Understand Your Rights. Solve Your Legal Problems
The Bar Council has responded to the Justice Select Committee’s report on the disclosure of evidence in criminal cases. Chair of the Bar Andrew Walker QC comments below.
We welcome the urgent call for action in today’s report from the Justice Select Committee on the serious and systemic failure in our criminal justice system regarding the disclosure of relevant evidential material by the prosecution to the defence, in cases of all types and at all levels.We welcome too its recognition that while several other factors have also been behind both this chronic failure and the failure to do anything about it for many years, the impact of dramatic cuts in funding for criminal justice cannot be ignored.
The increasing volume of digital material has clearly created new challenges for the CPS and the Police, but it is wholly unrealistic to expect them to meet those challenges without sufficient funding. The Government have to accept that there is a clear link between disclosure failures and the sustained budget cuts that it has imposed on all parts of the criminal justice system. While much has already been said in the media about significant cuts to police budgets, less has been said about the cuts to the CPS. These have been swingeing: the CPS staff budget fell from £738m in 2010-11 to £291m in 2015-16, a cut of over 60%.
The burden of trying to set cases back on course after disclosure failures, and of dealing with the fallout, has largely been borne by prosecution and defence barristers who – despite working under fee schemes which offer them no remuneration for doing so – routinely scour reams of unused material for evidence that is vital to a just outcome for their clients and for the public. Unjust and potentially life-changing rulings have been avoided because of the goodwill, professionalism and commitment shown by the professionals who work in the criminal justice system, without which it would grind to a halt.
(Source: The Bar Council)
Overthrowing the CPS: Has it Failed the Justice System?
‘Uneasy lies the head that wears a crown’.
In recent weeks, the issue of Crown Prosecution Services (CPS) failings in the disclosure of relevant material has been in the spotlight following the collapse of two rape cases. The relevant material which had not been disclosed was supportive of the defence case and should properly have been disclosed at an earlier stage, one being a diary and the other being vital mobile phone evidence. In response to condemnation, the CPS has vowed that all current rape and serious sexual assault cases in England and Wales will be reviewed "as a matter of urgency" to ensure evidence has been disclosed.
But is that enough? Is that not just the tip of the iceberg? Whilst perhaps reassuring to defendants who are currently facing charges of rape and serious sexual assault, what about historic cases? And why limit the scope of the review to just specific types of cases?
Further interest was sparked when the trial of three people facing trafficking and prostitution charges was halted due to crucial social media evidence having not been disclosed. This clearly demonstrates that the failure to disclose such evidence is not limited to rape and serious sexual assault cases and the CPS response is insufficiently narrow.
It is deeply concerning to see so many cases unravel because evidence is not being properly disclosed. Whilst it is encouraging to hear the CPS acknowledge the "systemic" problems with our current justice system, it is imperative that the issue gets the urgent attention it needs with direct action taken if we want the UK to be a place where justice is upheld and celebrated, rather than grossly miscarried.
The CPS admission to disclosure failures are taken to be across the board and so a review should be properly taken of all the live prosecution cases. Where there are systemic failures in the disclosure process within the CPS, there is the very real prospect that hundreds, possibly thousands, of cases currently being prosecuted may be impacted.
A review of all current CPS prosecution cases should be just the starting point. What of historic cases?
On 24 January 2018, the BBC revealed that the collapse of cases owing to a failure to disclose evidence increased by 70% in the last two years; 916 people had charges dropped over a failure to disclose evidence in 2017, up from 537 in 2014-15. These figures only relate to prosecutions that have been dropped due to failures to disclose evidence; they do not show all of the additional cases where there have been serious disclosure issues, yet the proceedings have continued regardless. The most recent revelations are alarming and unfortunately reinforce the disclosure issues which many criminal defence practitioners have experienced in some way.
The CPS must keep in mind that such evidential disclosure failings have an extremely wide reach, affecting cases across the entire spectrum of criminal law: from rape cases, to fraud cases and insider trading scandals. The risk is that innocent people across the UK are put through damaging and stressful prosecution proceedings and trials, or in the very worst cases wrongly convicted and imprisoned.
The duty of disclosure is not new, with the current disclosure framework applying to all cases where a criminal investigation began on or after 4 April 2005. At best, material has not been fully and properly reviewed by the prosecutor. At worst, material has been reviewed by the prosecutor, but has not been properly disclosed. All such scenarios where there has been a failure in disclosure potentially amount to negligence on behalf of the prosecuting authority, who have a duty to review and disclose material in accordance with the legal framework in place.
