, and the quality of the voice can at times be very close to the patient’s pre treatment voice.
Many of the patients who have cancers removed surgically require plastic surgical techniques, involving complex flaps or grafts, to restore their surgical defects and the functions of chewing, eating and drinking. Rehabilitation with custom built prostheses is a very skilled and specialist area. The main difference in the quality of life of head and neck cancer survivors from other cancer survivors, is that the effects of treatment cannot be hidden from friends, family or work colleagues. The way patients look, speak, eat and drink are sometimes all too obvious and conspicuous. The acute side effects of treatment can be severe and, at times, life threatening. The effects of the treatment that Michael Douglas is currently undergoing are widely reported in the media and all too obvious to see. Whilst many of the acute side effects improve with time, the long term and sometimes lifelong changes to the patient’s function can lead to social withdrawal, isolation, depression or other mental health issues. They also have other effects in terms of future employment. The quality of life after treatment is the most important factor after survival for both patients and carers alike, and great emphasis is taken in this respect by the multi-professional teams who care for patients. From a medico-legal perspective, trying to assess the consequences of referral delays or delays in treatment from
whatever cause is complex. Assessing the quantum of additional handicap, functional loss or restriction in employment following substandard treatment is not straight forward and requires careful and informed consideration. This specialist area of clinical practice is best served from a medico-legal perspective by oncologists and surgeons who practice in this area. They are much better placed to give the appropriate advice and help to patients and their advocates than clinicians from a general ENT, Maxillo-facial surgery or oncological background. The cost, both in terms of life-long financial support for the necessary dental rehabilitation, speech restoration and dietetic support of patients can be very significant – not to mention the cost to the patient in terms of changes in lifestyle and amenity as a consequence of treatment. All of the clinicians who practice in this difficult and specialist area seek to give patients the best chance of cure whilst maintaining function and quality of life. When this does not happen for reasons of poor practice – as well as the additional help and support required from specialist professionals – the patients require the same level of specialist expert advice from their legal team. q • Graham Cox is a Consultant ENT surgeon and Macmillan Head and Neck Surgical Oncologist based in Oxford.
Thyroid cancer treatment – kill or cure? by Dr. Clive Harmer MB FRCR FRCP, Clinical Oncologist THE MOST FREQUENT type of compensation claim seen by medical negligence solicitors in the UK is failure to diagnose cancer when it first presents. Delayed diagnosis permits the tumour to advance. An advanced tumour will demand more aggressive treatment with the probability of additional complications. Late diagnosis may also result in the tumour spreading into the rest of the body. Known as metastases, these are typically impossible to eradicate and frequently prove fatal. The thyroid gland is a butterfly-shaped organ that lies at the front of the lower part of the neck on either side of the windpipe. It produces the hormone thyroxine which controls the tempo of body functions. Thyroid cancer is rare but fascinating in two respects. Firstly, it typically occurs in young people with a female to male predominance of 3:1. Secondly, it is being diagnosed with increasing frequency as a result of the widening availability of investigative techniques such as ultrasound and scanning. Tumours of the thyroid present as a lump or nodule; the term goitre simply means an enlargement of the thyroid gland. The vast majority of these tumours are benign and require no treatment. However, malignant tumours present in the same way so diagnosis must be made by clinical examination, ultrasound and fine needle aspiration cytology – where a tiny specimen is examined under the microscope. Treatment of thyroid cancer is usually achieved by an operation that removes all of the thyroid gland plus any adjacent involved lymph nodes. Replacement thyroid hormone is then required life-long, a high dose being thought to minimise the risk of cancer recurrence. Total Thyroidectomy is the operation at which all thyroid tissue is removed. It is a safe procedure provided it is undertaken by an experienced surgeon, who may be either an endocrine surgeon or a surgeon who deals only with diseases of the head and neck. Care and skill are required to avoid damage to the recurrent laryngeal nerves – otherwise the patient will be left with a hoarse voice. It is also essential to avoid removal of the parathyroid glands – which lie on the surface of the thyroid – otherwise the patient will be left with a low serum calcium and require vitamin D plus calcium tablet supplements life-long. Should either of these complications occur, a claim against the surgeon can be successfully defended provided there was contemporaneous written documentation demonstrating due care was taken. The majority of patients also require the administration of a large dose of radioactive iodine given in hospital to ablate (or destroy) any residual normal thyroid issue and any tiny areas of tumour spread which may otherwise have been left undetected. These will show up on a radioactive whole body scan and further iodine can be administered, if necessary, until all tumour has been eliminated. Because pain is rarely a feature of thyroid cancer, and because the majority of patients are cured, the most common medico-legal scenario is that of a claim of negligence for delayed or missed diagnosis. In one large American series (Mazzaferri and Yhang, 1994) delay in diagnosis correlated with cancer mortality. The median delay was 18 months in patients who died of carcinoma compared with 4 months in those still living (p=0.001). Cancer mortality was 4% when patients underwent initial therapy within a year but 10% in the others. As the majority of patients with thyroid cancer are young and have a good prognosis, the effect of treatment on reproductive function is another important area of concern. Preliminary results of the first ever British National Trial in Thyroid Cancer have shown that low dose radio-active iodine ablation is as effective as high dose. The next trial will evaluate whether omitting radio-active iodine completely is as effective as low dose in patients with a likely favourable outcome. One case in which I was involved rested on the claimed excessive use of radioactive Iodine ( I-131). A young woman had probably been cured after a single ablation dose but had been given an additional dose because her tumour had demonstrated several adverse features. Her resulting dry mouth and theoretically slightly increased long term risk of developing a second (radiation induced) malignancy were deemed to be unnecessary and avoidable side effects of this second treatment. q • Dr. Clive Harmer MB FRCR FRCP is a Clinical Oncologist ( Cancer Specialist). He established the Thyroid Clinic at the Royal Marsden Hospital, London in 1974 and was Head of Unit until 2005. Although retired, he actively remains both registered and licensed. He has extensive medico-legal experience in the diagnosis and management of all types of cancer with High Court appearances in London and Belfast.
Medico-legal matters: Clinical Records and Delay in Diagnosis
by Terence J Duffy MA FRCS, Consultant General and Breast Surgeon IT HAS PREVIOUSLY been common practice for expert witnesses to receive the relevant medical records prior to meeting with the litigant and preparing reports. However, there has been a change in recent months with respect to the necessity (as judged by the Court) of expert witnesses having access to, and referring to, medical records of the litigant pursuing a personal injury claim when formulating Reports to the Court. As a result the expert witness must rely only upon the account of the circumstances of the injury given by the litigant when seen in consultation. Details contained in the medical records are relevant to the expert witness who is required to opine as to whether the nature and extent of trauma experienced by the litigant was sufficient to result in the injuries and disabilities that have resulted. Contemporaneous medical records are clearly a benefit to the expert witness under these circumstances. Further, details of loss of amenity, important in assessing quantum, will be included in the Report without corroboration from impartial, third-party (e.g. general practitioner) clinical records. Indeed, many experts will have experience of the situation where the account given by the litigant is either not confirmed by the clinical records, or is completely at odds with the general practitioner or hospital notes. One such example may be where the litigant claims that a hernia resulted from trauma sustained in an incident or accident at his place of work on a certain date but is contradicted by the general practice notes which records the presence of a hernia several weeks of months prior to the incident. Whether this is a result of a faulty memory on the part of the litigant or something more mendacious, the matter is more likely to be clarified (and settled) at an earlier stage if the expert witness includes any such disparity of account in his report. The Court will rightly (and incontrovertibly) assert that it is the role of the Court, and not the expert witness, to test the credibility and validity of the evidence in the case. Nonetheless, if the Court is to rely on the opinion of the expert witness to guide it in its deliberations, it seems reasonable to accept that a better informed expert is more likely to provide a more lucid and definitive opinion. Whether the savings of time and expense driving the move to dispense with the provision of clinical records to the expert are a real or a false economy remains to be seen. Delay in diagnosis is a common issue in clinical negligence cases involving patients with breast cancer. The court will frequently ask the expert witness to give an opinion as to the likely size and extent of a breast carcinoma if it had been diagnosed at a specified date prior to the actual date of diagnosis. Differential prognoses and treatment options will, obviously, be based on a comparison of the differences between the two scenarios. Based upon a relatively limited literature on the subject, the expert will attempt to formulate an opinion to assist the Court in making these comparisons. However, the topic is not one on which all experts agree: the method of estimating the size of the tumour at a specified previous date is given here is an example of the methodology, with the basis for reservations explained by some experts. Determination of the growth rates of carcinomas are difficult to make in view of the multiplicity of factors that govern those rates.
