FORENSICS INDUSTRY E-MAGAZINE
For TOMORROW’s Genomic Technology.... TODAY Since it first entered the criminal legal practice, DNA has become an indispensable tool in fighting crime, allowing both unambiguous identification of the criminal by traces of biological material left at the crime scene, as well as acquitting innocent suspects. Understanding how DNA evidence is obtained and evaluated allows the defence to find pitfalls in the evidence and in data interpretation.
was obtained, whether it can be interpreted in a way different form that of the prosecution expert, explain what is the significance and the probative value of the evidence and how it can be successfully challenged in court in order to minimize its impact or even dismiss it completely. We will also provide Expert Witness testimony in court should this be required”
A match between the defendant and a biological sample recovered from the crime scene does not and should not automatically mean conviction, even if it is a complete match. DNA is a means of identification and, as other means of identification, it is prone to errors, uncertainties and conflicting interpretations.
The company has published extensively in legal press on the use of DNA in legal practice including the book “Dealing with DNA evidence: A Legal Guide”, which, as the first of its kind, treats DNA evidence within the framework of English Law.
As a trusted and ethical provider of genetic testing services within the UK and Europe, Medical Genomics has been at the front line of genetic research, as founder of the company Andrei Semikhodskii explained in a recent interview:
Medical Genomics provides expert witness services not only in England but in other countries, like India, Libya, Russia and others. As DNA experts for the defense we took pat in the most notorious murder case in India - Noida double murder case which became the subject of the recent book "Aarushi" and the film "Talvar"
“At Medical Genomics we will guide you through DNA evidence in your particular case, help you to understand how DNA evidence
2013
Boasting vast experience in providing DNA Expert Witness Services for the defence, the company expertise covers the whole range of DNA evidence: • • • • •
STR genotyping: NGM SElect, SGM, SGM+, Y-STR, LCN testing Analysis of mixed DNA profiles mtDNA Analysis RFLP genotyping; SLP & MLP
• DNA data interpretation The company’s most notable resent cases include: R v Hart (2015) Snarsbrook Crown Court (unreported) – sexual assault, GBH
• R v Baffoe (2014) Croydon Crown Court (unreported) – firearms offenses, drug offenses
• R v Festus (2014) Wood Green Crown Court (unreported) – sexual assault • R v Chambers (2013) Woolwich Crown Court (unreported) - burglary • R v Helal (2013) Wood Green Crown Court (unreported) – GBH • R v Wozniak (2012) Exeter Crown Court (unreported) – firearms offenses • R v Santos (2012) Blackfriars Crown Court (unreported) – rape of a child • R v Jeyarejan (2012) Harrow Crown Court (unreported) - burglary • R v Wilson (2012) Exeter Crown Court (unreported) – armed burglary • R v Rafiq (2012) Cardiff Crown Court (unreported) - murder • R v Folley (2011&2012) Croydon Crown Court (unreported) - murder • R v Smith (2011) Reading Crown Court (unreported) - sexual activity with a child
• R v Roberts (2010) Southwark Crown Court (unreported) – triple rape • irregularities
With genetic testing technology constantly evolving, the company strives to provide its’ clients with the best available service by testing each DNA sample twice; using state of the art DNA testing equipment to ensure unparalleled accuracy of results “The turnaround of 10-12 working days guarantees that our clients do not need to wait long for results of a paternity test or any other DNA test they ordered. Added to this our competitive prices make the tests affordable to anyone who requires them.” “At Medical Genomics we acknowledge the unalienable right of every individual to privacy and confidentiality and see it our duty to use genetic information ethically and respectfully,” Andrei added, “We remain committed to stand by this pledge and to abide by national and international legislation with regard to genetic and medical research and information. We feel responsible to prevent misuse of genetic and other information obtained in the course of our services.” If you would like to get expert opinion on DNA evidence in your case or obtain a quotation please contact: MEDICAL GENONOMICS Tel: 0844 567 1071 Email: dnatesting@medicalgenomics.co.uk Website: www.medicalgenomics.co.uk
Ethos
Forensics Forensic Science: Reliability or Liability? Amidst revelations of serious forensic errors made over more than two decades by the FBI, tales of wrongful conviction due to faulty forensic evidence, and the continued fallout from closure of the UK Forensic Science Service, what is the current quality and reliability of forensic science? Sue Carney, Consultant Forensic Scientist, Ethos Forensics In April 2015, the FBI made a formal admission of errors in its forensic science. 26 out of the 28 examiners at its microscopic hair comparison unit had overstated the significance of evidence in favour of the prosecution over a period of more than 20 years. This revelation followed criticism of flawed bite mark comparison evidence, a heated discussion that continues amongst the US forensic community, and subsequent investigation. The National Association of Criminal Defence Lawyers and the Innocence Project are currently assisting the US government in the largest post-conviction review of forensic evidence; investigation of thousands of cases. Of those cases so far reviewed, 32 of the defendants were sentenced to death of which, 14 have been executed or died in prison.
The National Academy of Sciences 2009 Report, Strengthening Forensic Science In The United States: A Path Forward, is particularly critical of those evidence types, such as bite marks analysis, comprising subjective comparisons. Of such evidence types, it states that there is continuing dispute over their value and scientific validity. The report also highlights that in such experience-based methods there exists the potential for bias, particularly in the absence of blind comparisons. The report, amounting to more that 300 pages, is comprehensive in its recommendations. Whilst it could be argued these universally relate to the standards and quality requirements of forensic science the world over, a simple comparison of the US with the UK is not straightforward. The US is a vast country comprising a variety of jurisdictions at both state and federal level. Uniting the practices of this collection of agencies and implementing accreditation and best practice is an unenviable task.
In assessing the state of UK forensic science one must view both its past and possible future. The UK has a long history of forensic innovation. It was at the University of Leicester in the 1980s that Sir Alec Jeffreys developed DNA fingerprinting, the precursor of the DNA profiling techniques used today by forensic agencies worldwide. The former Forensic Science Service had a reputation as the UK’s foremost forensic research body, establishing the guidelines for many forensic evidence types including landmark publications ranging from the persistence of biological evidence in sexual assaults to the implementation of frameworks for the interpretation of forensic evidence. The FSS closed in 2012 under pressure from the UK government in its deregulation of the forensic market. The ripples are still being felt across the forensic community. The new competitive forensic market brought with it a culture of faster and cheaper forensic science. Today’s main UK forensic providers (LGC, Cellmark and Key Forensic Services) are under increasing pressure to deliver more for less, as are their customers, the 43 police forces of England and Wales, whose forensic budgets have been slashed. The effects on forensic science are palpable. Forensic science is a painstaking process where accuracy and attention to detail are critical. Yet reporting scientists find themselves under increasing time pressures diametrically opposed to quality. Rushing any forensic analysis risks evidence being missed.
What remains for the smaller consultancies operating within the UK forensic market? Unlike many of the US forensic laboratories, the big 3 UK forensic providers hold accreditation to international quality standards (ISO 17025), as do some of the smaller organisations providing forensic services to the defence. Accreditation ensures that quality of work is comparable to that of other accredited organisations offering the same products and services. It is an assurance of capability and competence. In short, it demonstrates excellence. However, the accreditation process is currently cost-prohibitive for independent consultants working as sole traders. Further, they lack the infrastructure required for objective selfassessment.
In addition to the inevitable loss of expertise from UK forensic science, as many time-served scientists chose retirement or alternative careers, this new culture also brought about reluctance on behalf of police forces to use particular evidence types due to perceived cost. Fibre comparison is a case in point. The big three forensic providers deliver relatively few fibre comparison services directly, since customers are loath to authorise such time-consuming analyses. Yet time and again, fibres have provided crucial evidence in casework. Notable examples include the murders of Holly Wells and Jessica Chapman and the eventual prosecution of Norris and Dobson for the murder of Stephen Lawrence. Despite continued campaigns for change in UK forensic science, the announcement on 24 July that Contact Traces, possibly the only specialist forensic fibre consultancy in the UK, was to withdraw from the forensic market was a bitter blow and is symptomatic of the current state of UK forensic science.
The closure of the Council for the Registration of Forensic Practitioners in 2009 meant that there were no longer clear criteria, other than accreditation status, upon which the criminal justice system could assess the credentials of an expert witness. Within the next five years, it is thought that accreditation will be a legal requirement for all forensic practitioners to operate within the UK criminal justice system. Whilst this is to be commended, there is, as yet, no clear framework under which independent consultants can demonstrate competence. The Forensic and Policing Services Association, in conjunction with the Chartered Society of Forensic Sciences are exploring the options for small businesses and consultants via their quality standards working group. It is hoped that the Society, as the industry’s professional body, will be able to fulfil some of the independent monitoring functions on behalf of independent consultants.
The NAS report recommended that the control and operation of US forensic provision be removed from police forces, in order that forensic experts maintain true impartiality. The new cost-focused UK forensic market has prompted increased numbers of UK police forces to form their own in-house forensic services. Many of these have not yet achieved accreditation, such that they too are not yet able to evidence quality and capability. This increase in police in-house forensic activity has given rise to a fragmented approach in some cases. Rather than a set of exhibits being submitted for examination by the forensic science provider, some forces carry out their own examination and submit swabbed or cut out stains to an FSP for DNA profiling, accompanied by little contextual information. The FSP and police experts each compose their own evidential statement in the case and there is a risk that on some occasions, issues of how the tested biological material came to be deposited on the exhibit may not be addressed in either statement. Furthermore, the mutual trust built up over years of collaboration between forensic science providers and police forensic submissions units in jointly agreeing the most appropriate forensic strategy for the case may suffer. It seems that decisions are now made based on perceived cost rather than forensic potential and the true needs of an investigation. If cost and time are the main opponents to quality, can we be sure that UK forensic science is protected from such serious errors as those admitted by the FBI? Whilst comprehensive checking procedures are in place to minimise error within UK forensic laboratories, it is the follow up of errors — what is learnt — that is most important. A significant portion of the requirements for ISO 17025 accreditation deal with managing the risk of error, but it must be accepted that any forensic service run by people can never be completely error free. People get tired, they have erratic moods, they have off days. They are not machines. This principle relates to all types of forensic science but is particularly pertinent to those more subjective forensic methods involving marks comparisons. Anyone who thinks that we are free of cognitive bias in forensic marks comparisons on this side of the Atlantic need only refer to the Scottish Fingerprint Inquiry to realise their misconception. The fact is, almost all forensic opinion contains some degree of subjectivity.