Costs, budgets and volume of material. Can these really be to blame? Or is it simply bad practice, which has been allowed to happen and continues to happen?
It is a question of regulation and monitoring. Whatever systems the CPS have in place, it is clearly failing and so calls for an independent body to review. An effective review cannot take place internally, from within the organisation where there are seemingly many failures, that are likely to have been occurring for many, many years.
In civil litigation a ‘dedicated disclosure working group’ exists seeking to completely overhaul civil disclosure. The CPS should consider implementing a similar working group for criminal cases, to avoid evidence not being disclosed in a responsible manner. Whilst civil disclosure itself cannot be used as a comparator for criminal disclosure, due to the stark differences in the regimes, the principle of a ‘working group’ should be followed.
Such a ‘working group’ focussing on criminal disclosure issues within the CPS should be comprised of CPS lawyers, SFO and FCA lawyers, criminal defence lawyers and Judges. It is envisaged that the working group would identify the issues and extent of CPS disclosure failures, propose remedies to the disclosure regime, along with the implementation and effective management of the disclosure regime, with a training program for CPS lawyers and a timetable to implementation.
The fact that no dedicated working group currently exists is, quite frankly, an oversight. The disclosure issues within the CPS are endemic and a radical overhaul is long overdue.
Byrne and Partners LLP
www.byrneandpartners.com
Emmeline Coerkamp is a criminal litigation lawyer with experience of a range of white collar crime matters. She has expertise in defending complex criminal fraud prosecutions, particularly matters brought by the Serious Fraud Office (SFO), as well as HM Revenue and Customs (HMRC) and the Crown Prosecution Service (CPS). She also has experience of confiscation proceedings.
Byrne and Partners is a dedicated commercial and criminal litigation practice based in the heart of London. Our experience and boutique profile means we are able to combine the highest levels of individual partner attention and quality service with very reasonable charge-out rates.
Over the past few months, Martino has been providing insights into using images and videos as evidence in court. In the final part of this series, he discusses if enhanced images can be used in court. With technology taking over many sectors, this is a must-read article where we learn how the digital world may change the courts and its hearings.
Written by Martino Jerian, CEO and Founder, Amped Software
Recently I testified in court as a forensic image and video expert and, as is sometimes the case, the use of some filters to enhance images was questioned. As I have written in the previous months, there is some processing that should be entirely avoided, since it lacks accuracy and repeatability. For example, we should avoid techniques which add new information relying on data obtained by a training set, or techniques which have a random component.
Some years ago, there was a school of thought that said, only classical image processing techniques available for analog photography can be applied to digital photography in the forensic context. What are the risks of applying the wrong processing? We are not interested about having a “pleasant” image, we are concerned about extracting information from it. The risks of incorrect processing are:
By this reasoning, we are not referring to details at the pixel level, but at the image semantic content. In general, if I resize an image, I add a lot of new pixels but if the processing is correct I am not adding any new relevant information.
It’s important to understand that most of the image processing techniques present a compromise: I enhance something at the expense of damaging something else. For example, if I lighten an image to show a dark part more clearly, it’s very likely that you will lose details in the parts of the image that are already bright enough.
For this reason, it’s generally very difficult to say which techniques are good and which techniques are bad. Their applicability must be related to the specific case and the parameters used. Filters are just tools, and as such, they can be used in the right way, obtaining better images, or in the wrong way, damaging the image quality or presenting wrong information.
Because of this, it’s important not to blindly apply different enhancement and restoration filters, but to apply them in order to correct a specific defect. Similarly, the tuning of their parameters must be consistent with the amount of defect you want to correct. Abusing the filters can create images which are worse than the original.
It is therefore important, as I’ve said before, to work with experts who have specific experience in the forensic image and video analysis field as they know what to do, and how to identify what has been done incorrectly.
A lot of pressure can be placed on the processing done by the experts, but most people ignore that there are many other possible issues that can occur during the image acquisition and visualization phases.
A lot of processing happens in the camera itself, from CCTV to smartphones. Unless raw image pictures are used, which is very rare, the value of the pixels in an image are hugely dependent on the processing and encoding which automatically happens inside the device in order to obtain the desired ratio between image quality and technical limitations.
