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As published December 2012 – The Law Society Advocacy Section Newsletter

Are unproven unscientific theories accepted in court?

Clifford Miller, a solicitor and a former university lecturer, considers some family cases where testimony from since-discredited scientific experts has led to injustices, and looks at how the legal system should manage expert scientific evidence.

In our courts, the innocent are sometimes convicted and children removed from parents on the basis of what are presented as scientific theories. Parents may be accused of Munchausen’s Syndrome by Proxy (MSbP), now renamed Fabricated or Induced Illness (FII) (alleged abuse by inventing illnesses in their children), or murder (due to Shaken Baby Syndrome (SBS) or when more than one child dies from Sudden Infant Death Syndrome (SIDS)). What the average family practitioner may not know is the details of the science behind these allegations.

SIDS

In some cases of SIDS, a parent, often the last person alone with their still living child, is accused of murder. The now discredited expert witness, Professor Sir Roy Meadow, a past President of the Royal College of Paediatrics and Child Health, devised ‘Meadow’s Law’: that in a family ‘one sudden infant death is a tragedy, two is suspicious and three is murder, until proved otherwise’ (The ABC of Child Abuse, Gower Press, 1986).

For SIDS, Meadow’s ‘expert’ testimony was that the chance of two SIDS deaths in one family was one in 73 million. The correct position is that a family with one SIDS death is far more likely to suffer another. This was revealed through one of many sad cases: that of solicitor and mother, the late Sally Clark, accused by Meadow of infanticide, and convicted to life imprisonment. Clark was acquitted on appeal in R v Clark [2003] EWCA Crim 1020, after she had served three years of her sentence.

SBS

In the majority of SBS cases, there is no visible sign of external trauma. Experts infer child abuse by intentional shaking based on evidence of a ‘triad of injuries’ in the brain: subdural hematoma, retinal haemorrhage, and cerebral oedema (Shaken baby syndrome, BMJ 2004;328:720–1).

But in alleged SBS cases, the ‘triad of injuries’ alone now cannot justify a finding of abuse, as demonstrated in R v Harris & Ors [2005] EWCA Crim 1980. Additionally, two British pathologists have found that the ‘triad of injuries’ in SBS can occur in children who have died naturally and not through any abuse. Even where there is evidence of other injuries, it may still be inappropriate to allege abuse. Jayden Wray’s parents were acquitted of murder after evidence showed his fractures could have been caused by his severe rickets due to Vitamin D deficiency.

MSbP

MSbP / FII is a theory and not science. It was originated by Meadow, and if such a syndrome ever existed, even Meadow claimed cases were rare. Post-Meadow, in the case of A County Council v A Mother & Ors [2005] EWHC 31 (Fam), Mr Justice Ryder stated:

‘For my part, I would consign the label MSbP to the history books … I would caution against its use other than as a factual description of a series of incidents or behaviours that should then be accurately set out (and even then only in the hands of the paediatrician or psychiatrist / psychologist). … What I seek to caution against is the use of the label as a substitute for factual analysis and risk assessment.’

The need for change

How or why did the legal process fail? Later it succeeded, but only in some cases. Are the legal systems not dealing with such cases appropriately? Or, once such theories take hold, are lawyers dependent upon experts who, like supertankers, change course only with utmost difficulty once these theories become part of their formal published literature? An NSPCC briefing paper (PDF) published as late as 2011 suggests that MSbP / FII is common, rather than rare, and some of the research cited is by publicly discredited experts. Are expert opinions always dispassionate and objective, or are they sometimes ‘unbalanced, obsessive and lacking in judgment’ (as quoted by the judge in R v Harris & Ors)? The theory-dependence of observation shows that experts may tend to fit evidence to preconception.

Evidentially, we need to know what is true. Lawyers and judges must always question all theories underlying expert testimony, no matter how eminent the expert, or how well accepted such theories might seem. If the expert consensus favours such theories, will the Law Commission’s proposed ‘gatekeeper’ function (for English judges to allow only expert testimony which satisfies a reliability test) ever prevent expert injustice? And do we exclude new theories which may be correct but which are not widely accepted?