However, it is possible to make estimates of the growth rate of primary breast tumours, and to take into account the effect of the patientâ€™s age on the growth rate. The effect of patient age on tumour growth rate may be particularly significant in some cases since breast carcinomas frequently progress more rapidly in the younger, premenopausal woman. Assuming a mean doubling time of 80 days, calculations would show that a tumour of 4 cm at the time of diagnosis would, approximately 600 days previously (the date at which the litigant may have claimed that the diagnosis was missed) have undergone 7 doublings (of the number of cancer cells) between those dates, have been approximately 8mm in size and not been susceptible to clinical detection. For a younger woman, Tumour Doubling Time may be significantly shorter, reflecting faster growth rate in the younger woman and resulting in a significantly smaller estimated tumour size at the earlier date. The retrospective calculation of tumour size at a date prior to the date of diagnosis based on the tumour size at the time of diagnosis has several limitations which are important for experts to both realise, and to acknowledge in their declarations to the Court. The methodology used relies on a calculation of Tumour Volume Doubling Time derived from cases of breast cancer where serial mammograms, made prior to diagnosis, can have been reviewed and where the progressive enlargement of the breast cancer has been measured on these sequential-mammograms. The methodology used permits calculation of growth rates using the formula for the volume of a sphere as the model for exponential tumour growth. However, the use of this means of retrospective size estimation is contentious for a number of reasons. Firstly, there are variations in Tumour Doubling Times which relate, principally, to patient age and tumour grade. Consequently, there are significant variations in the derived growth rates reported in the literature. Further, the data on the initial cancer size relate, perforce, to their mammographic appearance and there is no uniform correlation between imaging and pathological size. Finally, the rates calculated by these methods assume that tumour growth is exponential. It is generally agreed that a Gompertzian (mathematical) model of tumour growth is more appropriate. Gompertzian growth predicts a slowing of growth rate, and a consequent increase in doubling time, as tumour growth increases. As a result, the use of an exponential, as opposed to a Gompertzian, model of tumour growth may result in an estimated tumour size which is significantly smaller at the earlier date when it is claimed that a cancer was potentially diagnosable on the basis of tumour size. Notwithstanding these limitations, experts will, reasonably, be expected to assist the Court by giving their opinion in such matters, while making the limitations of his conclusions clear. Two other, closely related, areas where the Court may require expert opinion â€“ those of the likelihood of lymph node involvement by breast cancer and patient prognosis based upon the histological characteristics of the tumour â€“ are beyond the scope of this article but may be discussed subsequently. q
Psychological assessment and rehabilitation after road traffic accidents by Dr Aftab Laher BA (Hons.) MSc PhD C.Psychol. AFBPsS UKCP IT IS WELL known that being involved in a road traffic accident (RTA) can often leave the victim with psychological trauma as well as physical injuries. This article briefly outlines the typical psychological consequences following RTAs and how psychological rehabilitation can play a vital part in the injured person’s recovery. While it is very normal for a person to experience some psychological distress such as intense anxiety after an RTA, the severity of the distress, how long it endures and how badly it affects the person’s quality of life can vary depending on a number of factors. Some people recover psychologically within a few months, others may suffer for years and some may experience either a delayed reaction or a waxing and waning pattern. How can we best assess the likely psychological consequences from an RTA? The scientific and clinical evidence base relating to RTAs, while not foolproof, does provide some useful guidance on this. Clearly, each individual case is unique and there is no perfect way of predicting the psychological reaction after an RTA, but the following factors appear to be important: • The severity of the accident. For example, RTAs involving • life-threatening injuries or witnessing death and serious injury • are likely to be much more traumatic than minor accidents • where the person might have sustained mild whiplash. • The extent and duration of physical injuries. Where the • person has sustained chronic (i.e. endure for more than 6 • months) musculoskeletal injuries, brain and spinal cord injuries • then the psychosocial consequences can be more complex, • severe and enduring.
should be arranged. In most cases, the earlier such assessment can be undertaken then the better, as rehabilitation can then be planned earlier. This should help to prevent well known problems which can complicate and prolong a person’s psychological recovery. For example, depression may set in if the person has remained housebound for many months without any real plan of help. However, it also needs to be recognised that some individuals may not be ready for full psychological assessment due to their physical condition and/ or internal psychological barriers. The psychological assessment should be undertaken by a Health Professions Council (HPC) registered Psychologist or BABCP Accredited Cognitive Behavioural Psychotherapist who has expertise in trauma work. Ideally, the clinician needs to have expertise not just with psychological trauma but also with psychosocial rehabilitation of people with physical disabilities. This is because the ongoing physical disabilities and injuries can come to form a big part in the person’s ongoing psychological status. Typically, psychological assessment would involve an in-depth clinical interview of at least 1.5 hours and use of a package of psychometrically robust questionnaires that tap into the physical, emotional, cognitive, behavioural and social dimensions. Commonly used scales include the Clinician-Administered PTSD Scale (CAPS), Impact of Event Scale (IES), The Hospital Anxiety and Depression Scale (HADS) and the Beck inventories (BDI-II, BAI-II). Specialist questionnaires may be added to assess the psychological impact of specific conditions such as chronic pain. In cases of known or suspected brain injury and cognitive impairments it would be vital to undertake neuropsychological assessment that allows assessment of broad intellectual ability as well as specific capacities such as memory.
• Pre-existing disposition and vulnerability. A person’s pre • accident psychological history can often have a bearing • but individual assessment is vital as the links can be complex. • For example, some people who have had severe trauma in the • past may cope better with the RTA as they are able to put it into • perspective; others might see the RTA as a ‘final straw’ and • might suffer a very severe reaction. • The availability of personal, social and professional coping • resources. Individuals who are able to draw on self • management strategies, social support and who have access • to suitable evidence-based psychological treatment within • several months of the RTA are likely to recover more quickly. Good quality psychological assessment within 6 months of the RTA
Clinically, the findings from psychological assessment following RTA can typically reveal that the individual is suffering from or has suffered from one or some of the following primary complaints: • Post Traumatic Stress Disorder (PTSD) • Adjustment Disorder • Specific Phobia, usually in the form of travel anxiety • Pain Disorder • Neuropsychological impairments, such as memory problems It is not unusual to find secondary reactions to the ongoing recovery, especially if recovery is prolonged. These reactions might include depression, substance-abuse problems, social anxiety and aggravation of pre-existing conditions. Depending on the psychological status of the individual, one
or a combination of the following evidence-based approaches to psychological rehabilitation is recommended: • Cognitive-Behavioural Therapy (CBT). This essentially • involves helping the person to first explore and identify • unhelpful patterns of thoughts and behaviour which are known • to perpetuate the ongoing psychological difficulties and, • second, to gradually challenge these by learning and applying • more realistic and adaptive ways of thinking and behaving. As • such the emphasis is not just on getting the person to change • ‘negative thinking’ but also to help them put in place helpful • practical and behavioural changes. Treatment courses can last • from 6 sessions to around 20 sessions. • Systematic Behavioural Desensitisation. This is really a • component of CBT but can be used alone. It is particularly • useful in treating phobias such as travel anxiety. The main • idea is to get the person to draw up a graded hierarchy of their • feared situation and then help them to gradually face up to each • step starting from a situation which is reasonably comfortable. • The person is taught to use relaxation and anxiety management • strategies as they work through the steps. Treatment courses • can be from 6 sessions to around 20 sessions. • Eye Movement Desensitisation and Reprocessing(EMDR). • This is a form of therapy, used particularly with PTSD, in which • the therapist helps the patient to recall and reprocess the • emotions from the traumatic incident. The therapist does this • through trying to stimulate the person’s brain through • stimulating eye movements and using sound. Some patients • have been known to respond well to this treatment within a few • sessions. • Pain Management/Physical Rehabilitation. This intervention • is usually based on a CBT framework. As such, the treatment • is consistent with the evidence-base which strongly supports • the need for a biopsychosocial approach to managing chronic • physical problems such as pain. An ‘outright cure’ of physical • disability or pain is not seen to be realistic. Instead the • individual is taught cognitive and behavioural strategies to • help them to self-manage, to cope with the pain and to • make realistic adjustments to their quality of life. This treatment • course can be given in the form of individual treatment lasting • from 6-16 sessions. Group pain management programmes • are also well established and very effective. The typical format • is that the person attends a group of around 8 other patients • that is facilitated by a multidisciplinary team and that involves • attending for 1-2 long sessions per week for up to 8 weeks. q • Dr Aftab Laher is a Consultant Clinical and Health Psychologist. He is HPC Registered and an Accredited Cognitive Behavioural Psychotherapist.
The tools of fire investigation by David Townsend FIFireE, MFSSoc ONE PROVEN AND established tool in fire investigation is the use of fire dogs. Their purpose is to detect the presence of flammable liquid or flammable liquid residue in fire debris and they can be trained to detect as many as 10 different odours. They indicate to handlers any positive find by various means such as sitting, staring, nose pointing or pawing (although pawing is generally discouraged due to disturbance of evidence). Their olfactory abilities are not in doubt – between 250 and 2000 times more sensitive than a human nose and they can detect odours far more dilute than those detected by portable gas detectors. When compared to portable gas detectors, a dog’s best asset is speed. A dog can sweep a whole neighbourhood in minutes for any discarded bottle or canister that may have been used to carry the liquid. These items, when found, are often undamaged by fire and yield forensic evidence to link to a suspect. The fire investigation canine is a ‘tool in the box’- but does not and should not replace any other. It can only tell it’s handler that it has found something of interest to itself. Something that it thinks will earn a reward (a favourite ball). Most times the dog will react to one of the odours for which it is trained. Of course it cannot discern between the odours - that is a job for the laboratory. But there are sometimes false indications. Some hydrocarbon-based materials at fresh fire scenes emit vapours similar to the dog’s target odours. The dog may learn that making a positive indication earns the reward it craves in this fun game. It is also the case that a fast-acting dog may miss a trace. This is why it is important for a fire scene to be examined by a trained and experienced investigator.