And then, even to simply visualise the image, there’s a lot going on under the hood. Different software can decode the image in a slightly different way, which can enormously impact the final result. A lot of image processing happens on the graphic card of the PC, on the screen, or on a projector. Just by playing with the brightness of the projector you can understand how much of the visible information in an image can be altered by such simple tuning.
There is then the most critical part of the processing: our eyes and our brain. Different people see and want to see different things in the same image. Analysing things in an objective and unbiased way is often very difficult, unless you can measure things numerically. And in fact, avoiding and limiting the various types of biases are one of the most important aspect of forensic science currently studied.
“Can I use secret recordings in court?” is a question Melanie Bridgen, Partner and solicitor in the family law team at Nelsons Solicitors, is often asked when representing parties in proceedings concerning the breakdown of a relationship and the arrangements for children.
In family court proceedings, the available evidence usually boils down to one parent’s word against the other – it can be difficult to prove a parent’s complaint when no one else is around as a witness.
Very often, a party will have recorded conversations between either themselves or others, which they believe are of relevant and sometimes determinative evidential value. They would then want to use the recordings in the court proceedings to show the judge what is really going on.
The difficulty for the lawyer is that those recordings have been made in secret and the other party is not aware of them. The other party will most likely object to them being used in the court case and a separate application will have to be made for the recordings to be admitted into the evidence.
This situation is becoming increasingly relevant with the increased use of smart phones and technology that enables recordings to be made on small devices which can very often be concealed. This includes mobile telephones, CCTV and body cam video footage.
What does the law say?
The Association of Lawyers for Children (ALC) has made submissions on the use of clandestine recordings in family court proceedings. It says*: Guidance on covert recordings should emphasise the desirability of securing agreement to recording, distinguish between the recording of children and adult parties or professionals, and include a warning on sharing recordings that would enable identification of children subject to proceedings.
Covert recordings of children should rarely, if ever, be admitted as evidence, according to section 13(4) of the Children and Families Act 2014.
What should the courts consider?
Before deciding on admissibility, there are a number of things the courts should consider. These are as follows*:
If you have made any secret recordings and want to know whether they can be used or you are contemplating making a secret recording to assist your case, it is important you obtain independent legal advice. At Nelsons, we have a team of specialist lawyers who are able to help.
Images and videos are some of the most compelling forms of evidence that can be presented in a courtroom. Yet it is important that the steps we take when preparing them stand up to scrutiny.
Within the field of forensic image and video analysis one of the biggest issues we face is the CSI effect: the phenomenon whereby representations of forensic science on popular TV shows gives a distorted perception of what is possible; from endless zooming from satellite imagery, to enhancing the reflection of a reflection of a reflection. We very often have to explain, even to “the experts”, what is science and what is fiction.
This is complicated also by the fact that sometimes we are able to extract information from images and videos where at a first glance there is absolutely nothing visible. However, very often we can’t do anything to improve images that to that average person don’t look that bad.
Recently, there has been a lot of noise about every possible application of deep learning, a subset of the field of artificial intelligence which normally exploits big data to train systems to behave more or less like the human brain.
These technologies have been used for image enhancement and there are a lot of popular studies and experiments which achieve miracle-effects, almost at the level of what you see in fiction. There’s just one big problem: these kinds of systems are not simply image enhancement or restoration tools. They are creating new images based on a best guess, which may look similar but could be challenged from a legal perspective as the result is different to the actual data originally captured. To put it in laymen terms, they are not enhancing pictures, but creating them, based on some hint from initial data.
The tenets of forensic science
Forensic science is the use of science for legal matters. To properly speak about a scientific examination, we have to follow the three pillars of the scientific method: accuracy, repeatability and reproducibility.
If we consider digital images and video, there are countless papers describing very interesting approaches to image enhancement but are not suitable for forensics. They can be very good to enhance creative photography, but cannot be applied to evidence without destroying its value. So, how can an algorithm fail to be acceptable for forensics for each of the points mentioned above?
Accuracy
We cannot use algorithms that introduce some bias, most often because they add new information which does not belong to the original image. This is in contrast with proper enhancement or restoration techniques. While often used in an interchangeable manner, there is an important difference between image enhancement and restoration.
In both cases, in general, the process does not add new data to the image, but relies only on what is already there, just processing according to some predefined algorithms. For this reason, we will never be able to obtain a readable license plate from three white pixels. We receive this request very often, this is what many expect, but we can only show better what’s already in the image or video, we cannot – and must not – add new data into the evidence.