Clifford Miller BSc ARCS is a solicitor, a former university lecturer in law, Imperial College, London University, and a published academic on complex technical and medical evidence.

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[Originally Published 18 June 2012 – For The Law Society Advocacy Section]

Clifford Miller, a solicitor and a former university lecturer, considers modern evidential practice and some new proposals for evidence put forward by the Law Commission.

If you find evidence, its legal rules and how to apply them confusing, you are in good company. The logic can appear tortuous, but mastering it can sometimes make the difference between success and failure on decision-turning facts.

The problems with evidence are compounded by the growth in and need for complex technical, scientific and medical evidence in the modern technological world. As lawyers, we need to be equipped to deal with expert opinion evidence. An expert opinion can now be decisive on the ultimate issue.

The need for change

The philosophical and theoretical bases underpinning modern evidential practice and procedure in the English courts have long been in need of attention. About 20 years ago in his compilation of exploratory essays, Rethinking Evidence (Cambridge University Press), William Twining made a compelling case for a renewed and new approach to the study of evidence, proof and fact-finding in law, recording how evidence scholarship has been, at best, fragmented and spasmodic. Twining noted how Bentham’s Rationale of Judicial Evidence and Wigmore’s Principles of Judicial Proof rank among the major achievements of our scholarly heritage, yet have been largely ignored.

New proposals

Since Twining published Rethinking Evidence, other writers, including Susan Haack and Dr Déirdre Dwyer have been addressing the same issues. Additionally, the Law Commission proposed last year a new reliability-based admissibility test to be applied to most expert opinion evidence tendered for admission in criminal proceedings. The Commission also proposed a rule that expert opinion evidence is admissible only if the court is satisfied that it is sufficiently reliable to be admitted. See the Law Commission Report No 325 on Expert Evidence in Criminal Proceedings in England and Wales (agreed text 21 February 2011).

These proposals follow from the experience in the US of the ‘Daubert rules’. US judges are now ‘gate-keepers’: they are expected to allow the admission of reliable scientific and technical evidence, and to exclude the unreliable before it goes before a jury. The Daubert rules have had a mixed reception in the US, and raise questions that have not been properly dealt with.

Looking ahead

However, proposals of these kinds are considered by many to be a ‘sticking-plaster’ approach to the underlying issue: the need for better developed skills and knowledge necessary to deal effectively with complex scientific and technical evidence in court. And achieving that aim clearly remains some way off.

Clifford Miller BSc ARCS is a solicitor, a former university lecturer in law, at a College of London University, and a published academic on complex technical and medical evidence.

The reforms of the Family Court unveiled today by Mr Justice Ryder are likely to be a case of re-arranging the deckchairs:-

Inquisitorial judges at heart of family reform proposals Tuesday 31 July 2012 by Catherine Baksi

The longstanding problems with the Family Court will never change until control over the Court and its cases is taken out of the hands of Judges appointed from the English Bar and out of the control or influence of their colleagues at the English Bar.

The Family Court has a reputation amongst the public, practitioners, politicians, expert witnesses and journalists for administering injustice. Ryder reform plans will likely not bring about change to that reputation.

We need a new system to break up the incestuous organic and social relationships behind the English Bar’s system of Barristers’ Chambers and appointments to the Judiciary – mainly from its own members.

There is an unhealthy relationship between the Judges, predominantly from the English Bar and their friends and former colleagues at the Bar who appear before them. They in practice control most of what takes place. The problems with the Family Court are systemic and organic. So it is unlikely any judge appointed to deal with the problems will ever go to the heart of the matter.

The Family Court is and will continue to be a Court whose Judges fail to observe basic principles of procedural fairness and justice. The long abandonment of pleadings means issues are introduced on spec in Court instead of being defined in advance. Litigants can be and are taken by surprise and faced with a litany of invention and accusation introduced “on spec” during the course of a case which they have to try to answer and when least fitted psychologically to do so.