Portable gas detectors have their place too. Essentially, they sample the atmosphere and pass the sample over an element that compares the sample’s flammability with the gas upon which the detector has been calibrated (there are many designs and operating systems). They give a reading of the concentration of the gas or flammable vapour detected and can aid with locating the optimum area from which to take a sample for laboratory analysis. It may also indicate that the area should be evacuated! They are quick and easy to use and can be used in inaccessible places such as under floors and in voids. They can be used to outline an area of flammable vapours, thus tracing the approximate area of any pouring of flammable liquid and identifying separate pour areas. Although both dogs and gas detectors play a vital role in fire investigation, probably the most important tool of a fire investigator is personal skill that is founded on experience and training, together with a tenacious, enquiring mind. q
Law firm’s extreme weather warning for employers A LEADING NORTH West law firm says business should act now to safeguard themselves against staff headaches caused by the freezing weather. Mace & Jones urged employers to move quickly as hazardous snow and ice covered much of the UK recently. Martin Edwards, Head of Employment at Mace & Jones, said that the heavy snowfall last January – which led to thousands of businesses shutting down or operating with a skeleton staff – should have been a wake-up call for employers. He said: “Many businesses simply did not have plans in place to cover such extreme weather conditions and were ill equipped to deal with staff absences and office closures. Employers should give urgent attention to ‘severe weather’ issues, such as workplace closures, staff absences, working from home, disruption to transport services and road closures, and disciplinary sanctions for sham ‘snowball’ days.” Mr Edwards added that even in extreme weather conditions, employees are obliged to go into work. “Therefore if a member of staff cannot make it in an employer can withhold a day’s wage,” he said. “However, employees should not feel pressured to risk their safety to go into work, so common sense is advised, and if an employee has exhausted all travel options then working from home should be considered as a reasonable option.” School closures can also be problematic for businesses if staff members cannot organise childcare. In these cases, Mr Edwards said there are statutory rules which allow parents to be absent from work if there is an ‘unexpected disruption to childcare’, but that this should be followed consistently by employers. He added: “Unfortunately some people will seek to take advantage of bad weather and their employer’s good will. This could be a disciplinary matter if a business wishes to pursue cases of potential abuse, however after the initial conditions subside employers could state that any further
time off will be taken as holiday – employees may then suddenly start finding ways of getting in.”
Health & Safety issues Mace & Jones also warned employers that failure to properly grit work premises affected by snow, ice and frost, risks compensation claims from staff or public who fall on slippy surfaces. The firm’s personal injury lawyer Jeremy Bradshaw said that falls account for more than a third of accidents at work. “Car parks should be gritted or salted to reduce snow and ice coverage,” he said. “Extra care should be taken over places where there is a greater risk of danger, such as steps or slopes. Care should also be taken to prevent slipping in instances of transfer of snow or water off shoes onto polished floors as people enter buildings. Absorbent mats should be placed inside doors to collect water off shoes. Regular checks should be made to ensure that the mats haven’t become too damp and are failing to absorb the water.” Mr Bradshaw said employers or building managers should keep documentary evidence to show that such procedures are not only in place but are being carried out. “Failure to carry out these precautions will render an employer or building manger liable to compensate the injured person,” he warned. “The lack of any documentary evidence may mean that an employer or building manager can’t satisfy a court that systems were in place to prevent the injury resulting in them being found liable and having to pay compensation.” q
Meteorology in legal cases by John Greetham, Forensic Meteorologist THE FORENSIC METEOROLOGIST carries out an investigation into the weather over a few hours, days and on occasions over many months or even years. But why do the courts need an expert in meteorology? Although meteorology is an every day science, in that almost everyone understands the terms – fog, snow, rain, hail etc. – the forensic meteorologist is required to examine weather records and offer an opinion based on the minutiae of the science. This, almost always, involves preparing the equivalent of a weather forecast. He is required to explain to the court why, when and where the weather occurred and how it affected the incident. In many cases of flooding and others the defence of Act of God is offered, not always successfully. (Rylands v Fletcher 1868, although liability is strict, Act of God is a defence.) It is of course a matter for the judge in each case to decide whether a particular weather event is an Act of God. The meteorologist’s part is to describe to the court, by means of a written report and if required verbally in the witness box, the evolution of a weather event. From the records, witness statements and other sources he must give an opinion on any matter concerning the weather that affects the case. For example it maybe a question of how much rain fell, how strong the wind was, what time ice formed. On some occasions a forensic entomologist needs to know the weather over a number of days, in particular temperature and humidity, to assess the effect of the weather on the development of fly larvae in a body. The role of the meteorological expert witness is the same as any expert witness: To give an honest and unbiased opinion based on sound scientific principles with supporting data and references to published work. The weather is a matter of record and is well documented, not only in the weather records, but in the case of severe weather events and often road traffic accidents, in newspapers, on television, in witness statements, etc. Although there is a time element involved, the changes of the various weather parameters in terms of time are fixed. It is therefore a problem of spatial separation of the weather events at the nearest weather stations and the weather at the site of the incident that the expert has to consider. The opinion is based on weather data from a variety of sources – the internet, the Met. Office. witness statements, the media and on some occasions CCTV from the site of the incident. Although meteorological evidence is not vital in many cases, occasionally it is very important. Such a case was R v Agis. Mr Agis was the designer of a large plastic multicoloured structure through which the public walked listening to music. The structure was tied down by ropes pegged into the ground. He was charged with manslaughter as well as breaking health and safety rules. The structure lifted off the ground in a park at Chester-le-Street injuring twenty or so people and killing two. Meteorological experts were employed by the prosecution and defence. The case was heard in the Newcastle Crown Court. The expert for the prosecution gave as his opinion that the cause of the accident was a strong gust of wind which should have been anticipated. CCTV was available throughout the day. The day was very hot and sunny with very light winds until about one minute before the structure rose vertically into the air. Trees near the structure suddenly showed violent movement whilst other trees further away were generally still. The nearest weather stations did show quite strong winds at times but the site of the incident was much more sheltered from the prevailing wind than the weather stations. The meteorologist acting for the defence disagreed with the prosecution expert on the wind theory. The defence expert’s theory was that the top surface of the plastic structure became very hot. This caused air to rise over the structure in a strong thermal and the structure was sucked off the ground. The sudden increase in wind over the nearest trees supported this theory as air rushed in to replace the rising air. In the event the expert for the defence was not called to give oral evidence. It appears that the CCTV evidence was conclusive in destroying the wind theory. The jury could not
agree on a verdict and Mr. Agis was found to be not guilty of manslaughter but guilty of breaking health and safety regulations. In Goodes v E. Sussex C. C. (House of Lords Appeal June 2000) the weather was also important. The claimant skidded on ice whist overtaking and crashed into the wall of a bridge and suffered severe injuries. A weather report showed the high probability of the presence of ice on road surfaces which would have been obvious to drivers due to hoar frost on grass and trees. The claimant lost in the high court, won the appeal court and lost in the House of Lords. q • Coates-Greetham was started by John Greetham after a career in the Met. Office spanning thirty seven years from 1951 to 1988. Starting as an observer, then forecaster and eventually in 1986 head of the legal enquiry section as a Senior Scientific Officer. Over the last twenty six years reports have been submitted in both civil and criminal cases. Cases have covered a very wide spectrum from murder and rape to minor traffic offences. On the civil side, personal injury, road traffic accidents and building delays covering many months. His first court appearance was in 1984, one month after joining the enquiries section. The case was one of murder. A taxi driver was killed when a rock was thrown off a bridge during the miners strike of 1982. A policeman had given evidence that he saw the accused by bright moonlight on a cloudy night with light drizzle. His evidence was withdrawn. Reports, prepared by Coates-Greetham have covered the weather in Bangladesh, The West Indies, Bulgaria, Romania and at 37,000 feet over the Eastern Atlantic just off West Africa, 14,000 feet near Chicago and other cases at flight level concerning injuries to cabin staff due to turbulence.
IPI membership gives ‘mark of quality’ to investigators by David Pryke, Secretary General, Institute of Professional Investigators THE INSTITUTE OF Professional Investigators (IPI) was created in 1976 in an effort to create a professional and academic body that had as its chief aims the creation of qualifications in investigation. The Institute’s original objectives did not include representation of the industry but it accepted this mantle sometime after its inauguration. Participants in the IPI come from a broad range of investigation sectors including, but not restricted to, private investigation. Our members also originate in the police, fire service, railway industry, the DWP and other specialist areas of investigation. Members pride themselves on having professional qualifications recognised and accepted as their own ‘mark of quality’ by their peers. Such qualifications are an independent measure of an investigator’s skills, knowledge and experience. Vetting also includes an extensive background check conducted on our behalf by a highly respected specialist in that field. The IPI has provided training seminars in various investigation subjects on an ad hoc basis. It currently provides David Palmer, IPI incoming Principal
an instructional manual which is available as a distance learning course, on-line (www.ipitraining.org.uk). Subjects covered by the course include management of investigations, tracing, criminal investigation, process serving and personal standards and management. The majority of investigations conducted by our members are the result of, or designed to assist in precluding the need for, court proceedings. They also serve commerce in debtor tracing as well as the tracing of witnesses and other people who may benefit from being found – such as, missing benefactors to whom money is due from intestacies. Full Membership of the IPI is equated to NVQ Level 4 in Investigation. Although this qualification has not been popular and will soon be usurped by the lesser requirements of licensing competency criteria, the IPI will always insist on that level of knowledge being evidenced in an applicant. Participants can also attain higher professional status by seeking Fellowship of the Institute, achieved by production of a thesis based on an investigation subject of their choosing. The subject selected by the applicant must first be agreed by our thesis panel, and must be on the subject of investigation – not be an investigation in itself. Subjects addressed have included Intellectual Property investigations, tracing of missing persons and interview methodology. Regardless of their educational and professional status, high ethical standards are still expected and demanded from participants in IPI activities. This means that membership at any level is a marketable asset which publicly demonstrates a participant’s professionalism, and it is something that a client can rely upon when it comes to their own expectations.