Repeatability
Another category of algorithms which are not suitable for forensics are those which are not repeatable, like those based on generating a random sequence of values to try. However, some of these algorithms properly give very similar (even if different) results in normal situations. So, they may be used with a pseudo-random approach. In laymen’s terms, computers are not actually able to generate random numbers, but only pseudo-random sequences. If we keep the so-called “seed” fixed, we can always reproduce the same sequence and thus always get the same repeatable result.
Reproducibility
Finally, algorithms must be known and all of the involved parameters must be available. We must be able to describe the process with sufficient details to let a third-party person of relevant skills to reproduce the same results independently. So, a “super-secret-proprietary” algorithm is not suitable for forensic work.
Enhancing images for forensic use is not just about trying a few sliders and combining filters until you see something better. Are you confident the images you present within a legal investigation would stand up to scrutiny? And do you have the procedures in place to challenge digital evidence introduced by other parties?
By Martino Jerian, CEO and Founder, Amped Software
UK-based Intelligent Fingerprinting recently announced the availability of its new fingertip-based drug screening system to support Coroner services. The company’s technology detects drug use by analysing the sweat on the tip of a finger that forms a fingerprint, and its non-invasive approach provides a rapid and convenient way for Coroners to screen the deceased for recent drug use.
Toxicology tests are an important tool within post mortem examinations and are often used by the Coroner to investigate drug use that might have contributed to the cause of death. Conventional toxicology tests require the collection of invasive body fluid samples, usually taken as part of the post mortem examination. These are then typically sent away for analysis by external testing laboratories.
With Intelligent Fingerprinting’s new Drug Screening System, however, tests can be carried out within the mortuary from non-invasive fingertip sweat samples that are collected immediately as required outside a full post mortem examination. Sample collection takes just seconds and the system screens for multiple drugs of abuse in under 10 minutes. This provides very early intelligence on drug use that can be used by the Coroner to help prioritise when a full post mortem is needed, and - potentially - enables earlier release of the deceased back to their families.
Based on work initially funded by a Biomedical Catalyst grant from Innovate UK, the two-part Drug Screening System consists of single-use, tamper-evident Intelligent Fingerprinting Cartridges (for sample collection) and the portable Intelligent Fingerprinting Reader 1000 analysis unit. The Cartridge uses lateral flow assay technology and fluorescence-labelled antibodies to selectively detect specific drugs or their metabolites in eccrine sweat collected from a fingerprint.
The portable Reader 1000 is a highly sensitive, robust and effective fluorescence measurement instrument which is used to read the cartridge, providing a positive or negative result for four groups of drugs – amphetamines, cocaine, opiates and cannabis.
Trials have been conducted in three areas - Plymouth, Torbay and South Devon; South Yorkshire (West) and Staffordshire (South) – to evaluate how the system could provide early intelligence on cause of death. Over two hundred fingertip sweat samples were tested for the presence of four drug groups, with the results being compared for accuracy to samples taken with traditional methods and sent for laboratory analysis.
“Our trial results showed that the Intelligent Fingerprinting Drug Screening System can detect the use of drugs prior to death, and revealed a 94% to 99% correlation to laboratory results. This demonstrates the effectiveness of fingertip-based testing in providing Coroners and their staff with valuable drug use intelligence as to the possible cause of death,” said Dr Jerry Walker, Chief Executive Officer, Intelligent Fingerprinting. “In comparison to traditional blood, urine or saliva body fluid tests, our non-invasive fingertip sweat samples can be collected and analysed immediately on arrival at the mortuary. This contrasts with body fluid sample tests that require specialist and hygienic collection and disposal, and are typically only collected and analysed if a full post mortem examination is carried out.
“This ability to gain very early drug use intelligence outside the post mortem examination provides a new opportunity for Coroners and their staff to expedite and direct further investigations and toxicology analysis,” he added. “This early information can be used to inform any further post mortem examinations and toxicology tests, helping the Coroner to prioritise valuable resources where they are most needed.”
To learn more about how non-invasive drug screening works, and how it can become a valuable drug screening technology for Coroner services and other applications, view the Intelligent Fingerprinting introductory video.
https://www.youtube.com/watch?v=uNnqlrUdMG8
(Source: Intelligent Fingerprinting)
Forensic Expert Witness Services of the Year 2016: Lawyer Monthly Magazine
Dr John Douse
BA, MA, D,Phil (Oxford), FRSC, FCSFS, F ChromSoc, MIExpE, MEWI.