This is at the culmination of a long process during which they have been softened up by unpalatable conduct of some lawyers and when they have been are subjected to considerable stress, not knowing what invention and accusation they may face at the next hearing before the trial.

The position is compounded by the Judges of the Family Court who appear to do nothing whatsoever about improper litigation conduct by the lawyers who appear before them as Officers of the Court and who may be their former colleagues, current friends and social peers.

It is a Court system which rewards the wrongdoer and punishes the victim. Those of the lawyers who fail to observe accepted standards of conduct in Family Court cases and routinely act in contravention of their obligations to the Court and under the rules of Court go undealt with, save to the extent they are rewarded with the outcome they seek by such conduct.

The worst aspects of course are when it comes to children and the false evidence presented by social workers from some local authorities and the consequent cases which some members of the English Bar present. There has long been complaint about these abuses and nothing has been done. Ryder will never address that. The litigants cannot do it – it is the lawyers who do it for them and the Judges who make it all happen. And the Judges just let it go on day in and day out.

The Family Court thus operates and maintains a Cheats Charter. Under the auspices of the Court wrongdoers who play the system and break the rules are rewarded and victims of that wrongdoing punished. The Judges do nothing about sometimes rampant impropriety taking place daily within the walls of their Courts and even under their noses. And nor do other members of the English Bar despite it being their duty to report it.

Regrettably of course it is a self-perpetuating system in that those members of the Bar who do operate unscrupulously and unlawfully may eventually be recruited to the ranks of the judiciary. Not all members of the English Bar behave improperly and likely many or most do not, but one too many do and they are allowed to get away scot free by their colleagues and Judges alike. The public as always pay the price and the lawyers collect.

We could clean up litigation in this country in six months if improper conduct were to be dealt with at source at the time in the Court. With the current social and other relationships between Judges and the English Bar that will of course never happen.

We can see from the report in the Gazette yesterday that the claimed high ethical standards of the English Bar are a myth, which go unpoliced by any effective system of regulation:-

“Review slams ‘systemic failures’ in bar’s disciplinary system” Monday 30 July 2012 by Catherine Baksi

Solicitor Judges and Solicitor Advocates are a step forward in breaking up this cosy insidious cartel in British justice controlled by Judges appointed predominantly from the English Bar and by the Bar. But that is hardly even a pin-prick on the carbunkel.

The Bar Council better start looking at its own ranks before it has any standing to attack the only relatively recent phenomenon of Solicitor Advocates.

The pictures here are of road closures signs officially placed in London for the 2012 Olympics saying “Ha Ha Road Closed”.  Olympic Road Closures took effect from today.   These signs were last week at a junction near the The Royal Artillery Barracks in Woolwich South-East London which is hosting Shooting, Paralympic Shooting, and Paralympic Archery at the London 2012 Summer Olympics.

Road closures will cause significant traffic disruption for Londoners.  Last week similar pictures were touted to The Sun and Daily Mirror newspapers but were not published.  By today the signs have gone – no doubt someone realised the potential public relations impact.

Click on the pictures to seen an enlarged version in a new window.

More information on road closures can be found on Get Ahead of The Games website.

Not even the fictional CSI Captain James (Jim) Brass (Paul Guilfoyle) of the Homicide Division who works with the CSI team and Dr. Gilbert “Gil” Grissom, (Ph.D.) the fictional star character of the original CBS crime drama CSI: Crime Scene Investigation, have done anything like this in less than 24 hours in one of the shows in the successful and popular US TV series, screened also on UK TV screens.

Late last night in a London residential area, acting on detailed information received of a suspected burglary involving the suspected theft of electronic equipment from a London residence, New Scotland Yard’s emergency call centre responded rapidly to calls with the despatch of Metropolitan Police officers in three patrol cars with uniformed officers to seek out the fleeing suspects.

With the assistance of information from the public, and despite rapid flight in the dark of the night and cunning and evasive tactics by the suspects to avoid detection and CCTV, the officers executed one or more arrests of suspect(s) within hours and were processing the paperwork for the case within much less than 12 hours!!