The IPI has also represented investigators at Governmental level on issues affecting their activities. For example, it makes representations to the Office of the Information Commissioner, which has resulted in policy amendments in the way that the Office deals with investigators. Recently it took up the cause of investigators when the Information Commissioner chose an unrelated criminal case to attack the investigation industry in general. In that case, an ‘information broker’ was obtaining personal data by fraudulent means – an activity frowned upon by professional investigators who only use lawful methodology in their work – so making the evidence obtained admissible in a courtroom. This ethical practice always reflects well on a client, something potential customers should consider when appointing someone to effectively conduct their affairs. The same care should be taken as when choosing a lawyer.
Qualifications At the moment no qualifications are required by private investigators, but it is anticipated that this will shortly change following the enactment of the Private Security Industry Act, as a result of which PIs will require licences, probably by the end of 2011. Licences will be awarded to those with approved proof of competence and after criminal records checks are completed. At this time, there are few qualifications that we can say apply to private investigation in the UK. Some courses have not, in our opinion, obtained academically strong recognition and we would not accept them as qualifications for IPI membership. Such courses are usually advertised in the popular press and have been put together by marketing companies with no professional connection to the investigation sector at all. That said, EDI have a qualification under development which will, subject to amendments when the SIA announces its final requirements, address the required competency level for licensing. Potential clients looking for an investigator can do nothing better than to seek out an IPI member, whose professionalism is unquestionable. Go to www.ipi.org.uk to seek out an investigator by name, location or specialism. q
Graphology in all its glory! How handwriting analysis is used in litigation by GERRY CASEY, Consultant Graphologist, BSc(hons) MSc, DAS. AQG. THE AIM OF this article is to enlighten people who are new to the science of graphology, or handwriting analysis, and to those who would wish to gain an insight into that science and to the many uses of graphology, especially in forensics and litigation. Most solicitors, I would imagine, are familiar with graphology but may not have acquired a deep knowledge in terms of its versatility and of how valuable it can be to their practice. Here follows a brief history. Although there have been references to graphology from as early as 120AD it wasn’t until 1622 when Camillo Baldi,a professor at the University of Bologna, produced the first known major work on handwriting analysis. However, most scholars agree that Abbe Jean Hippolyte Michon (180681) of France was the true founding father of modern graphology and it was he who coined the word graphology from the Greek words grapho (I write) and logos (theory/doctrine). An emininent pupil of Michon was Jules Crepieu-Jamin who moved from Michon’s system of definite signs to a more elaborate system of a co-ordination of dominate signs and this system still holds sway in the modern French school of thought. Signs, I must add, are the various stroke formations that indentify the character traits present in every individual’s unique handwriting. In 1897, a quest for graphological research was pursued and two notable contributors were Doctors Georg Meyer and Ludwig Klages. Meyer was a psychiatrist and Klages an eminent research worker and the acknowledged high-priest of the German theoretical school. Klages’ achievements and those of Michon form the real basis of graphology. In time as with all theories, Klages work was questioned, especially by Max Pulver, a Swiss graphologist and he began to link graphology with the discoveries of psychology pertaining to the subconscious mind. The last part of the 20th century has witnessed tremendous changes in the field
of graphology in North America and Europe. The rise in popularity of the internet has brought a renewed interest in graphology – it is now popular rather than obscure. A google search unearths a vast knowledge of the subject and rather than graphology living in the dark ages, the globalized world can now avail itself of graphology in a way that was denied before. Professor Alice Coleman in her article Explaining Graphology to the Laity reports that graphology is a university subject in countries as diverse as Italy, China, USA and Argentina. She adds that it is taught in Spain in five universities. Further, she states that research shows that writing reveals the same traits as psychological tests and in cases of doubt, graphology is as likely to be accurate as psychology. Sadly, in this part of the world, graphology would appear to be somewhat neglected and overlooked. Surely, the time has come to embrace graphology and to avail of the wonderful solutions it has to offer. Today, it is unusual for anyone to dispute the merits of psychology. However, graphology originated long before psychology. It is fundamentally allied to psychology, yet psychology appears to be suspicious of graphology and this begs the question: Is graphology a threat to psychology and for what reasons? There has been a long standing view that graphology is not accepted by mainstream psychology. What can graphology contribute in terms of litigation and forensic science? Recent evidence suggests that solicitors are offering work to graphologists on a more constant basis than before. Why this is so is debatable. Is it possible that graphology is at long last gaining credibility or is current forensics beginning to acknowledge it as a valuable tool in that domain? Let’s take for example the comparison between fingerprinting and handwriting analysis. John Wetton, consultant graphologist, explains the difference between fingerprinting and handwriting analysis as follows. “Generally speaking, fingerprints present definite and unvarying patterns which either positively match the known fingerprints of a suspect or positively fail to match them.” He goes further by claiming that there are little or no grey areas between the two probabilities. In the case of handwriting however, the question of authorship is complicated by the fact that no-one writes a word or phrase
(not even their signature) exactly the same way twice. However, obtaining as many exemples of the questioned writing as is humanly possible is a way around this problem and can definitely minimize the variables involved. The area of graphology which interests law enforcement agencies worldwide is the field of questioned documents. Mr. Wetton believes that this field of analysis stretches an analyst’s powers of observation to the limit. Often it is impossible for the analyst to arrive at definite conclusions. He is of the opinion that an analyst is consequently forced, under certain circumstances, to offer an expert opinion rather than an unequivocal statement of fact. However experience, as in all professions, stands the analyst in good stead as he progresses along the path of expertise. It will be interesting to see how graphology evolves in the coming years as people become aware of it, especially through the new technologies and the information society and perhaps it will take its place as a rightful contributor to psychology, forensics and litigation. The Association of Qualified Graphologists reports that more members are being offered work in forensics and litigation. Perhaps a new day is dawning in terms of graphology breaking new ground and growing as a valued and reliable professional service to forensics and litigation. An expert witness in graphology can now avail himself of training in courtroom procedure with Bond Solon, leaders in expert witness training. They can receive training in report writing, courtroom skills, and in law and procedure. Two work assignments that I was involved with recently were an allegation that a doctor’s secretary forged her employer’s signature on prescriptions whereas another concerned a piece of writing in a diary belonging to an immigrant woman. The judge believed that someone other than she wrote the final entry in the diary. However, the immigrant in question had suffered a stroke prior to writing the final entry which could explain the difference in the writing style, although at first appearance, the two pieces of writing bore no resemblance. Such is the complexity of graphological tasks that can herald remarkable results. Yes, graphology is alive and well and looking forward to the future! q
A print like no other The role of graphology in a legal context YOU MAY RECALL the edgy days of the summer of this year when Raul Moat was on the run from the police. In the days of suspension that unfolded, handwritten notes were found. It was in this period that graphologist Simone Tennant-Smith had a unique opportunity to analyse Moat’s handwriting and give commentary of his character, feelings and emotions. Simone’s critique was featured in both local and national press. This is just one example of how graphology can be usefully employed when trying to ascertain elements of a situation, such as in the case of Moat. Moat, being reportedly a private person who did not give his emotions away, could however be exposed to some degree by virtue of his handwriting. Graphology has a growing role in a variety of legal situations. Simone has been a professional graphologist for 19 years, having studied for 3 years under the direct tuition of the internationally esteemed graphologist Yanis Pavlides. Her case work is varied and increasingly called upon in a variety of settings. This article sets to highlight the benefits of employing a graphologist to aid establishing culpability. Graphology is a well established method of character analysis and authentication. Handwriting is meticulously analysed to the finest detail, looking at every stroke, angle, pressure, spacing, size and punctuation. Increasingly solicitors, as well as private sector organisations, are employing graphologists. Fraud is one area where graphology is thriving as it is used as a means of validating the true identity of the documents completed by individuals, in particular signatures. Simone’s case work often centres on this area of law, for example establishing forged documents such as hire agreements, company references to gain credit, forged company formations and questioned signatures on loan documents. Individuals also seek the services of Simone for matters such as will disputes and poison pen letters. In cases of poison pen letters, character analysis is often employed to help establish the behaviour and identity behind the letters, particularly as victims often know the person writing the letters. In one case, Simone was employed by a tradesman who was being held as owing money for goods he had not ordered against his account with a supplier. The company alleging he owed money had forged his signature
to try and assert he had ordered the goods. The tradesman’s solicitor recommended he employed a handwriting expert to prove that the orders had not been signed by him. Simone produced a report after examining the signature which, upon scrutiny, was not that of the builders. Upon submission of the report to the court, the supplier asked for a continuation based on Simone’s expert evidence. In an employment tribunal case, Simone was employed by a barrister to prove whether a signature on a document, which was at the heart of the case, was genuine. Based on Simone’s expert report the opposing side settled on the basis of the report. Another example of success is when Simone helped a client who was being taken to court by a finance company, as a relative had fraudulently signed the individual’s name as a guarantor on a loan agreement. When the relative defaulted, the finance company went after the client. Simone analysed the signature and reported the signature to be fraudulent. Based on this evidence, the finance company dropped the case. Simone’s experience points to a surge in cases needing to prove authenticity or rather establish fraud. Simone commented “It would appear recent economic events have impacted on a trend in cases and civil disputes where fraud is alleged. Increased referrals from solicitors to provide expert witness reports have led to cases being settled outside of court, which can only be good for our over burdened court system.” q • To find out more about the services provided by Simone, please see www.simoneshandwriting.com e: email@example.com t: 01484 768285.