I provide expertise in the fields of explosives, gunshot residue, drugs, toxicology, DNA and forensic chemistry. A full account of my casework including comments on my performance by instructing parties can be found @ forensic-expert.org.
After Oxford, my forensic experience included 14 years at the Metropolitan Police Forensic Science Laboratory and the Forensic Explosives Laboratory, 16 years as an independent forensic expert, and 25 years military experience in the reserve (including experience culminating in becoming a Special Forces regimental demolition instructor).
My research pioneered the current methods used for screening forensic extracts for traces of explosives, organic gunshot residue, and date rape drugs, along with the development of methods for the investigation of sexual offences.
Asa result of this research, carried out with my ever more sensitive detection procedures, I introduced, the quality control procedures, involving the use of clean room technology in forensic trace analysis, and which procedures are now used world-wide in all applications of forensic trace analysis (e.g. DNA).
This research culminated in my analyses carried out in the investigation of the Pan Am 103 Incident (Lockerbie), Hyde Park Bombing and Libyan Embassy siege among many other cases.
The edge that I bring to forensic expert witness work arises as a result of my ability to routinely exceed the expertise of other experts.
This is achieved due to: a more comprehensive knowledge of the most very recent peer reviewed literature, my prior research and also practical expertise in each subject, the sheer degree to which each and every case is investigated (described by one defendant (in 2016) who was acquitted, as being “relentless"), and the ability, as a result of long experience in dealing with very complex cases, to produce concise effective reports to tight deadlines, even in the most complex and demanding cases, often where expertise in several different areas is urgently required.
The ability to include the very latest published research results (including those released just before, and even during the trial itself) is often a game changer, as new fresh insights frequently emerge as a result of such novel publications.
I am called upon to provide expert evidence in the most complex and serious of criminal cases (murders, major terrorist incidents, rape, assaults, drug seizures, Coroners inquests, high value insurance claims, HSE prosecutions of companies, repatriations from Syria etc.), and I have also contributed scientific evidence to several major public enquiries. I am often called in at very short notice, when other experts have been unable to assist the Court, and also am instructed by private individuals as a result of their analysis of my performance detailed on my web site.
Since the Lawyer Monthly award, probably one of the best examples of my work in the field of explosives was completed, and which involved an attempted criminal prosecution of a major international defence firm.
In this case, logical analysis and discussion of the evidence with the opposing expert, resulted in all of the referred complaints having been accepted to have been without scientific foundation. This outcome resulted in the saving of many millions of pounds in fines, and where the defence team described themselves as “having been delighted” with every aspect of my work.
What are the most common cases that you deal with in regard to forensic chemistry?
I deal with the most complex criminal cases, (often high profile), where there is a significant element of possible doubt, and where the consequences of being found guilty are likely to attract the highest penalties.
This forensic casework requires extremely detailed analyses of all scientific and circumstantial evidence and which can routinely take anything from 100-400 or more hours work. It should be noted that the analysis of the circumstantial details of cases if often critical in regard of the significance of traces of materials such as explosives, sexual offences traces and DNA. Thus such exhaustive investigations in some DNA cases have resulted in e.g. the finding that complainants may have had unrestricted access to crime scenes between the time of the claimed offence and the scenes of crime investigation.
It is readily apparent, in the cases presented to me for investigation, that if detailed and thorough investigation were replaced by a simple few hours of analysis, and acceptance of the prosecution findings at face value, then it is likely that this could in some cases result in erroneous trial conclusions.
Examples of my experience in such matters are a euthanasia case (2016), where the charge of murder was dropped upon my revealing, at the defence examination, that the presence of a prescribed, very powerful and hazardous drug, (fentanyl), had been missed by both the prosecution study and analysis of the case.
This case also exemplifies the current serious underfunding of the Legal Aid Authority, as one quarter of my fees could not be paid, (i.e. were required to be carried out pro-bono) and which situation should be noted to affect a significant proportion of all of the cases that I am involved in, regardless of the critical importance of my work to the Court in achieving the true and correct case outcome.
A similar example of the need for the thorough examination of the circumstances of every case occurred also in 2016, where a charge of death by dangerous driving appeared clear cut, but was however found, upon further investigation, to have been likely to have been due, in most part, to the very poor state and design of the vehicle, and also where much, if not most, of the drug and alcohol use appeared to have been post incident.