Even the most analytical test results have context within a case, and if we are to address the more complex, and arguably more useful, issues of how a questioned substance came to be present in or on an exhibit, then we may need to infer from previous casework experience in addition to published scientific data. The good news is that we are a few steps ahead of the US in our awareness of cognitive bias. It is an issue familiar to all forensic practitioners and awareness, whilst not prevention, means that we know the warning signs. Blind comparison is more routinely part of the peer review process and practitioners try not to be swayed by the nature of any particular case. Of course, this does not guarantee complete irradiation of bias and error, but the framework is in place. The most recently appointed (from November 2014) Forensic Science Regulator, with an overall responsibility for identifying and developing quality standards, is herself an experienced forensic scientist. This can only be an advantage, along with the recent agreement that the regulator will be given statutory powers to regulate the quality of forensic evidence. As a final point, it’s important to consider the UK’s status as a world leader in forensic science. Whilst this was considered to be true in the hey day of the FSS, it could now be argued that research is rarely conducive to profit and therefore, may not be the first priority of the existing forensic science providers. Having said that, a recent (April 2015) Chartered Society of Forensic Sciences conference showcased some innovative research being undertaken at many of the UK’s fine academic institutions and by dedicated forensic practitioners within the FSPs. Perhaps, whilst vocal forensic practitioners continue to wield some influence, all is not lost.
www.ethosforensics.com
Professor Ronald C. Denney Professor Ronald C. Denney deals particularly with cases involving alcohol, drugs, dangerous chemicals and interpretation of DNA. As a result, he has been consulted on alcohol and drug related rape, assault and murder cases as well as the more common drink-drive and drug-driving cases. Professor Denney is regularly consulted on the validity of alcohol analyses and the operation of breath testing instruments and has also carried out work for the Independent Police Complaints Commission on death in custody cases and has dealt with DNA results in sexual assault and child abuse cases. Discussing his experience and qualification as an Expert Witness in a recent interview, Professor Denney explained: “My experience and qualifications are essential to my standing as an Expert Witness. The combined experience with organic and analytical chemistry coupled with work in industry and studies on drugs plus years of university lecturing and research enable me to draw on an extensive range of knowledge and skills in dealing with forensic science cases.”
Most of Professor Denney's statements are accepted without the need for the Expert to attend court. With this in mind, Professor Denney attends court about twice a month on average. He is called by both defence and prosecution but his duty is, of course, to the court. Speaking of the importance of instructing an Expert Witness at the beginning of a legal case, opposed to asking for an opinion at a later stage of the proceedings, Professor Denney explained: “I often become annoyed at being instructed at the last minute in a case which may have been ongoing for months or even years. This makes it very difficult for me obtain all the information I require in order to obtain a clear picture of everything that has a occurred and is relevant to my assessment. Late instruction always mean working under duress and the possibility of being ambushed in court by data which had not previously been revealed to me.”
Consultant Forensic Scientist With vast experience and a highly respected presence in the legal sector, Professor Ronald C. Denney is • • • • •
A Fellow of the Royal Society of Chemistry, A Fellow of the Royal Society of Medicine, A Fellow of the Chartered Society of Forensic Scientists, A member of the International Council for Alcohol, Drugs and Traffic Safety A member of the International Association of Forensic Toxicologists.
For further information, please contact Professor Ronald C. Denney on 01732 457 878, email enquiries to ronalddenney@btinternet.com
David Berry
(PhD FRC Path MFSSoc MRSC) Independent Toxicology Consultant & Expert Witness
With 45 years as a practising analytical toxicologist and an additional 30 years providing independent toxicology consultancy, David Berry holds considerable experience at giving evidence in Magistrates & Crown Courts; Military Court Marshalls, Employment and sporting tribunals. A specialist in toxicology with particular emphasis on prescribed and illicit Drugs and Alcohol, David Berry has been involved in a range of criminal and civil investigations including driving and alcohol/ drug cases, child custody where drugs and poisons are involved; drug facilitated crime, workplace drug testing, medical reviews, interpretation of forensic toxicological analysis and forensic pathology reports. David utilises his experience and expertise to compile insurance reports, personal injury claims and cases of medical negligence and has acted as an expert witness in Coroners, Magistrates, County and Crown Courts. A qualiďŹ ed analytical chemist, David Berry was employed for 45 years in a specialist NHS toxicology laboratory as a Senior Analyst, working on developing methods for drug analysis and providing services for the analysis of drugs in biological specimens. David began offering his services to support a range of Clinical situations with his main applications of involvement being in Clinical and Forensic drug testing. Inevitably, he became involved with cases that had legal connotations and was drawn into writing legal reports and opinions related to such cases.
David Berry's mainly advises and instructs in the UK but global instruction are considered as he looks to open some new and exciting doors in the future.
Following these experiences, David started to offer these services to the legal profession independently. Today, David Berry specialises in writing detailed toxicological reports and interpretation for criminal and civil (usually insurance) investigations where drugs and poisons and/or alcohol are involved. The toxicology services that David Berry provides have advanced over time. He has become more involved with medical/toxicology reviews in workplace drug testing and also provides expert witness reports for hair testing analysis, mainly for the family courts. Providing valuable assistance to situations where toxicology is potentially involved, David has also undertaken a couple of security related jobs dealing, mainly with the assessments of toxicological risks.
To instruct David directly please contact him on the details below To read his full C.V. Click Here T:01342 324 955 / M:07833 556 460 E:dave_b2@mail.com
An interview with Mr. Richard Scott-Watson
RSW Medicolegal Ltd Firstly, what is the importance of instructing an Expert Witness directly, as opposed to using an agency/intermediary? “To begin with the solicitor gets to choose the expert. Some solicitors ask agencies only for the shortest waiting list but many solicitors prefer the direct contact once they have tried it.” “Some solicitors give the impression that agencies indicate that they can only get the expert through the agency and are surprised that direct instructions can be given. It is never the case that an agency owns an expert and direct instructions can always be sent.” What holding do these intermediate agencies have over fees? “Agencies normally take around 50% or more of the fee the expert would normally charge. However, unless the fee is regulated, the solicitor ends up being charged considerably more than the expert would charge direct in every case that they have (accidentally) revealed their charges – usually another 10 – 30%. The value to the expert is next to nothing, in fact frequently agencies obstruct the smooth running of a case. Of course, the practicality is that the expert accepts end of case payment with direct instruction, but for nearly twice the fee for the same work, that seems reasonable.” “It is no coincidence that what used to be independent agencies have largely been bought out by big companies – they make a lot of money for the work they do.” Whilst using an agency, do clients always have access to the correct expert. One whom has experience in their particular niche? “No. The agencies rarely know or use the expert’s particular areas of specialisation. Some do not even get the speciality correct, and in the last year I have been sent a hernia and a burn, neither of which are Orthopaedic cases.” “The criteria agencies use are usually things like speed of return of report but agencies often collect such data incorrectly and so fail to instruct the most efficient experts. I recently had an agency tell me that 25% of my cases were on time. In fact it was over 95% but their figures were skewed by them failing to correctly record when they were sent reports – resulting in the reports looking late and them asking for repeated duplicates – in one case seven times. The agencies also are first point of contact for many claimants – which some find a very tiresome process.”
In your experience, what benefits does a client receive from instructing an expert directly? In terms of cost, service and ease of liaising with the expert... “In terms of cost, they get what they are paying for as opposed to the agency taking half of it or more. If there is a problem with a late set of documents or adjustment to a report this can be done quickly but through an agency, three weeks for every alteration is common. Some agencies hold reports for weeks before sending them on – the record I have seen is six months. Needless to say the expert was blamed for the delay when it was entirely the fault of the agency.” “I have also had instructions to agencies being mis-interpreted, so one case recently where the agency had failed to send to correct notes, even though they had them, resulted in a significant delay in sending the report. Eventually the solicitor had to send the notes direct after I had been threatened with nonpayment for the report due to delays: Delays entirely caused by the agency that passed on the threat. The Solicitor was very happy once the problem was sorted out direct, which probably would never have been possible if the agency had continued to be in the middle.” In what cases, can the use of an agency be a useful course of action, if any? “Agencies can be useful to experts as they provide volume, but they need to because of the very low fees they pay. They also provide diary systems (cost, but no value) and electronic transmission of records (cost, but no value).” Are there any legal developments or incoming Government legislative changes that will affect the use of agencies and/or experts in the future? “I think MedCo really missed a trick in stopping fraud. The initial GP reports are almost valueless and entirely subjective as they do not insist on the contemporaneous notes, which are vital in every case. Equally, with agencies taking most of the fee in these cases, the time taken to complete a case is about a third of what is required to do the job properly. They actually encourage fraud, as all the claimant has to do is either say they are already recovered (so nothing to find and contradict) or that the symptoms were severe, but no longer are. This means that a high level of disability is recorded for part of the period prior to the report being written, which had by that time partially recovered. In almost every case where I see the claimant later, the contemporaneous notes contradict all or most of any period of severe disability.” “As soon as MedCo came on the horizon agencies seem to pop up at every turn. At least one of these has gone bust already, owing tens of thousands of pounds. This is another problem for the experts. We have no idea how sound, financially, these agencies are. I currently have ten which are behind their contracted payment date for at least some of the reports – this is usually the first sign of trouble ahead with their finances and I have to assume that a significant amount of work done through them may never be paid. This does not happen when solicitors instruct direct, and this risk is taken out.” So what are the overall benefits: • • • •
Solicitors chose their expert, and over time build working relationships. Experts get paid correctly for their work, with reduced risk compared to working through agencies. Cases do not get delayed through there being a middle man and instructions pass directly from instructor to expert meaning that they are not then mis-iterpreted by a third party (who is normally not medically or legally qualified). In short it is a more efficient manner of conducting cases and all parties should have a more rewarding experience, including the claimant as the whole process is a more personal one.
For further information, please contact Mr. Scott-Watson's Secretary, Carol Couzens Tel/Fax: 01384 441 126 or email enquiries to carolcouzens@ymail.com
It gives us great pleasure to announce that Mr. A.J.M. Birnie has been selected A. J. M. Birnie F.R.C.S. Gains Recognition with Prestigious Expert Witness Award for Orthopaedics to receive the Expert Witness Award for Orthopaedics 2015, a completely independent Award Programme recognising professional excellence within the Forensics & Expert Witness arena. The Award Scheme was created in order to recognise those individuals who have made an outstanding contribution to their particular field. Forensic & Expert Witness E-Mag is always keen to bring attention to those who are providing a product or service that stands out from the crowd and deserves to be appreciated not only by its readers, but also by a wider audience. A member of the British Institute of Musculo-Skeletal Medicine (BIMM), a body that strives to find more effective ways of treating patients and runs courses to educate doctors in these improvements; Mr. A.J.M. Birnie has achieved an excellent reputation for compiling medico-legal reports and providing expert witness testimony on a variety of cases. Due to settlements and mediation, Mr. Birnie is not required to attend court more than about once a year, although he does have the knowledge, experience and highly respected reputation to act on behalf of the Prosecution, Defence either as a Single or Joint Expert. Key to securing this Award was the fact that Mr. Birnie is able to draw on the vast experience he has gained over the years, together with all the necessary academic qualifications to enable him to provide a highly professional, accurate service as an Expert Witness. Explaining ‘how his experience and various qualifications have enhanced his standing as an Expert Witness’, in a recent interview, Mr. Birnie commented: “The main benefit has been by reading and being able to quote various published papers on the subject, as well as personally practising healing. Unfortunately most reports that I see seem to suggest that the majority of doctors do neither.”