Contaminated land by Mike Smith, Contaminated Land Consultant TO MENTION ‘contaminated land’ is to invite confusion, since the term has a wider meaning than Contaminated Land as defined in Part IIA of the Environmental Protection Act 1990. Essentially it is any land where one or more potentially harmful substance is present as a result of human activity. It excludes land where there are naturally elevated concentrations of potentially harmful substances, unlike the definition in Part IIA. Despite the impression sometimes given, we have been dealing with contaminated land in the United Kingdom for over thirty years. The first government communication on the subject was issued in 1977 and the Greater London Council (GLC) published guidance in 1976. Contaminated land did not appear on the scene with the introduction in 1995 of Part IIA of the Environmental Protection Act 1990 which defines statutory Contaminated Land, a much narrower concept than that employed in relation to planning and the Building Regulations or in most of the published authoritative guidance. Over the years the guidance has become more extensive and detailed with some changes in terminology, but overall the approach has not changed. The early GLC guidance called for the identification of hazards and assessment of the risks to enable decisions to be taken about what to do. It spoke of the need for desk studies to find out about the history of sites and for systematic intrusive investigation. It introduced the first generic guideline values based upon generic risk assessment models and spoke about how they need to be used with professional judgement. This historic perspective is important because the principal questions arising in many legal disputes over contaminated land often concern: • what the regulator and/or consultant should have known at the time • (e.g. what guidance was available?) • what was good practice at the time? (i.e. what were knowledgeable • consultants and regulators doing?) • what standards applied at the time? (e.g. what guideline values applied • at the time?) Legal disputes around contamination are typically about: • failures to identify contamination when it was present due to poorly • designed and executed site investigations; • unnecessarily costly and expensive remedial works due to poorly • designed and executed site investigations; • poor choice and design of protective and remedial works; • poor specification (if any) of materials imported to site so that • contaminated material is introduced to the site. Contaminated land requires a multidisciplinary and polytechnic approach if it is to be satisfactorily investigated, assessed and remediated. Thus, those dealing with it come from a variety of backgrounds – chemists, geologists, environmental scientists, hydrogeologists and geotechnical experts and environmental health specialists. Many have developed deep expertise beyond their initial specialism and are aware of the distinction between expertise and knowledge. Unfortunately, ever since contaminated sites began to be formally investigated there have been many who have confused the two. Local authority officers and other regulators continue to complain about the variable quality of site investigations and consultants’ reports. The problems that arose in the past, and still a reason for them, is that clients and their agents (e.g. architects, structural engineers) are often poorly informed about the issues surrounding contaminated land and have little or no knowledge of site investigation processes or costs. Reducing short term costs often overrides consideration of the longer term costs that may arise because the regulators refuse to accept consultants’ reports or demand more work, for example, monitoring for ground gas over several months. The first government guideline values were published by ICRCL in 1978 with the last version appearing in 1987 and remaining in use until the 1990s when the first numbers derived used the newly developed CLEA (Contaminated Land Exposure Assessment) model were published. The
ICRCL guideline values were formally withdrawn but were occasionally cited in reports into the 2000s because of the low number of CLEA-derived numbers. Because there were only a limited number of ICRCL values, consultants and others often looked elsewhere. Popular choices were the Dutch Intervention Values and the GLC’s list (the Kelly numbers) of contamination classes. They were routinely used without any understanding of their derivation or the context in which it was intended they should be used. As some of the Dutch values were based on ecological risks rather than human health risks this could lead to overly conservative assessments of site conditions. The equivalent misguided approaches today are to: • take the current CLEA-derived numbers (both those published by government and those published by bodies such as CIEH (Chartered • Institute of Environmental Health) and EIC(Environmental Industries • Commission)) as indicating ‘significant possibility of significant harm’ • (SPOSH) as defined in Part IIA of the EPA 1990 – an overly • conservative approach; • assume that avoiding SPOSH (i.e. creating statutory • Contaminated Land) is all that has to be achieved under the planning • system – an insufficiently conservative approach. q • Mike Smith has over thirty year’s experience of dealing with all aspects of contaminated sites. He was Secretary of the ICRCL from 1977-1980. He has contributed to many authoritative guidance documents and is currently active in BSI and ISO technical committees dealing with soil quality, including site investigation and assessment.
Running a railway is not as easy as playing trains by Robert J. Crease BSc CEng FICE FCIArb Chartered Civil Engineer and Chartered Arbitrator Fellow, Permanent Way Institution CEDR-Accredited Mediator Member of ICE List of Adjudicators MOST PEOPLE HAVE travelled by railway, and it’s a form of transport that fascinates many by virtue of the ordered way in which it operates – or is supposed to. It’s very frustrating when it doesn’t work as advertised, and failures on commuter lines are particularly public and epitomised by the way that Reggie Perrin was late by 9 minutes every day but the stated cause was always different. Furthermore, a lack of understanding can adversely affect those who build new assets around existing railways. So what’s the real story behind the public perception? A modern railway is a sum of many, very complicated parts, each – and all – of which must function properly in order to move people and things from A to B. Even in the days when a railway only comprised earthworks, bridges, tracks and trains, accidents arose from human failings and the peculiar interaction between steel wheels and steel rails. Although he was not the first victim of a railway accident, the best-known, early fatality was William Huskisson MP, who was run over by Stephenson’s Rocket during the opening of the Liverpool and Manchester Railway in 1830. Railway safety has improved considerably since then, but railway accidents are more controversial than those which occur on the roads, because of the duty of care which railway operators owe to passengers and others. Signal engineering soon developed as a separate railway discipline to join those of civil engineering and of operations. Early signalling systems depended upon mechanical interlocking to prevent conflicting routes being set, and upon detection devices to prove that points were in the correct position. The small tolerance to which such equipment has to be set makes it susceptible to displacement under the massive forces produced by traction and rolling stock. Proper installation and maintenance of the track and of vehicle suspension are thus crucial to the reliable operation of the detection apparatus. The discovery of electricity resulted in its application to not just signalling and communications but also to the provision of traction power. Elements of the track are used in electrical signalling, communication and traction systems, and the circuitry in the rails and line-side equipment has to be arranged to keep the respective currents apart. The currents inherent in traction power systems are potentially destructive to signalling and communications systems which are designed only to cope with electricity of much, much lower power. Computerisation of control systems revolutionised the industry, and thousands of miles of track can now be signalled by remote control rooms. The need for reliability in cold weather after staff reductions led to the introduction of points-heating equipment, and security considerations have led to the widespread use of CCTV. Each railway system has developed technologically, but none can operate on its own: a change to one will almost invariably result in an adjustment to at least one other. Safety and fire specialists provide support to the engineers and managers who run modern railways, and co-ordination is required to make sure that all the systems work together with the focus on maximising reliability and availability. Interface management has thus come increasingly to the fore, and commercial pressures have introduced further complexity. The industry
in the U.K. was created by private companies, whose intense, mutual competition led to their demise, which was hastened by the Second World War. Nationalisation followed, as did privatisation after nearly 50 years of public ownership. Privatisation was strongly influenced by European ideas of inter-operability, which are intended to enhance competition and remove national differences from the effective provision of train services. The resulting separation of infrastructure providers from railway undertakings, as train operating companies are called, introduced the need for track access contracts and regulation, together with train performance schemes to incentivise the parties to co-operate. Some infrastructure providers have sought to lay off their risks under their contracts with their suppliers, but the ability of most contractors to absorb such risks is limited and this has led to conservative planning, reduced efficiency and increased costs. A major review is presently under way into the efficiency of the U.K. railway industry, and further restructuring is being considered. Thus modern railways depend not just on good practice within each railway discipline, which may be the responsibility of different corporate entities, but also upon effective leadership and co-ordination overall. Contractual and regulatory provisions provide models for the management of interfaces, but sometimes result in unintended consequences, and the construction of new assets around existing railways is subject to safety, technical and operational constraints as well as usual interface management considerations. The objective of running a railway is to provide a safe and reliable service at an affordable cost, so the prevention of accidents and failures is a critical consideration. Unfortunately, things can go wrong, and when they do, they have a habit of doing so at the worst possible time, although they are designed to fail safe. Failures and accidents can result from any number of possible causes and permutations, and the root causes are not always obvious, either before or even after the event. Expert advice can save time and money in getting to the heart of the matter, whether contentious or not. Running a real railway is not as easy as playing trains, not least because the stakes are infinitely higher. q • Bob Crease is probably the only Chartered Arbitrator who has held direct responsibility for the safety of the line. He has been responsible for over 1000 track miles of civil engineering infrastructure and up to 1100 staff, and he led the multi-disciplinary team which protected Railtrack’s interests during the construction of the Channel Tunnel Rail Link alongside the existing railway. Later, as Implementation Director for Union Railways, the client organisation on the same project, he signed the Safety Acceptance Certificate for the Eurotunnel and Railtrack interfaces and for Section 1 as a whole. He practises as an independent consultant and an adjudicator and has provided expert advice to Queen’s Counsel.