This situation was only revealed by my repeated and careful questioning of the highly traumatised defendant in prison, a procedure undertaken much against the considered opinion of the Court.
A further example of the importance of thoroughness in investigation involved an explosives case, where an estimated 250,000 pages of downloads were rapidly prioritised to 18,000 significant pages, then summarised into three reports (220, 96 and 26 pages each) and where all section 58 charges were dropped as a result of my detailed analysis.
What do you find are the most difficult cases to provide analysis for? How do you navigate these complexities?
The most difficult cases occur where time is extremely short, i.e. when instruction is received just prior to trial or mid trial.
An example of such a situation was a complex case involving chemicals, fireworks, explosive manufacture, cannabis cultivation, and medical cannabis usage by a vulnerable adult. In this case potential instruction had occurred six months before the trial at the Old Bailey, and where the report of another expert, (instructed in my place), was subsequently found to have been unable to assist the Court.
Instruction ten days before the trial (including 1000 pages, three defence visits all over the country, examination of many hundreds of exhibits, and the need to interview of the defendant - 100 Hours) resulted in the preparation of two reports (one involving explosives, and one regarding cannabis cultivation and medical cannabis usage), with the outcome that the serious explosives charges were replaced by a suspended sentence and a fireworks ASBO.
You have years and years of experience in several laboratories, from explosives to police labs; how do you feel this has contributed to your extensive leadership in this legal segment?
The length of experience has led to the ability to very quickly read and summarise vast numbers of pages of case files and downloads (the latter skill often being due to having previously used such downloads practically (e.g. in military explosive trials) or having read and reported on them in previous trials).
The ability and the time (as an independent expert) to search the internet effectively, without fail and in every case, in order to access the most recent papers (these sometimes being published up to the day of the presentation of evidence) and which can influence the trial outcomes, is also critical.
An example was information on the reported occurrence of instantly forming “super dense fogs” nucleating on solid particulates. Interestingly the experience of such instantly forming “super dense” fogs arose out of a prior military experience during a live ammunition training ambush exercise, on a cold November night, and where a rocket flare was observed to have caused immediate white out of the range precluding the ability to engage the targets.
The ability to draft very extensive reports (often in several areas of expertise and which may overlap) and that have the correct balance in regard of assisting the court rapidly is also important, especially when time is very short.
The ability to consider the case details from the view of the suggested intention, (e.g. by ascertaining the optimum ways of administering toxins such as ricin or nerve agents, or the most effective ways of concealing polonium), is also a critical skill and that is highly related to the experience of operating a forensic laboratory, where the possibility of every conceivable toxin or explosive must be considered to ensure that traces are not missed.
The ability to assist Counsel in Court, in a timely, efficient and rapid manner, through the provision of a wealth of challenges during the live prosecution evidence is also critical.
A recent example (August 2016) involved the need to analyse, mid trial, a notebook containing over 700 references to different legal high type drugs, and also herbal and ancient native traditional psychoactive compounds; and which was required to be carried out continuously over a week using a hotel bedroom as an office, with the production of several reports to very tight deadlines.
It should be noted that often the ability to analyse and correlate case evidence from a general scientific point of view is the skill that is required, as the cause of an effect or trace may have an origin that is not obvious to a lay instructing legal team.
Thus an issue regarding the appearance of a pair of trainers in a photograph (carried out on the last day of a six month murder trial) turned out to involve the different light in the photographic studio (compared to the scene at night) causing other patterns to arise by fluorescence (an area of chemical expertise) thus preventing an unequivocal comparison (resolved by repeating the prosecution photography of the exhibits on the last night of the trial).
Similarly an accusation of deliberate murder by poisoning by a care home was revealed to have been likely to have naturally arisen as a result of a pharmacogenetic cause resulting in the victim being unable to excrete the prescribed tranquiliser in question.
In the case of explosives the practical military experience of making and testing improvised explosives devices, (at times when such activity was authorised by the Secretary of State for Defence), having instructed others in the creation of such devices, the rehearsal of the use of such devices under circumstances parallel to those that defendants are accused, actual use of clandestine recipes, and also chemical expertise in the synthesis procedures used in explosive preparation, are all critical to being able to assist the court in such matters.
Over your years of experience what have you found to be the biggest and most impacting changes in technology and infrastructure that have helped your work in forensic science?