For Orthopaedics 2015 “The introduction of the Single-Joint Report several years ago and the government instruction to send most mild cases to general practitioners has resulted in appreciably fewer cases coming my way and far fewer cases going to court,” he explained. “I get a fair trickle of referrals of cases where the general practitioner’s opinion has been wide of the mark due to lack of knowledge of published papers on the subject. This makes me wonder how many such cases are settled on the basis of erroneous opinions.” When asked about ‘the importance of instructing an Expert Witness at the beginning of a legal case, opposed to asking for an opinion at a later stage of the proceedings?’ Mr. Birnie explained: “This delay can lead to a lack of early effective treatment being given to the claimant.” “Many of the referrals I receive are well over a year after the relevant accident. Mostly, this seems to be due to inexplicable delay on the part of the claimant’s solicitor. This is deplorable, because by this time, the injury may be well ingrained and difficult to treat, needing many more treatments than would have been the case a year earlier.” “As a result,” he continued; “the claimant may have lost his/her job or be in so much trouble that they are unable to return to it. It is well known that people who have been off work for over two years seldom go back to work.”
Whiplash Injuries: Mr. Birnie has taken a special interest in Whiplash Injuries for many years. In neck sprains following road traffic accidents (RTAs). it has been shown that there is a wide variety of small lesions throughout muscles, ligaments, joint capsules, cervical discs, bones, oesophagus, temporo-mandibular joints etc. Bony problems, if they occur, usually settle down over a few weeks. Similarly any damage to the oesophagus usually settles down.
However, cervical disc damage occasionally goes on to give long term problems. It has been found that about 2/3 of patients develop neck symptoms more than 12 hours after such an accident. As a result, many have left the A&E departments before such symptoms develop. A good number of the very mild injuries clear up in the first few weeks. Most of these leave no abnormality to be found on subsequent examination. A smaller number settle symptomatically within a couple of months but leave persisting abnormal physical findings such as unnoticed restricted neck movements, pain at the extremes of neck movements and tenderness on palpation. Unfortunately, in a significant minority of cases, the problems in muscles, ligaments and joint capsules seem to persist for very much longer producing restriction of movement, localised pain and tenderness, referred pain and sometimes paraesthesiae, numbness, coldness of a limb etc. The majority of spontaneous improvement takes place within the first three months. Very little spontaneous improvement appears to take place after six months. The result is that the symptoms present at three months are probably going to be present permanently unless something effective is done to change that state of affairs. However, in spite of what some consultants state in reports, there is no evidence that anyone who has symptoms lasting for more than a few months ever recovers spontaneously.
Improvement may be helped along by adequate physiotherapy in the early weeks. However, there is no real evidence that physiotherapy produces any improvement if given after the first few months. Many assume that those who return to work are trouble free. This is, of course, a false assumption as the majority of victims return to work when the symptoms reduce to a tolerable level or they find lighter employment. Most general practitioners either deal with such cases personally by pain relief or refer them on to physiotherapy departments. Very few are referred on to orthopaedic clinics. Very few whiplash victims require surgery. Many orthopaedic surgeons are not interested in patients that are not requiring surgery and refer any such “nonsurgical” patients to the physiotherapy department or straight back to the general practitioner. The result is that many orthopaedic surgeons have never built up any reasonable amount of experience on whiplash injuries and cannot really be called experts on the subject. In 1997, after years of research and development, Mr. Birnie finally evolved a very effective treatment for whiplash injuries using relatively high power use of ultrasound machines and manipulation as necessary. He has mentioned the outlines of this technique in every appropriate report since that time. “Unfortunately, whilst many members of the legal profession have seen my reports, practising therapists seldom do so. However I have supplied details of my technique to those physiotherapists who have asked for it. I hope to have it published soon.”
“I am not aware of any other more effective treatment,” Mr. A.J.M.Birnie. 1.
“Trigger points are a major cause of
Giving a short lecture on two of his own discoveries at a meeting in 2014 Mr. Birnie outlined:
Unfortunately defendants frequently seem to take a few months to respond to claimant’s solicitors to fund treatment and frequently refuse to do so. This may result in the claimant being unable to return to work and the defendants having to pay out bigger damages than if they had acted expeditiously. He wishes that there was some way in which these insurance executives and solicitors who produce unnecessary delays could be brought to book. Receiving the Expert Witness Award for Orthopaedics 2015 is a milestone for A.J.M. Birnie, not only forming the final piece of the jigsaw that confirms the company’s success but also acting as a seal of approval to prospective clients. On receiving this Award, Mr. Birnie went on to say:
1. “Trigger points are a major cause of back pain.” This is the same for neck troubles.
“It is an honour to accept this award and to have my years of research recognised. I hope that this leads on to these unfortunate claimants receiving expert treatment with the minimum of delay in the future.”
2. “An effective way of using ultrasound treatment machines”. He has found that the low power at which most physiotherapists use the machines is virtually useless. Indeed many physiotherapists feel that the machines are useless. Most papers on the use of the machines are based on this low power relatively useless technique. Defendants are reluctant to use the high powered technique because it has not been published. However, a few defendant insurance companies have asked their favourite physiotherapist to treat a claimant that way but this has always been unsuccessful as far as I am aware. This is due mainly to two things: 1. The vast majority of physiotherapists are not trained in manipulation, which is nearly always required in cases with injuries more than six months old. 2. Patients treated with ultrasound by physiotherapists with the low power technique almost never feel anything. Patients treated our way feel a variety of reactions but physiotherapists untrained in the technique do not know how to interpret these responses or how to react to them.
For further information, please contact Mr. A. J. M. Birnie on T:0191 373 4457 E:ajmb@ajmbirnie.com W: www.orthopaedicsurgeondurham.co.uk
Mr. Shahid Khan BM BCh, MA, FRCS, FRCS (Tr &, Orth) Consultant Orthopaedic and Spinal Surgeon
Ocean Physio & Rehab Clinic
Mr. Shahid Khan is a Consultant Orthopaedic and Spinal Surgeon and has completed a full orthopaedic and trauma training program and practices widely in all aspects of orthopaedic and trauma. This has given expert exposure to all orthopaedic injuries which he has treated for many years; Mr. Khan is therefore well positioned to advise on any orthopaedic trauma personal injury case. His specialist training has been in spinal surgery and today, Mr. Khan runs a dedicated spinal surgery practice in Exeter. Not only does this help him to provide expert opinions in personal injuries that involve spinal injury, it also positions Mr. Khan to offer expert opinions in negligence cases that involve spinal pathology, spinal surgery and spinal injury. A highly regarded expert witness, Mr. Khan also possesses a law degree which he has found invaluable in understanding the legal process and its relationship with the clinical world, thus aiding to optimise the specificity and quality of reports. Discussing his expert witness work, Mr. Khan explained: “Most cases are settled well before they reach court and I am only occasionally required to attend court. I provide many detailed joint reports each year which often removes the need for court attendance.” “When I do attend court it can be for claimant or defendant,” he continued. “More often on behalf of the claimant in personal injury cases, but more commonly on behalf of the defendant in negligence cases.” “In addition I attend ‘fitness to practice’ hearings for the General Medical Council, as I also provide ‘fitness to practice’ reports for the GMC. These are essentially specialist negligence reports,” he concluded.
The importance of instructing an expert witness at the beginning of an investigation/ legal case is that it can often save significant unnecessary costs. “Often at an early stage, an expert witness can identify a claim that is likely to prove unsuccessful, particularly in the clinical negligence setting,” Mr. Khan explained. “I am often asked to provide screening reports, initially on a pro bono basis, to root out such claims which ultimately may have no financial value.” As a case progresses, significant costs are often incurred, and the claimant’s hopes of a successful settlement are raised and, as Mr. Khan points out: “this could be avoided by early involvement of an expert.”
Case examples: In the personal injury setting, Mr. Khan’s cases vary throughout the full range of orthopaedic trauma. Recent legislation means that less and less of the cases that he sees are simple soft tissue “whiplash” injuries. As a specialist consultant spinal surgeon, a significant and increasing proportion of Mr. Khan’s workload relates to major spinal trauma and injury including spinal fractures and their sequelae including patients who have suffered severe neurological injury such as paralysis as a result. In the clinical negligence field, together with his work for the General Medical Council, Mr. Khan’s opinions relate only to the field of spinal injury and spinal surgery. Many cases on which he is instructed relate to the possible diagnosis of cauda equine syndrome and particularly to delays in diagnosis and management of this condition.
A significant proportion of Mr. Khan’s work as an expert witness relates to spinal fractures which are alleged to either have been “missed,” not diagnosed, or mistreated. Another, but smaller proportion of this work relates to lateral access surgery, a growing field in which only a few spinal surgeons in this country are suitably trained and experienced to provide such opinions.
Mr. Shahid Khan is a member of •The Royal College of Surgeons of England. •The British Association of Spinal Surgeons (BASS) •The Society of Lateral Access Surgeons (SOLAS) This is a group of Spinal Surgeons, most of whom are based in North America, who specialise in minimally invasive lateral access surgery to the lumbar spine.
For further information and for all medico legal enquiries, please call Mr. Shahid Khan at Ocean Physio & Rehab
T:01395 239 455 E:spinal@oceanphysio.com W:www.oceanphysio.com
Dr Andrew St. Clair Logan (MB B Ch B FRCA FFPMRCA)
Consultant in Pain Management & Expert Witness A Fellow of the Faculty of Pain Medicine of the Royal College of Anaesthetists (FFPMRCA) Dr. Andrew St. Clair Logan (BA Hons (Cantab) MBChB FRCA FFPMRCA) provides services as a Pain Management Consultant at the Countess of Chester NHS Trust, Nuffield Health Chester; the Grosvenor Hospital Chester and the Spire Hospital Warrington. Having recently diversified the services he provides to include acting as an Expert Witness in cases involving pain relating to injuries received in an accident, it comes as no surprise to learn that Dr. Logan is now also achieving an excellent reputation in this new arena. In a recent interview I asked Dr. Logan how he felt his practical experience and academic training enhanced his standing as an Expert Witness? “An Expert Witness must be credible and competent. As a Chartered Engineer I have been accepted into the Institution of Civil Engineers and the Chartered Institution of Highways and Transportation. This was however, only really the start of gaining experience. This has involved hands on practical design and management experience, and formal and informal learning. Each project has had its own particular demands, and developed that experience further. Sometimes necessary to work in new fields, or take on new responsibilities. Each project stretching that experience a bit further. While learning never actually stops, there is a transition from primarily being led and learning, to primarily leading and teaching. When a ‘critical mass; of experience is obtained, one becomes an expert in a field, but being an expert does not mean stopping learning or developing. In fact becoming an expert in your field can actually increase the need to maintain that status through learning and experience. There is also a difference between being an expert in one’s field, and being an expert witness. The skill sets are different, and an expert witness has to be apply a legally very thorough and forensic approach that is not necessarily second nature to a practitioner. What may seem obvious to a practitioner will not be to a barrister, and it can be deflating to see what one thinks as being cast iron being shredded by an incisive legal mind.