Well done Old Bill.  Smart work.

And US CSI scriptwriters, you really must beef up your scripts.  Mr Plod over here and Inspector Knacker of the Yard are ancient history.   Even your fictional TV crimefighters are not as quick off the mark as the real thing over here.  Maybe you should start watching the UK TV series “The Bill” to pick up a few tips from Sun Hill police station, in the fictional “Canley Borough Operational Command Unit” in East London. Ha!!

This blog is making no suggestion that any apprehended suspect is a perpetrator of the suspected burglary.  Innocence is presumed until the contrary is proven to the standard of beyond a reasonable doubt.

No further details can be or will be provided.  Sorry folks.  You’ll just have to read about it in the papers [maybe] one day, if at all.  That is up to “Old Bill’s” press office or a lucky local journalist being in the right Court on the right day, if charges are brought and pursued by the Crown Prosecution Service. 

POSTSCRIPT 2/Apr/2012:  The case was in the local magistrates Court on the Thursday morning.  Tuesday night to in Court on Thursday morning must be something of a record for a burglary?


THIS POST WAS MADE IN 2012 AND HAS NOT BEEN UPDATED SINCE THEN – HOWEVER THE LAW IS NOT THE SAME IN EVERY COUNTRY AND IT DOES CHANGE SO DO NOT ASSUME THIS STATES WHAT THE LAW IS WHEN YOU READ IT.

If you thought it was OK to display an image  on your blog or website which you have never copied but include by including a weblink to the image on someone else’s website [embedding] then think again.  You could be made liable for damages for copyright infringement.

At least that is the case in Germany today according to the Dusseldorf Court of Appeal [8 October 2011, I-20 U 42/11].  Embedding content now appears to be copyright infringement by making the content available to the public on your website even though you have never taken and kept a copy of the image yourself and even though the image is never “physically” part of your website.  The Dusseldorf appeal court overruled the lower Court of First Instance.

The Defendant in the case had included links on his blog to two photographs which appeared on the Claimant’s website.  No prior permission had been sought or obtained.

This is a completely different case from that of simply including a link on your blog or website to content which only appears on the site to which you link.  Mere linking is not, in Germany, copyright infringement but obviously the person viewing cannot view the linked content on your site or blog but must follow the link to the original site to do so.

If you want to avoid problems with your money and bank accounts, the message has to be “don’t use Direct Debits and don’t let anyone, not even a company you think is reputable, have your bank account details and don’t trust your bank to be honest“.  It is clear that as automated payments go, Standing Order is by far the safer bet where you have full control over what is paid out of your bank account.

And does this also sound far-fetched:

National Westminster Bank plc, in particular, part of the Royal Bank of Scotland Group of banks encourages Direct Debit scams and enables fraudsters to take money out of your bank account with non-existent Direct Debits.  And when the problem occurs they do nothing to prevent a recurrence.  NatWest appears to have no anti-fraud measures regarding Direct Debits and appear to care even less about this problem.

In fact it is not far-fetched and has been going on for a number of years.  The problem of Direct Debit fraud is extensive according to research by Liverpool Victoria Insurance which reveals that over 97,000 Britons have fallen victim to criminals setting up fraudulent direct debits from their accounts.  An average of £540 goes missing before the customer notices.  Direct debit payment fraud in 2010 accounted for around 10.6% of all identity fraud cases.  The extent of Direct Debit scamming is set to grow to 41,000 cases a year by 2013, equating to a 57% rise.

But that is only part of the problem.  And it is not just “criminals” but what many decades ago might have been considered “reputable” organisations.

It appears that if you have issued a genuine Direct Debit instruction which is later cancelled – so that there is no longer any  Direct Debit – money can be and is being taken from bank accounts just like yours under the non-existent Direct Debit.

The research shows that in 2009 £385 million was taken from customers’ bank accounts with obsolete Direct Debits.  For those customers who find out, it takes them on average four months to notice and its cost around £190 each time.