By this means the agreed scientific evidence can be prepared for the Court, and can allow the Judge to control the introduction of the agreed evidence to the Jury, in a manner appropriate to each case.
Thus immediate access can be gained, from an office, to all of the most recent publications; even permitting the identification of publications that can reveal new insights that can alter the outcome, right up to the trial date or even mid trial.
This phenomenon can occur in regard of the subjects both in my areas of expertise, and also in areas of significance outside of my expertise; an example, only a few days ago, being the publication of the identification of the mechanism of cardiac death of individuals during defaecation due to use of the Valsalva manoeuvre: a factor in possible alternate explanations of death due to stimulant drug abuse.
It also should be noted that it has now become critical, in this period of austerity, that every forensic expert (who has had the opportunity to read the entire casefile and medical notes, attend defence examinations, and who has had the opportunity to interview the defendant) should realise that they may have been the only scientifically trained person who will ever access all aspects of the trial evidence; and therefore that they should be constantly aware of the need for any significant forensic evidence in any area of expertise that might assist the Court, to be brought to its attention for consideration by other appropriate experts. It should be noted, in this regard, that I am frequently asked to perform this service by instructing Counsel.
Such an example of this phenomenon was the death by driving case previously mentioned, and where questioning of the defendant by myself (additionally in regard of the circumstantial evidence in the case) revealed that the vehicle was seriously under-maintained and possibly ill designed.
This finding allowed the appropriate vehicle expert, who had not had the opportunity to interview the defendant, to further investigate and opine on this new evidence and hence to influence the case outcome significantly.
In this regard the ability to relate to a highly traumatised individual and gain their confidence in order to try to elicit the truth is yet another essential skill of a forensic expert.
It should be noted that while in England DNA-17 technology has been introduced, which provides greater discrimination especially in mixed profiles, the Scottish Laboratory now has deployed DNA-24 which has potentially even greater discriminatory power.
It should be noted that reproducibility of duplicate profiles will need to be improved if human interpretation is to be replaced in part by machine interpretation.
However it should be noted that the need is once more being recognised (knowledge lost on the closure of the Forensic Science Service) that in forensic science investigations, samples must be analysed for every possible drug, and not just for a fixed number of the variants most likely to be encountered.
An example of such a situation was the euthanasia case mentioned above, where fortunately as a result of my thorough study of the case file, and re-interrogation of the electronic mass spectroscopic record at the defence examination, the more likely true reason for the death in this case (the presence of fentanyl) was able to be ascertained, and the murder charge abandoned.
However it should additionally be noted, in this case, that it was fortunate that this was a prescribed drug and thus its administration was therefore recorded.
Such an opportunity in other cases might not be available if an illegal drug was implicated, and where the possibility can be seen to have the potential to exist that a significant contributing toxic compound might have the potential to remain unidentified.
As an expert witness on the array of chemicals, materials, and the impacts thereof, to what extent do you get to engage the full capacity of your expertise?
Every case, however seemingly simple, is unique and must be exhaustively investigated in regard of circumstantial, medical and analytical evidence; in order to eliminate possible innocent factors and occurrences that could affect the outcome of the case.
This requires in every case a reanalysis of the entire literature of the scientific subjects involved, in order to be certain that no new research has been published and that might have the potential to provide new insight into the case situation.
A recent example of this was the publication of a critical new detailed paper on research into the mechanism of TATP synthesis and that was published the day before a report was completed.
In this regard instructing Solicitors and Counsel need to be aware that brief analysis of the case by a lay person can indicate which type of expert to instruct; however an alert and experienced forensic expert can often provide a wealth of other evidence that can often greatly assist the case.
Do you often work alone in your instructions or do you work alongside a team? What are the benefits of this?
Initially I work alone, under guidance by the instructing solicitor and Counsel, as the intensity of the study and work leading up to the preparation of a report precludes team work at this initial stage.
Later e.g. at barristers’ conferences, and also at court in expert witness conferences, the opportunity to work as a team becomes more prominent and assistance is often given to the Court additionally by this means.
Many novel defence strategies are discovered for the first time by myself (e.g. the gunshot residue defence that police cars, personnel and premises etc. had the potential to be likely to have become contaminated by gunshot residue and propellant components, this having been achieved as a result of my multidisciplinary expertise through reading research papers in the field of explosives).
I retain such observations for use when I am instructed, and at this time possess many scientific defences in a variety of disciplines that other experts may have yet to become aware of.