There really is an alternative BLOOD IS THICKER than water, and a happy family – just like a happy business relationship – is a wonderful power for good. But when the family falls out, blood curdles and that power for good is just as strong in tearing families apart. A recent headline in the Daily Telegraph read: “Rags-to-riches royals at war over £1bn inheritance.” The story is about the paternity of two children born of a surrogate mother of Italian noble blood, and one sibling goes on to say: “At first I tried to work something out together with my brother but it didn’t work out so I took it to the courts and now they will have to decide.” But what about the step in between? A discussion breaks down, so now the courts have to decide - is there no alternative? Of course there is: Alternative Dispute Resolution, ADR, most commonly in the form of mediation. I have mediated many disputes on a vast range of topics, with examples later; but first some background. It is not for me, a chartered accountant and mediator, to preach to lawyers the importance of mediation in civil proceedings. All litigation lawyers now know they risk costs sanctions for unreasonably refusing to mediate, from Dyson LJ’s checklist in Halsey v Milton Keynes General NHS Trust  EWCA Civ 576, yet there is still a reluctance to mediate. But now it’s getting serious.
should be prepared, explaining what ADR is and how it works, and listing reputable providers of ADR services. This handbook should be used as the standard work for the training of judges and lawyers. Nevertheless ADR should not be mandatory for all proceedings. The circumstances in which it should be used (and when it should be used) will vary from case to case, and much will come down to the judgment of experienced practitioners and the court.” So practitioners’ experience is respected, but Lord Jackson strongly supports ADR.
Some real life examples With identifying features removed, I could talk all day about the fascinating cases I have helped to settle by mediation; in private, cheaply, and amicably. Two will suffice: • A brother and sister were arguing over mother’s will. Sister had married at 18, never to return home. Brother had nursed his mother during her last illness, but had then gone off the rails, went to live in Thailand, became a junky and cavorted with young girls. So the siblings despised each other. Sister had put all mother’s furniture in storage and didn’t care about it, whereas brother yearned to own the family grandfather clock: he had wound it every night when going to bed after making his mother’s supper. Sister was persuaded to give up the clock, all the bile in the relationship melted away, and a settlement was quickly reached. Amazing! • The second wife and the deceased had been in property development. When the marriage ended, the property was divided; but because the wife
A New Procedural Code Let’s get back to basics. From CPR Part 1 – Overriding Objective – we see: 1.1(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly… 1.4(1) The court must further the overriding objective by actively managing cases… 1.4(2) Active case management includes (e) encouraging the parties to use an ADR procedure if the court considers that appropriate, and facilitating the use of such procedure… So the Court must manage cases, and it must encourage ADR and facilitate its use.
Friend, go up higher… This is what Lord Phillips of Worth Matravers has to say: “[I am] an enthusiastic supporter of ADR. It is madness to incur the considerable expense of litigation – in England usually disproportionate to the amount at stake – without making a determined attempt to reach an amicable settlement...” Judicial bullying? Certainly, but in accordance with the Overriding Objective, and for the good of the parties; for there is no doubt that the parties are in control during mediation, that it has a very high settlement rate, and that those who try it – parties and their lawyers – quickly become enthusiasts. I see this enthusiasm with virtually every mediation I conduct.
The Jackson Report To conclude Chapter 36 in his report on civil costs, Lord Justice Jackson says: “Alternative dispute resolution (“ADR”) (particularly mediation) has a vital role to play in reducing the costs of civil disputes, by fomenting the early settlement of cases. ADR is, however, under-used. Its potential benefits are not as widely known as they should be. I therefore recommend that: • There should be a serious campaign to ensure that all litigation lawyers and judges are properly informed of how ADR works, and the benefits that it can bring. • The public and small businesses who become embroiled in disputes are also made aware of the benefits of ADR. An authoritative handbook for ADR
by CHRIS MAKIN
took a home worth well over £1million, to equalise the division she had to give a charge on it to her ex-husband. That charge led to a dispute which rumbled on for 22 years! The deceased married a third and then a fourth time (do keep up!). His ultimate widow now had the benefit of the charge, and wished to execute it by forcing the second wife out of her home. She couldn’t afford to live there anyway; she was trying to arrange an equity release scheme, but that wasn’t possible because of this charge. So both parties were stuck. The matter in dispute was that the deceased had executed a codicil to his will, a few days before death, excusing wife number two from the charge. This made a mess of some highly effective IHT planning, and was contested on non compos mentis and undue influence grounds. If the case had gone to court, the outcome was quite unpredictable, except for huge costs. At the mediation we were able to arrange for wife number two to pay a modest sum to wife number four to release the charge, and wife number two was able to have her equity release. Thus both parties’ true needs were met, at a cost of perhaps £3,000 compared with £300,000 for a High Court action. So mediation can achieve much more than court action: speed, privacy, certainty, modest cost, and a meeting of the true needs of the parties.
So why should we mediate? • Because the era of clients with high principles and deep pockets is over. • Because judges will urge you to. • Because it is a relatively quick, relatively cheap way of resolving disputes, totally confidential, where the parties are in charge, and where their legal rights are unaffected should mediation fail. • Because, per Halsey, the onus is on the party refusing to mediate to justify to the costs judge why that refusal was reasonable. Adverse costs orders can be very expensive! • Because it achieves finality. • Because litigation destroys relationships, whereas mediation can rebuild them.
When should mediation be proposed?
The fury of fences by Roy Ilott of Roy Ilott Associates, Chartered Building Surveyors ONE OF OUR basic human instincts is defence of our territory. At its most noble this is shown by the heroism of our soldiers in time of war and, possibly at its most base, in squabbles over fences and trees growing on boundaries. Only by realising that this can be the subconscious driver of peoples emotions are we able to appreciate the deep anger, and frequent refusal to compromise, which boundary disputes can generate. I believe involved professionals should understand the tensions and passion which can fuel such disputes. There have, over the years, been several reported cases where seemingly rational neighbours have declared virtual war over work to, or the location of, a fence. Occasionally both sides are equal protagonists and the boundary dispute is the catalyst or focus of several issues. Sometimes, unfortunately, one side is the victim of bullying and unreasonable behaviour from their neighbour. In such occasions I usually advise that their choice is one of three options: • accept the behaviour and loss of land or amenity, • fight the issue through the Courts, because often only a police enforced • Court Order will change the neighbours action – expensive, and the • outcome is not always guaranteed, • move! The variety of disputes over boundaries can range from the domination of one party by parking or storage, of a shared access drive, the encroachment of an extension, the restrictions on future extensions by new overhanging gutters, the removal of bushes and the erection of a fence on a perceived ‘wrong’ line and, occasionally, the more blatant erection of a fence while one party in away on holiday. Thus fuelling these situations with a ‘defence of my space’ can create a heady cocktail! q
“The trick in many cases is to identify the happy medium: the point when the detail of the claim and the response are known to both sides, but before the costs that have been incurred in reaching that state are so great that a settlement is no longer possible.” Nigel Witham Ltd v Smith & Isaacs  EWHC 12 (TCC). Jackson LJ encourages greater use of mediation before litigation commences.
But why should I be the one to invite mediation? • Because it is not a sign of weakness. • Because it is a useful tactic to prevent an adverse costs order. • Because in 70%+ of cases it results in settlement, even between unwilling parties. • Because the parties can agree solutions which a court could never impose.
So where do I find a good mediator? •Your own past experience. • Recommendations of colleagues. • See my website at www.chrismakin.co.uk, or the excellent Delia Venables site at www.venables.co.uk/adr.htm. • For more modest disputes, try www.nationalmediationhelpline.com. It is clear that I, like Lord Phillips and Lord Jackson, am an enthusiast for mediation, and the response of clients who have experienced it is also a valid test. Let me therefore quote from the evaluation form completed by a party at the end of one of my recent mediations: “All disputes should if possible be settled this way – Great Mediator!” q • Chris Makin has practised as a forensic accountant and expert witness for 21 years. He is one of only 23 chartered accountants so far to become accredited as an expert witness and forensic accountant – see www.icaew. com/forensicaccreditation/register. He is also a mediator accredited by the Chartered Arbitrators, and he performs expert determinations accredited by the Academy of Experts. For his mediation website, see www.chrismakin. co.uk.
Flawless or clueless
– why are concrete floors so problematic? by Professor Peter Robery, Technical Director, Halcrow Group Ltd WE ALL USE them: we walk over them and rely on them for a safe, flat and clean surface. We have special treatments for hard floors, sterile hospital environments or anti-static floors. The range of possibilities for concrete floors is almost endless. Yet the experience of construction professionals and end users after laying floors will range from ‘excellent’ to ‘disaster’. It is no surprise that a large number of our enquiries relate to unplanned defects in floors. The problems that we see are often born of a failure to appreciate the intrinsic properties of concrete. While at 28 days concrete has reached its design cube strength, that is not the end of the matter. Concrete will continue to shrink and curl for many months, undergoing creep, structural and thermal movements over its life. Proper provision for movement is needed if problems are to be avoided. Many of our dispute cases involve industrial ground floors, such as storage or distribution warehouses. Over the past 20 years, the industry has invested in specialist equipment to lay ‘large area’ floors. Instead of laying floors in long strips, taking many weeks, laser-controlled placing machines are used, allowing a 2500m2 bay of concrete to be laid in a day. The laser levelling minimises problems of flatness and level. Curling and cracking can happen if the floor is loaded too early in its life. I have seen many examples of flat and uncracked concrete floors, but these have been left to cure for several months before any load is applied. Installing racking or storing pallets on a surface that is only 28-days old can cause restraint and cracking. This risk is often taken to speed up the
construction programme. We also see problems with floor foundations, especially variation in the hardness of the ground and foundation layers on which the floor is built. Mismatch in the properties of materials applied to the floor also leads to failures. Rigid decorative finishes such as ceramic or terrazzo tiles bonded onto the concrete with adhesive and with insufficient soft joints to allow for movement, can split and detach the tiles. Retained moisture in the concrete is another common problem. Tight project programmes mean insufficient time is allowed for the concrete to dry. Bonding sheet materials onto slightly damp concrete, such as linoleum, can result in large blisters. Blistering can be avoided by allowing the concrete to dry. Protecting the concrete surface by using polythene sheeting will stop it from drying! If the concrete is too damp, which is simple to assess using standard techniques, the surface can be sealed with a suitable primer to prevent blistering. What is my message? Get to know concrete and its basic properties and so specify the materials, construction method and programme with confidence. If we get the floor wrong, there will be a lot of people walking over it and complaining! So don’t drive down costs to a level where we create problems. q • Peter Robery is visiting Professor at the University of Leeds and Queens University Belfast – for more information contact him at firstname.lastname@example.org.