As a senior professional, it is sometimes necessary to find out what went wrong with a project. This is good experience for a prospective expert witness. Findings must be supported by facts, evidence needs to be carefully sifted and examined, and conclusions reached after deliberation. For anyone involved in the construction industry, contractual disputes provide good learning in analysing the contract, establishing the facts, and reaching an evidenced conclusion. If unfortunately those disputes proceed to adjudication or arbitration further good experience in legal processes and witness statements is obtained. As a trainer in highway design I have to be an expert in the subjects I teach. Writing training material and preparing courses has brought to my attention ideas and topics that as a practitioner I had perhaps not dealt with, or had a different view of. This has been very useful in expanding knowledge.”
A chartered Member of Institution of Civil Engineers and the Chartered Institution of Highways & Transportation, Dr. Logan’s experience as an Expert Witness has to date been primarily involved acting for the claimant in civil cases; with most of these being settled out of court: Dr. Logan added: “Having appeared in court acting as an Expert Witness for an arbitration case and given evidence at Public Inquiries, as well as having prepared evidence in chief, in addition to expert reports, I am fully conversant with the formalities expected should a case go to court. When acting as a Witness of Fact for construction disputes, I had the opportunity to develop some familiarity of the process, as well as being able to draw on my formal training and accreditation in Expert Law and Practice, Report Writing, and Witness Familiarisation.” Dr. Logan strongly believes in the importance of instructing an Expert Witness at the beginning of an investigation/legal case, as opposed to asking for an opinion at a later stage of the proceedings.
FOR FURTHER INFORMATION PLEASE CONTACT: Dr Andrew St. Clair Logan MB BChB FRCA FFPMRCA Nuffield Health The Grosvenor Hospital, Wrexham Road, Chester CH4 7QP Tel Mobile: 07791681278 Secretary Sharon: 07763783601 Fax: 01244 851 278 Email: andrew.munro@munro-consultants.co.uk
The cases outlined below are typical of those undertaken by Dr. Logan in his capacity as an Expert Witness: • “I appeared in an arbitration for the claimant concerning performance of a contract to construct an access road in difficult soil conditions. My report considered the difficulties of constructing the access road, but considered that given the purpose of the track for agricultural vehicles it was feasible. I do not recall the outcome, it was some years ago.” • “I provided two reports for the claimant on the matter of failed surface dressing. The dressing had in my opinion been applied at the wrong time of year and had failed as a result. The defendant argued that poor drainage was responsible, but I considered that this was not of significance – the wetting of the road due to heavy rain was the cause, not drainage. It was settled out of court in the claimant‛s favour.” • “I provided a report for the claimant concerning a motorcyclist injured after encountering a pothole. After considering maintenance records it appeared that this was a known defect that had previously been repaired, possibly badly.”
The epidemiology of fractures
Fractures are extremely common and occur in all age groups and in both males and females. However their distribution changes with age and gender. In males fractures have a bimodal distribution with an increased incidence being seen in both younger and older males. In females there is a unimodal distribution affecting older females. The incidence of fractures is relatively constant until the menopause after which the incidence rises quickly and the spectrum of fractures changes. Table 1 shows the ten most common fractures in different age groups. In children and adolescents (≤ 15 years of age) fractures of the hand and wrist account for about 55% of all fractures with a further 9% occurring in the diaphyses, or mid-section, of the long bones. With increasing age the distribution of fractures changes but in adults, aged 16-64 years, about 47% of fractures are hand fractures and only about 4% are long bone diaphyseal fractures. In older patients (≼ 65 years) the distribution of fractures is different. Only about 29% occur in the wrist and hand and about 5% are long bone diaphyseal fractures. Table 1 shows that there is a considerable increase in fragility fractures with the commonest fracture in the ≼ 65 year age group being the proximal femoral, or hip, fracture. Other fragility fractures that are commonly seen are the distal radius, or distal forearm, fracture and the proximal humeral fracture in the shoulder.
Table 1 shows that fractures of the pelvis and femur are more common. These are often though to be high-energy injuries that occur as a result of road traffic accidents but nowadays they are mainly fragility fractures, occurring in the elderly. Table 1 shows that overall the commonest fracture that presents to orthopaedic surgeons is the distal radius, or wrist, fracture. This is known as the Colles fracture after Abraham Colles who described it. These account for about a third of all childhood and adolescent fractures and about a fifth of all fractures in the elderly. Some fractures, such as the clavicle or collar bone fracture, are more commonly seen in young patients and others, such as the ankle fractures are commoner in young and middle aged adults. Obviously the epidemiology of fractures reflects the condition of the bones but also the activities of the population. Ankle fractures often follow work-place or sports injuries and are therefore more common in young and middle-aged adults.
There are many medical and social factors that influence fracture epidemiology and these are probably best examined by assessing the effect of social deprivation on the incidence of fractures. A study in Scotland showed that in the least affluent 10% of the population the incidence of fractures in males was 4 times higher than in the rest of the population. The equivalent figure for females was 3.5 times.
The epidemiology of fractures is changing very rapidly. A comparison of fracture epidemiology in adults aged > 35 years in the United Kingdom in the 1950s with an equivalent population in 2010 shows that the incidence of fractures in males rose by 4.4% but in females it rose by 85.7%. This illustrates the rapid change in social conditions and the health of the population in the last 60 years. Industrial injuries have declined and fragility fractures have increased.
Table 1 The overall incidence and prevalence of the commonest 10 fractures in three age groups. The data was collected in Edinburgh, Scotland.
The Award-winning
Mr. Jon Leigh
Gillingham Clinic Of Complementary Medicine The team at the Forensic & Expert Witness E Magazine are delighted to announce, Mr. Jon Leigh of the Gillingham Clinic of Complimentary Medicine as the deserving recipient of :
The Medico Legal Award for Occupational Injury 2015.
The Award reflects the outstanding professionalism and quality of reporting that is offered by the clinic's Lead Practitioner. Registered Osteopath, Naturopathic Physician and Expert Witness, Mr. Jon Leigh has been in practice for over forty years. His areas of expertise include instructions on injuries caused by motor car accidents, occupational injuries and sports injuries. Mr. Leigh is registered with the General Osteopathic Council. He established the Gillingham Clinic of Complementary Medicine in 1982 and has also taught at the British College of Naturopathy and Osteopathy where he trained; the European School of Osteopathy in Maidstone, and the International College of Osteopathy & Alternative Therapies.
This fast whip like action of your head is what causes the strain and sprain in your muscles, tendons and ligaments. In severe cases, this whip action can create disc injury in the spine. And it is this motion which creates your pain. Symptoms of Whiplash can include:
i. Neck pain and stiffness (often in the front of your neck too) ii. Headaches, often at the base of the skull iii. Dizziness iv. Blurred vision v. Fatigue This can result in difficulty concentrating; ringing in the ears; sleep disturbances; irritability; emotional upset- from fear, to crying to anger, unexpectedly. As well as speech changes; difficulty swallowing; memory problems and even concussion.
During forty years of prominence within the Expert Witness field, Mr. Leigh has instructed on numerous cases involving motor car accidents, occupational injury cases and sports injury related cases. One of the most common claims features individuals suffering from the whiplash complaints.
In recent years, many cases of whiplash have been suspected fraud. However, from a medical point of view fraud is very difficult to spot due to evidence being difficult for a physician to spot. A classic whiplash injury occurs when the head is thrown directly back then forwards, usually the patient will have been wearing a seatbelt however, sometimes a seatbelt may increase the whip of the neck by holding the body back. As a physician or expert the question as to whether or a not a seatbelt was being worn at the time of impact would be asked.
Whiplash gets it's name from how your head and neck move when someone crashes into you. Unfortunately, during the accident, your head is often powerfully snapped back and forward so fast you don't even notice it happening.
Due to the onset of whiplash symptoms not happening until the few days after the accident, most patients go the see their GP rather than go to A&E, this means that they are examined, given advice and sent home with pain relief.
Registered Osteopath & Registered Naturopathic Physician Member of the Institute of Osteopath Member of the Institute of Classical Osteopathy Member of the Institute of Expert Witnesses
Mr. Jon Leigh of the Gillingham Clinic of Complimentary Medicine explained: “Osteopaths, being experts in spinal mechanics, understand the mechanics of how and why whiplash is caused and thus are more able to treat it. This is different from people who merely treat the symptoms without having fully studies the spinal mechanics.” Whiplash symptoms from a car accident can cause you pain right away. But just as common, pain and symptoms sometimes can take 10 days to even 2 weeks before you feel them. This makes whiplash a bit complicated as you might think you are not injured after a car accident. Then 2 weeks later you wake up and can barely move your neck, or you find you are have constant headaches. Very few Osteopaths also act as an Expert Witness; Mr. Leigh is fully trained and vastly experienced in writing medico-legal reports for solicitors, as well as presenting evidence in court including acting as a Single Joint Expert. More recently however, the instruction of Expert Witnesses has led to many cases being settled outside of court.
In a recent interview, Mr. Leigh highlighted the importance of instructing an Expert Witness at the beginning of an investigation/ legal case, opposed to asking for an opinion at a later stage of the proceedings:
“The earlier an expert is instructed, the less secondary trauma and stress the injured party is likely to experience” he said. “Also, in the case of whiplash injuries, the sooner some form of positive treatment is instigated, the sooner the person will recover and in the long term save the insurers time, effort and money”
Please contact Mr. Jon Leigh at the Gillingham Clinic of Complementary Medicine
T:01634 576 292 E: jhl@gillinghamclinic.co.uk W:www.gillinghamclinic.co.uk
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Simon Fulford FRCS (Urol)
Consultant Urological Surgeon & Award-winning Expert Witness in cases of Compensation for Post Spinal Injury, Post Accidental Injury, Post Head Injury & Urological medical negligence The Senior Management team of the Forensics & Expert Witness E Magazine are delighted to announce, Simon Fulford as the deserving recipient of the Expert Witness Award for Urology 2014. The Award reflects the professionalism and experience that Mr. Fulford brings to the forefront of medico-legal cases that he is instructed on, as well as the highly respected expert witness testimony that he provides in the court of law.