No figures or estimates were provided for what this costs customers who do not notice.  However, it is clear there is substantial number of people losing considerable amounts of money annually because the obsolete Direct Debit is neither noticed nor recovered.

So how can you not notice?  Only one in five customers (21%) confirmed they check their balance once a month.  The average customer who does notice takes 4 months to do so.  For cases where the loss is noticed but accounts are not checked monthly they lose 10% more [£611 compared to £540 for those who check their bank statements at least once a month].

Another reason this is not noticed by consumers is that some Direct Debits are annual and for small amounts which do not get picked up and corrected.

And is that the end of the problem.  No chance.  When you contact the bank they will tell you you must contact the company who took the money out of your account to agree cancellation of the Direct Debit before you can get a refund.  That is wholly untrue.  The express terms of the Direct Debit scheme are that you only need to contact your bank to cancel the Direct Debit.  Once it is cancelled it legally no longer exists – there ceases to be a valid Direct Debit.  You only need to contact your bank and no one else.  The binding legal contractual provision binding on all parties provides:-

…… If an error is made in the payment of your Direct Debit, by …… your bank or building society you are entitled to a full and immediate refund of the amount paid from your bank or building society. ……..

You can cancel a Direct Debit at any time by simply contacting your bank or building society. Written confirmation may be required. Please also notify us.”

And is that the end of the problem?  No chance.  That previously annual now non-existent cancelled Direct Debit for £85.00 can still be used to take money out of your bank account for years to come or even sporadically some years and not others.  It is a crooked company’s dream. If they do this and it is not noticed they gain.  If it is noticed you get your money back after your time is wasted but the same company can do the same thing next year and the next and the next.

And is that the end of the problem?  No chance.  In the case of NatWest they do not even check to ensure there is any Direct Debit at all before taking the money out of your account.   The UK’s National Westminster Bank plc, part of the Royal Bank of Scotland Group of banks may not be the only bank which is encouraging Direct Debit fraud but it is one where it is now clear there are no controls against anyone setting up Direct Debits on your NatWest account nor against repeatedly doing so.

Here is what happened to a NatWest business customer in Wales:-

Snowdonia Tourist Services hit by fraudsters  by Dan Beavan, Daily Post Apr 27 2009

A TOURISM agency lost hundreds of pounds after fraudsters set up fake direct debits to take cash from its accounts.  …..  Hefin and Marian Williams and their daughter Gwen Thomas, 48, were shocked someone had managed to set up the fake direct debits  ….  they say they’ve been let down by the authorities and have been left with no protection against the same thing happening again …..

Angry Gwen said: “It would appear anyone can do this without us authorising it.   If I want to speak to my bank I have to answer eight questions, yet they let just anyone set up direct debits on our account.  If you notice an odd direct debit and ask the bank to explain, you’re given the phone number of the company to start sorting it out yourself.  Once you’ve convinced that company that you’ve not set up the direct debit, you have to phone the bank back to arrange an indemnity refund.  After noticing a number of fraudulent debits on their account this month and last, Gwen said NatWest told her she “shouldn’t worry” because they were protected by indemnity.  Gwen said: “But that’s if you notice someone has taken money in the first place.”  She’s asked the bank not to allow any direct debits on their account – but the bank said it couldn’t.

A NatWest spokesman said: “ …. It’s not our practice to advise customers when a new direct debit is set up ….”

The writer of this blog item has banked with NatWest for some years and has direct experience of this problem.  Every year for over 8 years NatWest has been allowing an organisation to take money out of a business account with a non-existent Direct Debit.  It may only be a small amount of money but it is only picked up because of accounting procedures and it takes time every year to sort out – and time is money.

The overall problem of course is the steady and continuing erosion of ethical behaviour in leading financial and governmental institutions.  If the Board Directors of RBS or NatWest or their children or other relatives become the victims of crime or do not like rioting and looting like that seen recently on London’s streets, they are in no position to complain.  They are setting the moral and ethical standards and the ethos which others copy in one way or another.

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