Dispute resolution for the residential occupier by Colin Featherstone BSc (Hons) Dip Arb FRICS FCIOB FCIArb MAE QDR HOUSEHOLDERS OR RESIDENTIAL Occupiers, as they are referred to under the Housing Grants Construction and Regeneration Act 1996, represent a large sector of the building industry. The contracts which they enter into can give rise to complex disputes which are frequently compounded by poor documentation. Whether written, verbal, or a combination of the two, the contract will determine how a dispute is to be managed or resolved. In this article I have briefly considered the role of the professional and expert and the benefits of appointing a technically qualified expert, adjudicator or expert determiner.
adjudicator’s decision is binding unless referred and finally decided by a court or arbitrator. The Royal Institution of Chartered Surveyors provides an adjudication panel for the JCT’s ‘Homeowner’ Contract and trains adjudicators for the FMB’s panel. Both offer capped rate adjudications, which provide for the parties to jointly agree to enter into adjudication. The adjudicator is obliged to reach a decision within 21 days and his decision is binding unless the case is referred and finally decided by a court. Expert determination is similar to adjudication in so far as an impartial third party enters into a contract with the disputing parties to resolve the dispute. Like adjudication expert determination is expedient, cost effective and confidential. Unlike adjudication, the expert’s decision is binding and there is no provision for a final decision on the determined issues by a court or arbitrator.
Unrepresented lay-parties may not understand the legal obligations they face and in these circumstances a dispute can quickly become extremely personal. Financial risk and the need for confidentiality may also be significant factors. By involving an expert at the outset of a project or onset of a dispute the necessity for formal proceedings may be averted or, failing settlement by negotiation, a robust case may be prepared. If the parties are unable to resolve their differences then Alternative Dispute Resolution (ADR) including early neutral evaluation, adjudication, expert determination, conciliation, mediation or arbitration may be preferred to litigation. If the parties have used a standard form of contract, such as The Joint Contract Tribunal (JCT) ‘Minor Works’ or ‘Intermediate’ Forms, then this will contain a provision for dispute resolution, usually adjudication. There are also contracts intended specifically for residential occupiers, for instance The JCT ‘Homeowner’ contract, while the Federation of Master Builders offers its own consumer adjudication scheme. The HGCRA and the Scheme for Construction Contracts (England and Wales) 1998 provide the definitions of what constitutes construction work, the required provisions to be incorporated into contracts and the default provisions. Residential occupiers are afforded additional protection in law and this is reflected in Section 106 (1) of the HGCRA which states ‘This part does not apply – (a) to a construction contract with a residential occupier’. This does not exclude a residential occupier from entering into a standard form of contract with a building contractor of his own free will, however the residential occupier may still be exempted by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 if the procedures in Part II of the HGCRA have not been properly explained prior to entering into the contract – Picardi v Mr & Mrs Cuniberti 2002. The position may be different if the residential occupier has received professional advice or insisted on the inclusion of the adjudication clause. Conversely, no such protection is afforded to developers who intend to reside in part of a building which is being converted or renovated for commercial gain. Currently Section 107 of the HGCRA requires that the contract must be in writing and following a number of cases subsequent to RJT Consulting Engineers Ltd v DM Engineering TCC 2001 & CA 2002, the courts have held that all the contract terms must be in writing, which excludes oral or incomplete contracts from being adjudicated. However, this situation is about to be revisited by virtue of Paragraph 139 of Part 8 of The Local Democracy, Economic Development and Construction Act 2009 (The Construction Act) which repeals s107 and will supercede HGCRA once the revised Scheme has been approved by Parliament. Adjudication pursuant to the HGCRA or Scheme requires a decision to be reached within 28 days, or as may be extended by the parties. The
Tribunal appointed experts An adjudicator or expert determiner in a residential occupier dispute may struggle to understand a party’s case because of the lack of a coherent Statement of Case. This can eat into the available time while he tries to establish the issues. The tribunal may call a meeting to assist in clarifying or narrowing the issues and has powers to appoint an expert to assess a technical aspect of the case or seek legal advice on a point of law providing the tribunal notifies the parties of its intentions. In summary a dispute between a residential occupier and building contractor can be extremely complex. By referring the dispute to a technically qualified tribunal rather than the court, the parties can benefit from a confidential, expedient and cost effective resolution. q
The ‘expert’ Expert Witness in construction DESPITE THE MYRIAD of negative headlines surrounding the construction industry in recent months, the sector continues to provide a huge range of work for solicitors who are delivering advice on a wide spectrum of property issues everyday. However, when things start to go wrong for the client there is very often a need for specialist assistance in understanding and dealing with construction related problems or disputes. Very often this is where the help of an Expert Witness with a thorough background in construction can really help. For example, if the issues concern alleged defects in building works, the value of construction works carried out, payment for those works, alleged shortcomings in the administration of the construction contract or the alleged negligence of one or more of the construction professionals, an Expert Witness can help. In addition to the normal legal procedures available to a solicitor to resolve any issues there are well established alternative dispute resolution procedures that are regularly used in the industry. These include arbitration, mediation, expert determination and, in particular, adjudication which was established by statute exclusively for construction. Experts assist solicitors by using their technical knowledge to give an opinion or further evidence in connection with the initial advice to their clients in order to know whether or not there is a case to pursue, the strengths and weaknesses of that case, any difficulties with the case, or to provide the basis of a defence and/or counterclaim. The selection of an appropriate expert is very important. The expert must have the relevant experience in relation to the issues in dispute and must have a full understanding of the role of an expert including providing an impartial opinion, experience of writing reports that explain technical matters clearly and giving oral evidence at a trial or hearing. One firm of solicitors, Shakespeare Putsman, has taken an interesting approach to this problem by having a specialist team of inhouse quantity surveyors to support their construction lawyers. Whilst the QS team is a resource which is constantly available to the lawyers across the firm, none of the team can be instructed to provide independent expert opinion where the firm are representing a party in litigation or arbitration – so other firms of solicitors that instruct the QS team automatically conflict out the firm for working for their clients. This means that the QS team has gained first hand detailed experience of what solicitors require and how to assist them. At the same time, the solicitors have found that the QS team have in-depth knowledge of the construction process from inception to completion of a project which is very useful to them in avoiding and resolving disputes. The primary expert at Shakespeare Putsman is Chartered Quantity Surveyor Keith Blizzard, who is also a partner at the firm. Keith is also a Panel Adjudicator, Accredited Mediator and Visiting Lecturer in Construction Law at a number of universities, and also became the first non lawyer QS to be approved by the SRA to be a partner in a law firm earlier this year. The team’s construction project experience includes residential accommodation, multi-storey offices, healthcare and public/ government buildings, education and laboratories, commercial and industrial developments, defence and engineering installations, and petrol retail and rail projects. With their extensive pre- and post-contract experience on building projects and their detailed knowledge of a wide range of main and sub-contract construction contract conditions, the QS team brings a
great deal of experience to providing independent expert opinion on a wide range of construction related issues relating to building defects, valuation and payment, contract administration or professional negligence by one or more of the construction professionals. The team has single and single-joint expert witness experience in construction and criminal disputes and Keith has given evidence in court. The team also has experience of providing expert opinion for the Treasury Solicitor in forensic investigations. The combination of Keith’s experience as adjudicator, arbitrator and mediator, together with the technical and legal expertise of the teams enable them to provide comprehensive advice appropriate to any construction dispute and its particular form of resolution. q
Working with the grain THE BRITISH WOODWORKING Federation has seen an unprecedented increase in the number of requests it has received for site visits, inspection reports and expert witness services over the past two years. Its fee income from the technical consultancy service trebled in 2008 compared with 2007, and almost trebled again in 2009. As the leading representative organisation for the joinery and woodworking in industry in the UK, the BWF is well placed to offer expert advice and opinion on the quality of manufacture and installation of joinery products. There are few members of the Federation who do not take advantage of the technical advice helpline, even if only for a second opinion, and the BWF’s technical team represents the industry on almost every British and European standards committee relating to joinery manufacture. And increasingly, the BWF is contacted by those who experience problems with joinery products and who want an expert view to back them up in a dispute. Chief Executive Richard Lambert has an explanation for the increase in disputes: “I think it’s a sign of the times. Money’s tight for everyone, whether they’re private individuals, contractors or developers, and if something isn’t right, they’re prepared to argue the toss. And by the same token, joinery manufacturers are less willing to concede errors if they don’t think they’ve made them, if to do so will cost them.” The range of disputes brought to the BWF covers the whole range of joinery products. In the past year, it has dealt with problems with shrinkage of fire doors after installation, the design and manufacture of a bespoke staircase, the installation of a kitchen, the design and manufacture of window and the installation of wood flooring and skirting. The BWF has always taken an informal role in resolving disputes between its members and dissatisfied customers. As Lambert says, “Unhappy clients are bad for business. Our members are usually willing to work with a customer to sort out a genuine problem. The public trust trade bodies as having the reputation of the industry at heart, so we can act as an honest broker to get a dialogue going. There have been times when we’ve had to point out to the member that they have got something wrong, but equally, we will back them up if they’re in the right, and explain to the client why that is.” The technical consultancy service is a more formal undertaking. Whenever the approach is made, the BWF is always aware that the issue may reach full legal proceedings, and the report may be used as expert evidence. Consequently, it is at pains to stress the independent nature of the service. Although it is a BWF service, the inspection, report and expert witness is provided through independent consultants, sub-contracted by the Federation, all of whom have extensive senior experience in the industry. While the Federation arranges the service, and provides a quality check on the final report, the report is that of the consultant. The BWF does not influence the conclusions and will not comment on the detail. Most joinery manufacturers are very small businesses, and a serious dispute can have potentially devastating consequences. When a dispute has gone to court, having the
reassurance of a supportive report can make all the difference. Richard Lambert recalls one recent case: “The customer was determined to press for compensation for the entire project. The report found that there was some fault in the manufacture, but not to the extent claimed. Our support, and advice on court tactics, meant that our client accepted their responsibility to put right what was wrong, but avoided a much heavier compensation claim or being landed with the full costs of the case.” By the same token, the report can strengthen the hand of the customer if the argument is on their side. Says Lambert, “Joinery manufacture is a technical business, and most manufacturers pride themselves on their expertise. They can take being called into question very personally, particularly by someone they think has a lesser understanding. But we have several instances where a manufacturer has acknowledged the conclusion of the expert and backed down.” Richard Lambert is too used to answering questions about the independence of the technical consultancy to be surprised by them any longer. “For an outsider, it’s natural to assume that, as a membership body, we will side with our member. But this service only works if the conclusions are independent. On the other hand, it has caused us some difficulties with members who feel we ought to be backing them up. In a charged situation, some will see it as the body that should support them turning against them. It’s actually lost us members: one company had applied to join the BWF having heard about the service when in the middle of a dispute. But when the report came down against them, they told us where we could stick our membership!” He is not deterred by this. “The BWF prides itself on the quality and the impartiality of its technical consultancy, as much as it prides itself on the quality of the support it gives to its members across the range of their businesses. To be credible as a membership organisation, you have to be credible in they eyes of your peers as much as your own industry. The successes of our technical consultancy service show how we’ve built that credibility.” q • To find out more about the BWF’s Technical Consultancy service, which includes site inspections, product reports and expert witness, visit www. bwf.org.uk/about/total-support-services or call 0844 209 2610.