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hen it comes to medical negligence and criminal injury claims its vital for those in the legal sector to seek the independent, unbiased advise from a professional Surgeon. When it comes to court cases for compensation for spinal cord injury, cauda equina syndrome, pelvic fractures and urological medical negligence cases, Simon Fulford FRCS (Urol) has become recognised as a leading provider of Expert Witness Reports for Barristers and Lawyers on both sides of the case, as well as for law enforcement agencies. Boasting an MBBS Bachelor of Medicine & Surgery from London University, Fellow of the English Royal College of Surgeons,Together with subspecialist qualification in Urology (FRCSurol) is able to combine these qualifications with the wealth of practical expertise he has gained throughout his illustrious career. From his first post in August 1987 as House Surgeon dealing with general and vascular surgery at Dulwich Hospital, through to his current position as Consultant Urological Surgeon at James Cook University Hospital, which he has held for the past 12 years, as he explained in a recent interview: "I am one of ten consultants in a very busy department of Urology serving a population in the Tees Valley of over a million. I am also Consultant Urologist to the regional spinal injuries unit based at James Cook University Hospital which provides acute and long term care to patients with spinal cord injury from the whole of the North of England. In addition I also undertake NHS sessions at Darlington Memorial Hospital and a private and medico legal practice based at BMI Woodlands
Simon Fulford FRCS (Urol)
Hospital. My primary interest within Urology is the care of the neuropathic bladder in patients with spinal injuries or neurological disease. I see and manage large numbers of patients with spinal cord injury, Multiple Sclerosis, Parkinsons disease and many other neurological conditions. I regularly perform urodynamic investigations on such patients and offer a full range of management options ranging from ongoing surveillance to major urinary tract reconstructive procedures." Holding Membership to a number of major quality organisations including BMA; GMC; RCS; MPS and BAUS, Simon is also a member of the Teesside Urological Cancer MDT, and also pelvic exenteration for advanced gynaecologica or colorectal cancer. A great deal of Simon's medico legal work involves patients with Cauda Equina Syndrome (CES). The Cauda Equina is a bundle of nerves that lie within the spinal canal below the termination of the spinal cord from the level of the first or second Lumbar Vertebra to the coccyx. It is vulnerable to injury by compression. Most commonly this will be caused by a prolapsed inter vertebral disc but can also be the result of spinal fracture, tumours of the spine, congenital or degenerative spinal conditions or complications of procedures such as lumbar puncture or spinal anaesthetic.
Simon Fulford FRCS (Urol)
On receiving the Forensics & Expert Witness E Magazine’s Award, Mr. Fulford commented: “I was initially surprised to hear of the award but am very happy to accept it. I regard it as recognition of the quality of the reports I produce and an acknowledgment of the hard work I put in to them.” CES is the combination of low back pain, sciatica, saddle anaesthesia (loss of sensation around the anus and over the buttocks), motor weakness in the leg(s) combined with bladder and bowel disturbance (retention and / or incontinence) and loss of sexual function. Forming part of the Cauda Equina, the Sacral nerves supply the bladder, bowel, urethral sphincter, anal sphincter and the sexual organs. All of which can be effected by CES. Patients with established CES should be referred to a Urologist with an interest in Neuro Urology to be assessed and helped with their pelvic organ dysfunction. Unfortunately many cases of CES result in litigation for alleged negligence in relation to diagnosis or treatment. It is important that in these cases expert opinion from a Urologist with an interest in Neuro Urology in regard to pelvic organ dysfunction is sought in order to ensure appropriate assessment of ongoing disability, treatment and prognosis.
medical negligence cases and criminal injury cases." As you would expect from such a dedicated professional, Simon is committed to research and development as a means of introducing new techniques: "I have run audits on several new techniques and procedures which include artificial sphincter insertion, BoTox injection and implantation of Invance and Advance male slings. These results have been presented at local, national and international meetings and in some cases published. We have been collaborating with Professor Jenny Southgate of York University and currently our third research fellow is writing up her thesis on the Ketamine Induced Cystitis currently. This is an exciting research opportunity as understanding it may well improve our understanding and management of other painful bladder syndromes. I am therefore working with other urologists, epidemiologists, public health doctors, drug abuse experts and basic scientists to develop a On his medico legal work, Simon had this to say: comprehensive study of these patients. We are about to appoint a clinical research fellow to work "I have been preparing expert witness reports since full time on this project between JCUH and York shortly after appointment and have University.” attended training courses in medico legal report writing. Having appeared in court as an expert witness for both claimant and defendant, as well as FOR FURTHER INFORMATION PLEASE CONTACT: receiving joint instructions, I currently receive SIMON FULFORD FRCS (Urol) instructions for approximately two or three cases Tel: 07855312901 per month. The cases I have reported on include post spinal injury compensation claims, post Email: simonfulford@nhs.net accidental injury compensation claims post head injury compensation claims, along with urological
Dr Walayat Hussain Dermatology & Skin Cancer Expert Witness
Consultant Dermatologist, Dermatological Surgeon and Mohs Micrographic Surgeon at Leeds Teaching Hospitals NHS Trust, Dr Walayat Hussain accepts medico-legal instruction on all skin conditions including skin cancer, poor outcomes after surgery, scarring and acne. After qualifying, Dr Hussain specialised in Dermatology in Manchester & New Zealand and developed a specialist interest in skin cancer and dermatological reconstructive surgery. The expert appears on the General Medical Council’s Specialist Register as a Consultant Dermatologist, acknowledging his expertise in conditions relating to the skin (GMC registration 4744306).
Dr Hussain has been writing medico-legal reports for a number of years and his specialist areas include: •
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Skin cancer: Delayed diagnosis & appropriateness of treatment. If a cancerous cell had been detected earlier would the outcome have been different? Why was the diagnosis not made earlier? Were the best treatment methods used? Treatments: Were these appropriate and were any unnecessary, causing damaging side effects such as numbness, unsightly scarring, functional impairment, blistering, permanent skin discolouration? Scarring: Is the resultant scarring from surgery adequate or could its severity have been avoided or reduced? Cosmetically, was the outcome acceptable? Could another form of surgery been used? Was surgery the only option? Could a non-invasive treatment been used? The expert’s specialist area also includes cryotherapy: a very commonly used method of treating benign moles, pre-cancerous and cancerous skin growths. If not administered appropriately severe consequences may occur to include pain, blistering, infection, scarring, pins & needles and skin discolouration.
Dr Hussain is nationally & internationally recognised as a leading expert in Mohs micrographic surgery - a specialised technique using a microscope to ensure all roots of a skin cancer are removed. It is considered the ‘gold-standard’ treatment for skin cancer as it provides the highest chance of cure but also allows the best cosmetic results after surgery.
As testimony to his expertise, Dr Hussain is the only dermatological surgeon in all of Yorkshire to be accredited by the prestigious American College of Mohs Surgery – the world’s leading Mohs surgery institution. He is one of only a few doctors in Europe who is a Fellow of the American College of Mohs Surgery. Discussing the importance of instructing an expert at the beginning of legal proceedings as opposed to asking for an opinion at a later stage, Dr Hussain explained, “In several cases that I have recently accepted instruction on, time and effort has been wasted on the outcome due to delayed instruction. It is critically important to ask the right questions, to the right people at the right time during an investigation into medical negligence and related cases.”Although Dr Hussain has not needed to appear in court to give evidence, his experience and expertise in medicolegal report writing has seen many cases settled outside of the court room. He regularly provides medico-legal reports for the General Medical Council – the regulatory body which governs the work of all practising doctors in the UK.
Dr Hussain accepts instructions for both the claimant and defence independently but may also provide reports as a single-joint-expert witness if required.
T: 07580 411 350 E: yorkshiremohs@molecheckuk.com W: www.molecheckuk.com
An interview with MBA, MBBS, FRCS, FICS, Dip EurB (Plast) FRCS (Plast) Consultant Plastic, Reconstructive, Hand Surgeon & Expert Witness
Mr Atul Khanna is a consultant plastic surgeon and has been involved in medico legal work since 1997. In this period he has provided over 2,400 medical reports. These have been predominantly in the following areas of expertise
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Hand Surgery : Sequelae of hand injuries and surgery
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Soft tissue injury: Sequelae of post traumatic scarring
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Burns management: Sequelae of disability following burns injury, scarring and surgery
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Medical negligence in Cosmetic surgery
How has your experience and various qualifications enhanced your standing as an Expert Witness? Experience, qualifications and an analytical approach have enhanced my status as an expert witness. I am an NHS consultant in Plastic surgery at Sandwell and West Birmingham NHS Trust and Walsall Manor Hospital NHS Trust since 1999. I have also been clinical director for plastic surgery services in the Trust. I graduated in 1983 and after completing my Plastic surgery training I have been in consultant practice since 1998 having being awarded the FRCS in 1989, FRCS(Plast) in 1997, Dip Eur B(EBOPRAS) in 1998 and MBA (Open University) in 1994 . I am on the GMC’s specialist register for plastic surgery and have a general plastic and cosmetic surgery practice with sub-speciality interests in body contouring surgery, facial rejuvenation and breast surgery, skin oncology, Paediatric Plastic Surgery and Hand Surgery. I have had many years clinical experience in the management of Hand injuries : (Sequelae of hand injuries and surgery), Soft tissue injury: (Sequelae of post traumatic scarring) and Burns management: (Sequelae of disability following burns injury, scarring and surgery). This experience has helped me prepare 2400 reports over the last ten years in these clinical areas and also provided reports in medical negligence. Experience and qualifications are indeed extremely important but it is also important for the expert witness to have a passion for his/her work and desire to analyse the issues in detail. I certainly enjoy the analytical side of being an expert witness.
How regularly do you attend court and who do you act on behalf of? (Prosecution, Defence, Single Joint Expert) It is not often that I attend court. It usually works out to be once every 2 years. The percentage of work I undertake for Claimants, Defendants and SJE would be in the region of 80:10:10. I have seen a significant increase in the number of joint conferences I have had with experts over the years to provided joint statements.
What is the importance of instructing an Expert Witness at the beginning of an investigation/legal case, opposed to asking for an opinion at a later stage of the proceedings? Many of the cases I deal with are those involving the management of scars. Since it can take upto a year for the scar to settle it is usually helpful in many cases to wait for 12 to 18 months till a final prognosis to be given at the time of the preparation of the report. In complex cases where the client has had several injuries and it is inevitable that there is a requirement for several experts to be involved it is helpful for a preliminary/ initial report to be prepared. This is helpful for the client and solicitor to establish the requirement for further treatment/surgery and the need for the involvement of other specialists. In some medical negligence cases it is helpful for the solicitor to instruct an expert witness at the beginning of an investigation/legal case. Over the last 4-5 years I have been providing short format screening reports for cases involving liability and causation. I also tend to discuss many of these cases with the instructing solicitors and I am aware that they find this very helpful.
Are you a member of any fellowships and/or societies? I am a member of the Society of Expert Witnesses and member of numerous professional bodies including the British Association of Plastic, Reconstructive and Aesthetic Plastic Surgeons (BAPRAS). I have been council member of the British Association of Aesthetic Plastic Surgeons and Chairman of the British Medical Association, Birmingham and Honorary Secretary of the West Midlands Regional Advisory Committee in Plastic Surgery. I am actively involved in teaching and training and have been College tutor for Surgery for my NHS Trust. I have several publications in scientific peer reviewed journals and I am a reviewer for the Journal of Plastic, Reconstructive and Aesthetic Surgery. I have also prepared a chapter for the Encyclopeadia of Forensic & Legal Medicine entitled “Medical Malpractice in Cosmetic and Plastic Surgery
Could you provide brief examples of cases that you have instructed on? Plastic and aesthetic/cosmetic surgery covers a wide range of surgical procedures. Cosmetic surgery is different from other surgical specialties as the benefits of surgery are mostly psychological rather than functional. There are certain issues that lead to malpractice claims against plastic and cosmetic surgeons. These include unexpected scarring, general dissatisfaction, and lack of adequate explanation or discussion that is not appropriate for the patient’s level of understanding, resulting in poor consent. The patient’s expectations may have been unrealistic. The patient’s expectations may not have been known preoperatively and subsequently not have been met, or the patient’s expectations may have been known pre- operatively and were still not met. There are also patients who are more likely to pursue litigation claims in cosmetic surgery. These are patients with great expectations, excessively demanding patients, and those who may be indecisive, immature, and secretive. Patients who lack familial approval, those who have repeated cosmetic surgery procedures, and patients with psychological problems are also more preferable to trying to do as much as possible in one session.
It is important for the medical expert to understand the consent process for each individual case and be uptodate with all the relevant advances in the surgical techniques for various conditions.
T: 0121 507 3455 M: 07880 797 235 E: atulkhanna@doctors.org.uk W: www.atulkhanna.co.uk
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PSYCHOLOGICAL SERVICES AWARD 2015 It gives us great pleasure to announce that MIDLANDS PSYCHOLOGICAL SERVICES LTD has been chosen as this year’s winner of the coveted PSYCHOLOGICAL SERVICES AWARD 2015, an independent Award Scheme sponsored by Forensic & Expert Witness E-Mag. In presenting this Award the team at Forensic & Expert Witness E-Mag were particularly impressed with the fact that Chartered Clinical Psychologist and founder of the company Dr. Dennis Trent, a Associate Fellow of the British Psychological Society, has been providing Expert Witness Reports for over 20 years dealing with Child Protection/Custody issues, Pre-Sentence Reports, Risk Assessments, Fitness to Plead, Learning Disabilities and other court related psychological assessments. This Award Scheme was created in order to recognise those businesses and individuals who have made an outstanding contribution to their particular field. Forensic & Expert Witness E-Mag is always keen to bring attention to those who are providing a product or service that stands out from the crowd and deserves to be appreciated not only by its’ readers, but also by a wider audience. Acknowledged both locally and nationally this Award is a milestone for Midlands Psychological Services Ltd and forms the final piece of the jigsaw that confirms the company's success.
Gains Recognition with Top Award On receiving this accolade Dr. Trent has this to say:
“All of us at Midlands Psychological Services are honoured to have received this award. It is the combined efforts of many who have made it possible and it is shared by all of us.” Explaining the need for psychology in child protection Dr. Trent added: “It has often been said that the greatest asset of any culture is its children. To say that they are our future is like saying that day is light and night is dark. Someone who has been blind from birth may not understand that and it would appear that kind of blindness is more common than we would sometimes like to admit. The protection of children, while a widely recognised ideal, is often derailed by political and financial based decisions which are not in the best interest of our children. Children tend to see the world in a markedly concrete manner. That is to say that in a child’s life there is black and white with little or no grey. Things are either good or bad, right or wrong with little ability to recognise nuances between the two extremes. If a child has done a ‘bad’ thing, it is easy for the child to assume that he or she is a bad person. They also tend to take on responsibility for events and situations over which they have no control. Although they will often attempt to evade responsibility by denying an obvious action, they make connections which make sense at a concrete level, but which do not stand up to rational examination. “If I had eaten my corn Mum and Dad wouldn’t be fighting. If they weren’t fighting they wouldn’t be getting a divorce, therefore it is my fault they are getting a divorce” is a good example of concrete reasoning. It appears to be linear in that one leads to the next, but when examined the components, i.e., eating corn and getting a divorce, are very tenuously related at best. In years of clinical practice I have never met a couple who divorced because the child did not eat their corn. While to an adult it may be a flashpoint, to a child it is the reason.
Children rely on adults for their very existence. We know that nurturing a child is essential to the development of the child. Shortly after World War II children in an orphanage were investigated because the infant nearest the door always did better than the others and it was not known why. When cameras were placed in the room it was noted that when the matron would turn out the lights at the end of the day she would reach down and caress the child nearest her before she left the room. Even a seemingly simple gesture as a passing caress is enough to have a positive impact on an infant’s life. The primary damage, other than physical, of child abuse is a breach of the trust relationship between children and adults. When the very person a child relies on for safety, security and nurturing creates an environment which is not safe, secure or nurturing, the child will often take responsibility for having created that environment. Anyone who has worked with abused children will recognise such statements as, “I deserved it”, “if I hadn’t....”, and “it was my fault”. These same statements are frequently heard when working with adult survivors of child abuse. If children cannot trust the environment, then when they become adults their ability to trust themselves as well as others is likely to be impaired, thus having a marked effect on both their self-concept and their ability to empathise with others.
Most parents recognise that it is important to have a consistent meal and bedtime schedule for their children. It establishes a structure within which a child can experiment and play, and forms the basis for the child’s sense of security and stability. When a child is abused there is little ability for the child to experiment or play as most of the child’s efforts will be directed at stabilising the environment and ‘pleasing’ the abuser in an attempt to avoid future abuse. This is likely to set a pattern for future behaviour as an adult. Since the individual sees little self value, efforts are often directed at gaining a sense of value from others, often by establishing a relationship to gain that sense of value. The problem is that people will not accept something they do not believe to be true, and therefore the individual will negate any value given by a partner. The lack of trust will cause a ‘testing’ of the relationship to find the breaking point and, when reached, another partner will be sought to gain the sense of value which was not obtained in the first relationship. As such, a pattern of unstable relationships follow, often with significant domestic violence inherent within those relationships. Sex enters into the equation in that within the Western culture, sex is frequently seen as an indicator that emotional intimacy, acceptance, love and approval or value has been established. While the individual in almost all cases is searching for an emotional intimacy, that is acceptance and security, what is achieved is a physical intimacy devoid of the very thing being sought. It is often seen by the individual that the answer to this dilemma of poor self-concept, lack of trust in others and feelings of estrangement is to have a baby. A baby is often viewed as someone who will love unconditionally and give worth to the individual. The child is viewed as there for the parent, not the parent there for the child. What is not recognised is that within a poor relationship a child is demanding and an added stress. Now the pattern repeats as the parents are not receiving what they wanted from the child and the child is therefore often seen as the problem.
The problem is now exacerbated by taking the child out of the family and placing him or her in care, a process designed to protect the child. While it is understood that a social worker wants to progress a career, multiple changes of social workers only increases the instability in the child’s life. The same applies to Foster Parents. While there are many very good foster parents, children who have been taken from families present many problems for those foster parents who are less able or willing to deal with those problems. Placement in multiple foster homes is not uncommon and again will be more damaging than helpful. Unfortunately, there is no formal psychological assessment of potential foster carers or children’s homes workers and while experts in social care systems, social workers are not always best placed to assess the psychological make-up of parents who are very adept at covering over abuse and presenting themselves as caring individuals. Enter the psychologist. Psychologists are extensively trained to make the assessment of risks to children. With tested and proven instruments, many of which identify information the individual is not aware is being sought, the underlying risk presented by taking a child from a family unnecessarily, or placing a child into a high risk environment, often can be avoided. As fully independent experts we have the ability to view parents, children and environments from a completely objective viewpoint keeping the needs of the child paramount. We can make recommendations to the Court as to the needs of the child as well as ways in which the parent can improve themselves and their parenting skills in order to provide a more safe and secure environment for their child. We can assess the level of risk a parent or potential partner presents to a child. While past behaviour is a good indicator of future behaviour, it is not an absolute predictor. It is well accepted that the best place for a child is with the parents when that is safe and appropriate.
In conclusion Dr. Trent went on to say:: "Psychologists are best placed to help tease out that level of appropriateness. They can also assist Social Services in assessing the appropriateness of potential foster carers and support social workers in working with both children and adults. Most importantly, they can assist the Court to make a decision which is in the best interest of the child. Failure to do so will only build a significantly greater problem for the future. It is commonly accepted that the incidence of mental disorders in the prison population has markedly increased over the past years. The protection of children and early intervention facilitated by formal assessments of risk posed to them by parents, partners and carers is the first step in reducing, and turning around, a time bomb with huge personal, social and financial costs for the future."
For further information contact: Dr. Dennis Trent, MIDLANDS PSYCHOLOGICAL SERVICES
Tel: (0121) 224-3051, Fax: (0121) 224 3252, Email: mps@midpsych.co.uk Website: www.midpsych.co.uk
Safety 4 HEd LLP Vincent Theobald-Vega
Health & Safety Consultant & Expert Witness It was whilst Head of Safety for Newcastle University that Vincent Theobald-Vega took a leap of faith to form his own company, Safety 4 HEd LLP. Since then the Company has grown and gathered momentum. Even in its first year the Company undertook work for Universities, Technology companies and a Blue Chip FTSE100 company. As a very experienced expert health & Safety practitioner, highly committed to the development of quality Occupational Health, Safety and Environment cultures, Vincent has a proven track record of creating good quality safety procedures and reducing business costs, whilst improving safety compliance. This includes acting as a prosecutor whilst with the HSE and supporting defence and civil cases Therefore, it came as no surprise when Vincent decided to extend the services he provided to include acting as an Expert Witness on issues relating to Health & Safety. Having a BSc (Hons) in Forestry, MSc in Biological Computation and Postgraduate Diploma in Health & Safety, as well as the Certificate in Education (LLS), Vincent is able to draw on his academic training, together with the unique knowledge he gained throughout his career – working in a wide spectrum of industries to provide a professional, independent service as an Expert Witness. Never one to rest on his laurels, Vincent is constantly pushing the boundaries of his own personal development, having gained many qualifications including: CMIOSH, FIIRSM, and OSHCR, which all require ongoing CPD. Yet another string to Vincent’s bow is his capability to deliver a wide range of Training courses for clients, including the IOSH Working, Managing and Directing Safely courses, as well as the NEBOSH AWARD, Diploma and Certificate courses. He also offers bespoke Training for clients to meet their individual specifications.
In a recent interview, Vincent agreed to let us in on the secret to his success as an Expert Witness: “When providing my services as an Expert Witness on Health & Safety issues, I am able to utilise my huge breadth of expertise in all areas of Health & Safety, which I gained working for over 25 years within the sector. During this time I dealt with issues relating to Agriculture, Management & Removal of Asbestos, Biosafety, Construction, Dangerous Substances, Demolition, Education, Fire, Forestry GMO’s, Heights & Falls and Investigations dealing with trivialities through to fatalities. This diversity of knowledge gives me the advantage of having had occasion to deal with the majority of critical Health & Safety problems at some time or other throughout my career, enabling me to quickly analyse the problem and promptly isolate the relevant issues - which, in solving more complex cases, may require that I liaise with other specialists working in the field. I can then provide the client with a concise, independent report detailing my findings. In my capacity as an Expert Witness, I have previously been involved in a number of cases, including those which are now sealed under confidentiality agreements. I am currently engaged on an electrical explosion incident on a very high amperage 415V system, which is highly likely to end up in a Court case, due to the level of economic damage that was suffered.”