Digital forensics –
the building blocks of a strong case DIGITAL FORENSICS IS the application of scientific methodology to computer media to establish factual information or provide expert opinion for legal proceedings. The terms ‘computer forensics’ and ‘digital forensics’ can be used interchangeably. There are five main phases to computer forensics: • The imaging or acquisition of the computer media – collecting the • data • Examining the data – generally using specialist forensic software • Analysis of the data • Compiling a report, statement or letter of findings • Providing expert witness testimony. Examples of media which can be examined that may contain electronic evidence include hard disk drives; USB external hard disk drives; mobile phones; PDAs; MP3 players; thumb drives (also known as flash drives, USB stick or sticks); floppy disks; ZIP disks; tapes; micro drives; optical media such as compact disks (CDs) and Digital Versatile Disks (DVD) and camera cards. As a matter of good practice, computer forensics experts should adhere
to the Association of Chief Police Officers’ Good Practice Guide for Computer Based Electronic Evidence. The main principles of which are: • No action taken by law enforcement agencies or their agents • should change data held on a computer or storage media which may • subsequently be relied upon in court. • In circumstances where a person finds it necessary to access original • data held on a computer or on storage media, that person must be • competent to do so and be able to give evidence explaining the • relevance and the implications of their actions. • An audit trail or other record of all processes applied to computer-based • electronic evidence should be created and preserved. An independent • third party should be able to examine those processes and achieve the • same result. • The person in charge of the investigation (the case officer) has overall • responsibility for ensuring that the law and these principles are • adhered to. q
Revealed – your mobile’s secrets by D A Sykes BSc CEng CITP FAE MEWI, Senior Consultant Chartered Engineer WHEN FOOTBALLER’S WIVES suspect foul play or when Formula 1 drivers hit the headlines for the wrong reasons, instructing solicitors turn to IT Group and we in turn switch on our forensic mobile phone analysis equipment and apply many years of experience and expertise to delve through the deleted content and reconstruct the mobile phone’s history for as far back as we can. Amazingly, sometimes data can be reconstructed from years ago but usually it is the recently deleted SMS that is the most sought after. Mobile phone forensic analysis is quite a new technology but is very high profile at the moment. It wasn’t many years ago that I thought it must be possible to undelete a text message on a SIM card and I set about working out how to do it. A rather crude electronic circuit and hours of second guessing the coding resulted in the recovery of my first deleted text. Soon a steady stream of enquiries led to a need to improve the equipment and early commercially available systems were evaluated. Now, only 6 years later, we have a plethora of different systems made necessary because of the ever changing face of mobile technology. With our latest equipment some mobiles such as the iPhone are easily interrogated and deleted material is usually recovered in abundance. With other mobile phones such as the Blackberry, it is much more difficult to interrogate the memory and recover data as easily. Mobile phones are much more than just a source of deleted mobile data. With the necessary permissions or Court Order, the call data records and billing records can be analysed. These are essential in piecing together the usage of the mobile and possibly assisting in its ‘attribution’. In many serious crime situations, mobile phones are routinely disposed of and replaced and SIM cards similarly can be swapped on a daily or weekly basis. If the phone is an unregistered pay-as-you-go model, it becomes increasingly difficult to attribute the mobile (the phone number) to a person with any degree of certainty. Furthermore, it is a commonly presented defence that mobile phones are shared/ borrowed or swapped between co-defendants. Analysing call data records and where possible linking these to data recovered from actual mobiles, it is possible to determine where a mobile was when it was used. If the attribution evidence is sufficiently robust, then this also places a suspect or defendant at or near these points too. In many serious crime investigations it is common for the perpetrators or co-conspirators to carry or use more than one mobile phone. The usual modus-operandi is to have a mobile upon which contacts and private data is held and which is then used for non-illegal purposes and to have a second or sometimes several further phones which are used to contact some or all of the people involved in a crime or series of crimes. The term usually used for these two distinct mobiles and their use is the ‘clean phone’ and the ‘dirty phone’. One key area for expert examination is to check whether the clean phone and dirty phone are located together (as would be expected if the initial hypothesis is correct). When mobiles are on different networks, it can be the case that the positioning accuracy of the data contained in the call data records is insufficient to be certain that the mobiles are together. In such cases the analysis of over-lapping calls and calls between phones also assists in clarifying what probably happened. One often overlooked aspect of the analysis of mobile phones is that in a typical large Crown Court case, there may be 30 or more phones involved. The analysis of these can lead to thousands of pages of evidence. As both the prosecution and the defence
prepare to present the data and conclusions to be drawn from this vast array of information, it is inevitable that the result is different depending upon which side is setting out their case. This leaves Counsel on both sides with the task of presenting their side’s case and testing the evidence of the other side through cross examination. While this is taking place of course, the jury look on and listen and try to form their own views. The danger is that with so much highly technical data being dissected, viewed and presented in often diametrically opposed formats, the jury will simply not understand the basis of the differing views. If the judge becomes detached from the evidence too, the whole technical aspect of these high profile trials can be lost and all the investment of time, expertise and funding can be wasted. The future for mobile phone forensics lies as much in the ground-breaking technology as it does in the features and functions of the software that enable the results to be presented in plain English and in easily understood charts and diagrams. q • 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 due diligence, business process review, QA audit, Insurance assessment, forensic IT/ telecoms/ Electrical systems examination and expert services. www.itgroup-uk.com
Unearthing cyber secrets – computer forensics COMPUTER FORENSICS IS a division of overall forensic science specifically involved with exploring evidence hidden in various digital computing devices. This particular field of study unearths hidden data from digital storage devices such as hard disks, USB external hard disk drives, floppy disks, ZIP disks, tapes, compact discs, DVDs and mobile phones. Generally, any information explaining a
sequence of events that can be retrieved from a digital computing device has the potential to be used as court evidence. Currently, technology has been widely exploited in order to commit serious crimes including ID thefts, phishing and other online fraud. In order to keep a step ahead of these criminals, detective and investigative agencies have continually updated their knowledge with the expertise to fight such crimes. Firewall forensics, database forensics and network and mobile device forensics are some of the many fields that have emerged out of computer forensics in the last decade. Finding a well-trained or certified computer forensics expert is therefore critical to ensure that evidence holds up in court. q
Speed cameras ‘freak’ flaw leaves innocent motorists wrongly fined
THOUSANDS OF DRIVERS throughout the UK could have been wrongly fined for speeding due to a freak flaw discovered in speed cameras, it has ben revealed. Vibration from slow-moving and even stationary lorries has caused static roadside Gatso cameras to flash innocent motorists stuck in traffic jams – and record them at speeds of up to 80mph. Now motoring groups fear that phantom flashes could affect most of the 6,000 speed cameras around Britain. What’s more, flaws in hand-held laser gun speed detectors have raised serious doubts about their accuracy too – including one which recorded a wall travelling at 44mph! Experts are now urging drivers who feel that they have been wrongly accused of speeding to demand photographic evidence of the offence. Speed camera expert Dr Michael Clark said, “There have been a number of incidents where someone successfully contested a case by insisting on seeing the pictures.” q