As you would expect of such a consummate professional, Vincent’s professional qualifications include : FIIRSM FRSPH CMIOSH MISTR EurOSHM &
Fellow of the International Institute of Risk and Safety Management Fellow of the Royal Society for Public Health Chartered Member of the Institution of Occupational Safety and Health Member of the Institute of Safety in Technology and Research European Occupational Safety and Health Manager validated by ENSHPO Associate Member of the Chartered Institute of Ergonomics and Human Factors
servicesare areBespoke Bespoke as All All services asStandard Standard Registered RegisteredasasananExpert ExpertWitness Witnesswith withthe theUK UKRegister Registerofof Expert firmly believes believesininthe theimportance importance ExpertWitnesses, Witnesses, Vincent Vincent firmly beinginstructed instructed at at the the beginning beginning ofofan ofofbeing aninvestigation investigationoror legalcase, case,asasheheexplained: explained:“Getting “Getting in in at at the the start start of legal of aa case case is is important as it enables the best evidence to be collected important as it enables the best evidence to be collected and and analysed before it has decayed. In this way, the cases analysed before it has decayed. In this way, the cases and and the circumstances of the incident(s) being investigated the the incident(s) being investigated arecircumstances able to be bestofunderstood and interpreted, and peopleare able to be best understood and interpreted, and are less likely to have entrenched themselves topeople a pointare less likely to have entrenched themselves to a point where they will not communicate and negotiate. Thiswhere is faster less costly than Court cases, they willand notmuch communicate and negotiate. Thand is isnormally faster and muchless more effective people generally believe.” much costly thanthan Court cases, and normally much more effWhen ectiveasked than how people generally believe. When asked how regularly he had been”required to attend regularly he had been required to attend court when acting court when acting as an Expert Witness, Vincent has this to “ WhenWitness, acting asVincent an Expert I have found acting that assay: an Expert hasWitness this to say: “ When of my cases have beenthat settled out of Court. asthe an majority Expert Witness I have found the majority of my Having said that, I am completely competent with cases have been settled out of Court. Having said that, the I am formalities required when giving evidence in Court, as I completely competent with the formalities required when attended Court regularly in my capacity as an HSE giving evidence in Court, as I attended Inspector, and would be pleased to attendCourt Court regularly on behalf in my an HSE and would be pleased of capacity my client,asshould theInspector, occasion arise, when acting as an to attend Court on behalf of my client, should the occasion Expert Witness.” arise, when acting as an Expert Witness.” The testimonial below highlights the high esteem in which Vincent isbelow regarded by his clients: Th e testimonial highlights the high esteem in
Images copyright safety 4 HEd LLP
which Vincent is regarded by to histhank clients: I wanted to drop you a note you for your
efforts on the recent consultancy project you have completed for you one of my long standing I wanted to drop a note to thank youclients. for your efforts on
the recent consultancy project for one The feedback from the clientyou hashave beencompleted very positive. of my longmy standing clients.both your interim and final From perspective reports been from delivered time, budget and in Thehave feedback the on client hasonbeen very positive. line with the original brief. In my opinion, your From my perspective both your interim and final reports to detail knowledge has with haveattention been delivered on and time,technical on budget and in line provided my client with the information that they need the original brief. In my opinion, your attention to detail to make an informed, risk-based decision on their next and course technical knowledge has provided my client with the of action. information that they need to make an informed, risk-based Your on report both technical and nondecision their has next helped course of action. technical people involved in this serious incident Your report has helped both technical and understand both the gravity of the potential life risk nontechnical people in nearly this 10 serious incident and root cause from involved errors made years ago. understand of the potential life Added toboth thisthe is gravity the clear understanding of risk the and rootbusiness cause from errors made nearly 10 years ago. Added impact of the deficiencies in the power supply to this configuration. is the clear understanding of the business impact of the deficiencies in the supply configuration. I will have no power hesitation in working with you again I will have no hesitation in working with you you again should the need arise and in recommending to should thesafety need arise and in recommending you toBest other other professionals and clients alike. Regards safety professionals and clients alike. Best Regards Picturestaken taken during investigations into laboratory, Pictures during investigations into laboratory, manufacturing and workshop incidents. manufacturing and workshop incidents.
more please contact contact: To fiTo nd find out out more please Vincent Theobald-Vega Vincent Theobald-Vega Safety 4 HEd LLP SAFETY 4 HEd LLP 7 Derwent View, Chopwell 7 Derwent View, Chopwell, Newcastle-upon-Tyne Newcastle-upon-Tyne NE17 7AN NE17 7AN
Tel: 07940 564 889 Email: vincent@safety4hed.co.uk Tel: 07940 564 889 Web: www.safety4hed.co.uk
Email: vincent@safety4hed.co.uk Website: www.safety4hed.co.uk
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SURVEYING
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David Kitchen Chartered Surveyor
MaPS, FRICS Member of the Association of Planning Supervisors Fellow of the Royal Institution of Chartered Surveyors Organisation:
Mr. David Kitchen
Over 25 years experience in respect of expert Witness, ADR and Mediation in respect of building and civil engineering disputes
• • • •
Surveying and valuations Land title and ownership disputes Building services Waste disposal sites
MaPS FRICS
Expert Witness David Kitchen Associates Ltd, 19 Yarm Road tockton-on-Tees Cleveland TS18 3NJ in the Construction industry T: 01642 634455 / M: 07710 154086 F: 01642 634464 / E: david@dkel.fsnet.co.uk
A qualified and highly regarded Chartered Surveyor, Mr. David Kitchen practice is based in Stockton-on-Tees and predominantly accepts instruction from clients in the north east of England. A Member of the Association of Planning Supervisors and a Fellow of the Royal Institution of Chartered Surveyors, Mr. Kitchen's area of interest focuses purely on the construction industry. For effective legal reporting and expert witness advice within the construction industry, the expert must maintain his general involvement in other matters such as surveys, repairing schedules, etc. It is also fundamental for the expert to be appointed as soon as possible during legal proceedings ensuring legal advisors are fully aware of the overall position. It is critically important to set out the matter clearly, to explain the background, so that those involved understand the position. The Barrister, if employed, should also be versed in building matters. It is also highly unlikely that a Judge in the Civil Court will have any special knowledge in building matters. The expert therefore has to provide a report, clearly setting out details and the position exactly with regard to the claim. A Judge may have some difficulty in understanding all the matters being discussed, particularly with specialist terms and descriptions - a glossary of building terms should be presented.
Photography can also be of great benefit. As can models. Familiar items such as a matchbox can be used as an example - the Judge knows the shape and general size and can quickly grasp the 'fall' which is being demonstrated. A simple model of a roof structure in balsa wood to show the rafters will enable the Judge to understand that the other sections of balsa, coloured red or green, as the case may be, clearly indicates where it was intended the steel framework should have been provided, but was non-existent. The use of models can accurately demonstrate a particular point, and in some cases real-life examples used such as a thin section taken from a rotten beam.
David Kitchen Associates have over 25 years experience in respect of expert witness ADR and mediation in building and civil engineering disputes. The firm have provided many legal reports and principle expert, David Kitchen attends court several times each year. David Kitchen Associates' expertise cover: • • • •
Surveying and valuations Land title and ownership disputes Building services Waste disposal sites
It is sensible for any expert witness, upon commencement, to assume on an immediate basis that the matter will end up in Court. No surveyor practising as an Expert Witness or offering this service should do so unless they are prepared to act in Court and give evidence.
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SURVEYING David Kitchen Chartered Surveyor
MaPS, FRICS Member of the Association of Planning Supervisors Fellow of the Royal Institution of Chartered Surveyors Organisation:
Over 25 years experience in respect of expert Witness, ADR and Mediation in respect of building and civil engineering disputes
• • • •
Surveying and valuations Land title and ownership disputes Building services Waste disposal sites David Kitchen Associates Ltd, 19 Yarm Road tockton-on-Tees Cleveland TS18 3NJ T: 01642 634455 / M: 07710 154086 F: 01642 634464 / E: david@dkel.fsnet.co.uk
Flat Lease Extensions & Collective Freehold Enfranchisement Each Side Leasehold receives instructions from solicitors working on cases involving residential Property Valuations, Flat Lease Extensions, and from clients wishing to buy the freehold of a block of residential apartments collectively, known as Freehold Enfranchisement. The amounts that leaseholders are charged outside of the capital are largely seen as scandalous. When acquiring the freehold of a property known as freehold enfranchisement (including collective purchase of the freehold of a block of flats), the appointment of an expert in the specialised field can be the difference between a harmonious conclusion and a bitter dispute. It makes perfect sense for leaseholders to take control over the value of their most valuable asset but not at a price which is not cost effective or is unsupportable. Current legislation ensures that anyone who has the ownership of a diminishing asset of a leasehold home is entitled to a lease extension of 90 years at NIL rent and at any time can collectively buy their freehold as long as legal requirements are met. How they get it and the price they pay is the remit of the specialist valuer.
The Expert's Role Each Side Leasehold’s Managing Director and principal Expert Witness, Roger Nelson acts for any side of a spectrum that includes flat lessee owners on the one side and freeholders or landlords on the other. He qualified in 1978. However, since the mid -90s the need for an expert in leasehold and enfranchisement has become more evident. In 2008, Roger set up his own private company, Each Side Leasehold to deal with this issue solely and today, he specialises in numerous cases. Discussing his role, Roger explains that “experience is important. As an expert, it is vital to understand both sides of the case and hold full appreciation for the facts and this ultimately enhances the quality of an expert witness.” Commonly, Each Side Leasehold is instructed to provide an initial valuation and undertake the negotiation process on behalf of their clients. If a solution cannot be agreed and a formal notice has been served to extend or buy the freehold then if this cannot be agreed a tribunal is the natural progression. Cost effectiveness is paramount; costs cannot become the tail that wags the dog! During a tribunal, Roger will act as expert witness and sometimes as a single jointly appointed expert. Following the requirements of RICS, he will receive written authority from an instructing solicitor and hold an over-riding duty to the court/tribunal.
In Roger’s experience, over 95% of cases settlements are agreed before the issues reach the tribunal stage. However, the expert does have a monetary responsibility to the client and, if the case is deemed not cost effective in respect of the time it will take, the expert will advise their client accordingly. With this in mind, Roger describes reaching a tribunal ‘as a failure in negotiation.’
“Honesty is integral as every detail will be scrutinised in a court of law. It is also imperative that the expert is absolutely sure not to stray outside of their specialism to avoid vulnerabilities,” - as leasehold disputes can be complex and involve an in-depth understanding of matters outside the expert’s expertise such as statistics, economics or building regulations and costs”- Roger continued.
He describes valuations like a jigsaw puzzle: “All information must be collated to fit the puzzle and I will give my opinion based on the complete jigsaw puzzle,” he explained. “It is impossible to know absolutely all the facts, until they are confirmed by other sources; an expert’s report and opinion should be based solely on the evidence available and not on any pre-conceived idea”
Part of a Team.
The frame of mind and expectations of both the expert and client is important. The expert should make the client aware of any limitations to the case as early in proceedings as possible, whilst also being careful when giving advice which may become discoverable to the other side. The “discovery” of this advice when the case comes to trial could be detrimental to the outcome and, ultimately decrease the credibility of the expert for future instructions.
Commitment to the Court Her Hon Hazel Marshall QC a former Senior Chancery Judge who has now retired once advised practitioners to ‘not look at the evidence to feed a pre-conceived opinion’. A piece of advice that has structured the way that experts conduct their business on a day-to-day basis, striving to maintain an objective view so as not be accused of being bias to either party. Roger Nelson has acted as an expert witness on value scenarios; and as a joint expert witness on cost issues raised within the housing and leasehold sector. He explains that “The aim, is to thrash out the case with the other experts involved using the full information and an appreciation of the opinions of other experts.”
The Association of Leasehold Enfranchisement Practitioners (ALEP) comprises valuers, solicitors, barristers, managing agents and project managers was founded in 2007 from which time Roger has been a full member. This organisation of 180 members promotes best practice and is made up of practitioners experienced in this field who adhere to an agreed level of conduct and service. Roger says “that ALEP goes right to the nub of what an expert is all about that is being part of a team”. They hold two conferences each year; act as an information source for the general public as well as lobbying the government on anomalies and inconsistencies in leasehold reform legislation. They recently met the Ministry of Justice on the government’s proposals to increase fees for First Tier Tribunals, which if implemented on cost grounds would effectively remove the statutory right of a lease extension or collective purchase to a flat owner in lower value areas outside London. Roger also speaks at meetings of the Leasehold Forum, a discussion group of practitioners similar to ALEP and last year at Continuing Professional Development meetings organised by the profession The Royal Institution of Chartered Surveyors
T:0800 902 0466. T:01737 237 811 E:info@eslease.com W:www.eslease.com
Highways Consultant & Expert Witness Munro Consulting was formed by Consultant Engineer & Expert Witness Andrew Munro (BSc Hons, CEng, MICE, MCIHT) in December 2010, to offer technical advisory, project management, contracts, procurement, and Expert Witness services to the Highways and Key to enabling Andrew to achieve such an impressive reputation is the fact that he can draw on his comprehensive academic training which includes achieving a BSc Hons Degree (1st Class) in Civil Engineering at University of Portsmouth, after which he successfully completed a Masters module in Lean Construction at Loughborough University. Never one to ‘rest on his laurels’ Andrew continued to develop his knowledge-base by attending a number of training courses dealing with related topics such as Lean Construction… Consulting Skills ... Management of Projects ...Influencing Skills ... Mentoring and Coaching for Performance ... Atkins Management Development Centre and EFQM Assessor Training. Boasting over 30 years’ experience in Highways Design and Construction, Andrew is able to utilise the wealth of invaluable experience he gained throughout his career; starting out in the Eastern Road Construction Unit, Witham in 1978 working on the design of the M25. Through to becoming in 2001 a Chief Engineer for Atkins Highways & Transportation, prior to setting-up his own company Munro Consulting in 2010.
Andrew is a graduate of the University of Portsmouth, where he gained a Bachelor of Science degree (1st Class) in Civil Engineering. He has developed his skills throughout his career, combining technical and management training. In 2011 he completed a Masters module in Lean Construction at Loughborough University, and in 2015 completed a Masters level training course in Expert Witness Law and Practice. As a Chief Engineer with Atkins, Andrew as Project Manager or Project Director led an impressive array of major projects. These included the A14 Ellington to Fen Ditton, and the innovative Cambridgeshire Guided Busway. This experience led to Andrew becoming Head of Technology – Highways for Atkins and a member of the Technology Board, in this post Andrew had responsibility for leading technical excellence in Highways across the UK. Andrew was also Chair of the Highways Working Group.
Under the umbrella of Munro Consulting, Andrew delivers training in Highways Design & Detailing for ICE Training, part of the Institution of Civil Engineers. The course run over 2 days and delivered several times a year, covers the principal aspects of highway design to the national UK standards. Andrew developed the training material, and delivers the course at public venues or in house. Andrew’s extensive academic and practical knowledge enable him to provide his services as an Expert Witness covering all aspects of highway and civil engineering projects, from car park construction to motorway design. A highly competent report writer, and confident in public speaking, Andrew is highly capable at giving evidence. One client referred to him as “unshakeable under fire”. His legal experience includes acting as an expert witness, as well as a witness of fact. He is very comfortable working with Solicitors and Counsel, and can communicate technical topics in non-technical terms with ease. Having previously acted as Project Manager, Andrew found himself heavily involved in Cambridgeshire County Council v BAM Nutall in the Construction and Technology Court. Andrew explained: “Besides having first-hand knowledge of the matters in dispute, I participated in 3 out of the 4 adjudications, and assisted Counsel (Keating Chambers) and the Solicitors (BDB law) for Cambridgeshire County Council with responding to the Defence and Counter Claim. This involved briefing Counsel on the technical aspects of the dispute. I also prepared a very substantial witness statement relating to those matters of fact of which I had personal knowledge.”
Other cases for which Andrew has acted as an Expert Witness include: • Acting as an Expert Witness in an Arbitration (Rossfleet Investments v Anti-Waste Ltd 2006) for which Andrew provided his expert opinion on the construction of a concrete road, including giving evidence in the Arbitrator’s Court. • In Welcomes Road Residents Association v Arnold Tarmac, Andrew acted for the claimant in respect of the failure of 7500 sq metres of surface dressing. The case was settled out of court in the claimant’s favour • In the case of the A47 Thorney Bypass (2003) Andrew was the principal Engineering Design • Expert witness for the Highways Agency at the Public Inquiry.
A Member of Institution of Civil Engineers and the Chartered Institution of Highways & Transportation, Andrew’s is able to provide Expert analysis on the following issues: • • • • • •
If highway design or construction fails to comply with standards and regulations If necessary procedures were not followed If the correct project path was not taken following assessments If highway design or construction is inherently flawed If the proper materials were not used, or used incorrectly If contractual obligations have not been met.
To discuss your individual needs for an Expert Witness contact:
MUNRO CONSULTANTS 44c High Street, Chippenham, Ely, Cambridgeshire CB7 5PR
T: 0333 577 0073 E: enquiries@munro-consultants.co.uk W: www.munro-consultants.co.uk
Kathryn Thorndycraft-Pope
Handwriting and Signature Authenticity
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athryn Thorndycraft-Pope has been working within handwriting forensics for twenty-five years, initially with the Grampian Police Force and, in the last fifteen years, as an Independent Forensic Document Examiner from her office in Aberdeenshire. As a trusted expert, the majority of cases that Kathryn receives instructions on include questioned signatures on Will disputes, leases & contracts, multiple/second mortgage applications, guarantees etc. This year, Kathryn has provided reports for drink-driving offences whereby the accused denies that their signature is on the form (i.e. not agreeing to the blood test). She has also worked on several handwriting cases in the past focused on the letters involved in attempted murders. A Forensic Handwriting/Document Expert becomes involved when the authenticity of a document is in question. For instance, when a Criminal Defence Lawyer or Lawyer specialising in family problems has a divorce case to deal where a loan has been taken out with the joint property as security or sometimes a second mortgage. One party knows nothing about this but the other partner has simulated their signature to secure the money. The expert will then have to prove whether or not one of the signatures has been simulated or if in fact, are genuine signatures which appear on the agreement. This example is a common occurrence in Kathryn's work.
Discussing her role, Kathryn explained: “I need, whenever possible to examine the original documents but often only a photocopy is available, which I can use as 'best evidence' but does affect my conclusion. I have to meet up with the clients and obtain their formal handwriting samples and also a quantity of 'known' everyday signatures as found on passports, driving licences, store/ credit/debit cards etc.” This enables Kathryn to establish a persons 'natural variation' as no one can write exactly the same each time they write. Kathryn will then draw out and note all the formations, heights, widths, layout, slope, use of punctuation and even items such as the crossing of 't' dotting of 'i' of the 'questioned' and the 'known' writings comparing them to establish whether or not they are genuine or a possible simulation. If the possibility of simulation is evident and there are key signs such as tremor, hesitation and tracing; Kathryn will take photographs of the evidence and prepare a Forensic Science Report and if appropriate, an Illustration describing her findings for use in Court or during industrial tribunals.
Case examples: Case Examples The consequences of expert witness casework often involves a case going to Court and, depending on the severity or amount of the actual fraud, could be punishable through Community Service, a large fine or up to 25 years imprisonment. A large case Kathryn was involved with in the last year involved Car Hire Documents, where the expert was able to prove all details and signatures had been forged. This was a case involving two large drugs gangs in Scotland chasing each other; one in a hired car from which a gun was fired at the other car - which ended up as a murder case. Kathryn was able to prove that her client was not involved after she attended a prison to obtain his handwriting samples - four other people in this case were each given 25 years in prison. In another interesting case, Kathryn was asked to investigate a case of fraud that took place in Nairobi, where a gentleman died and the only person present was his girlfriend who had emptied the house and sold it, possibly by forging his signature. The time frame to undertake these examinations can vary. A single signature fraud usually takes about 7 hours to undertake all as mentioned above. However, Kathryn's caseload is very large so, when a case is received, she can usually complete and return a report within a month - often depending if it has a Court date. As a CertiďŹ ed Document Examiner, award-winning Kathryn is a Member of the Expert Witness Institute and a Member of NADE - National Association of Document Examiners, and as such regularly attends the annual NADE Conferences usually held in the USA & the Worshipful Company of Security Professional in Inner City of London
For further information, please contact Kathryn Thorndycraft-Pope CDE MEWI FHDI (Forensic Handwriting & Document Investigation) T:+44 (0) 1569 764 508, M:+44 (0) 7710 655 838; E:kt@fhdi.co.uk W:www.fhdi.co.uk
Tesa B. Translations
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English-Polish translation and interpretation
orking from her offices in Nottingham; Teresa Majewska provides a professional and confidential legal translation and interpreting service from Polish to English and vice versa. Problems with languages are rife in legal cases. The use and, more importantly, the need for accurate translation and interpreting of Polish in legal proceedings, thus represents the importance of Teresa's expertise. With Government cuts to legal aid, representation is not often available with interpretation one of the items paid for – this causes a huge problem when proceedings involve one or more individual whose native tongue is not of a British origin. This 'language barrier' can be critical to the outcome and the mistranslation of statements, reports or documents can add to complexities of the case. Add to this, problems that solicitors are experiencing with the governing body of legal translation and interpreting services in the UK and the impact on court cases can be catastrophic. Mirrored around the industry, government provided translators are either not arriving at court or, worse, not an expert in the language being spoken – therefore giving translators and interpreters in the country a bad reputation. Reliability is the key. Currently, solicitors must go through the authorities to request a linguist with an independent option only allowed to be explored after contacting them in the first instance. Teresa Majewska possesses vast experience and expertise in translating many subjects from legal matters to company reports with the advantage of all translations being edited by a native speaker – ensuring clarity and credibility.
Teresa is a member of CIoL with NRPSI membership, Full Status. The DPSI Law qualified interpretor also holds a BA in English Language and has completed a full CRB NPPV Level 2 check. Ensuring that all instructions are carried out thoroughly and with the utmost accuracy, Teresa is vastly experienced and has built excellent working relationships with many clients, meeting their deadlines and providing a critical component to the success of legal cases. Her specialities include interpreting, translation; proofreading and editing documents. Teresa holds 14 years experience, working in public service interpreting and translation, with a further 8 years experience within the UK. Today, she works independently as self-employed Tesa B Translations.
Tesa B. Translations T:0115 874 0046 E:tbmajewska@googlemail.com