The fascinating role of the court Expert Witness;

Old Baily under CCTV

Old Baily UK

 

Purpose – This article seeks to provide an insight into the work of an expert witness working in drug trials in Crown courts.

 

Design/methodology/approach – The approach is a case study of a single expert witness, drawing on experiences over several years.

 

Findings – The evidence produced in court is subject to the personal limitations and organisational constraints of the experts involved. Prosecution often relies on unreliable and secretive sources. It is important to increase transparency and for a robust challenge to be made to some claims. Many experts are former police officers who are rarely objective or neutral, hence the need for independent experts from within the field.

 

Research limitations/implications – Personal experience cannot always be generalised so limits the information presented in this case study.

 

Practical implications – The role of expert witness is a career development opportunity for people working in the drugs and alcohol field.

 

Social implications – It is important to understand the subjective way in which testimony and evidence is produced.

 

Originality/value – This paper gives a rare insight into a key aspect of the legal process

 

NOTE from BP:  Here, Gary Sutton, Counsellor in the NHS in Central London and is also Head of Drugs Services at Release, London, UK, treads the fine line of specialist expert on drug related matters appearing for the defense, in drug trials. His role is to be objective and knowledgeable and to present accurate information in a field where there is a huge amount of misinformation and partial truths, not to mention old unchallenged information; for example; just how much heroin could someone reasonably claim is personal use before it is deemed intent to supply? Gary will shed the right ind of light on the matter. This is a fascinating look into the role of the Expert Witness in drug trials –  and what whom you can now request to appear in court to shed some common sense and insight into drug culture and thus shed light and sense about your court case…

 

Partial_confessions Gary (1)

 

Being an expert witness

 

An expert may be defined as one who has specialised knowledge by education, training, experience, or skill (Moses, n.d.).

 

I’ve never had a problem with drugs. I’ve had problems with the police (Keith Richards).

 

While the organisation I work for (Release) has a long tradition of providing expert witness (EW) testimony at Court, it was never my intention to follow this path. I suppose, looking back to 2002, that I was nervous, a bit intimidated by Courts, and under the illusion that the knowledge I had would not be applicable in that such a setting. After all, with a couple of external sources contracted in, previous Release EW’s had been lawyers who knew a bit about drugs, not drug workers that knew a bit about the law.

 

Being an EW carries a heavy responsibility; in the majority of cases I have undertaken, the quality of my report, or the quality in comparison with what is offered by the Expert retained by the other side, if one has been retained at all, has been a major contributory factor to the outcome. So while the role of an EW is subordinate, the influence we have can be pivotal.

 

Although there are many EWs in many fields, my registered expertise at The EW Institute is; drug use and addiction, the street drug market, drug valuation and drug culture and, on the whole, I find it’s an area that is very poorly understood. I have attended lectures at important conferences, or on prestigious academic courses and been shocked at the woeful lack of awareness displayed by quite distinguished speakers. Often, I find they allow themselves to stray far beyond their knowledge base. I would also have to say that the range of reports I have read from other experts, be they independent EWs, academics, psychiatrists or police officers, ranges from the excellent and inspirational to the totally and depressingly deficient.

 

If you have been working in drug treatment for 20 years, you may well describe yourself as an expert on drugs and, if asked to address an audience on methadone substitution therapy, the chances are you could do a sound enough job, providing you stuck to your experience and the facts. Then again, if you were asked to speak on “phenethylamines, research chemicals and the future of recreational drug use” perhaps that would be outside of your knowledge base. Of course, you could say, “I can’t really do this one, sorry”. An EW could do the same; he or she could tell the lawyers handling the case, “Not my thing, try Mr X at XYZ associates”. But, the next time that firm needs an expert, if X is really good, will they go there first?

 

There is of course, an element of ego-gratification in being labelled “an expert” and having a shiny certificate to hang on your wall. In fact, it is legitimate for EWs to step outside their specific experience and use the research and evidence base to inform their opinion, but perhaps the opposing Counsel, when the case comes to Court, will take you gently through your statement preamble and qualifications and, having set you up, with “And you are an expert on what are called ‘legal highs’ as it suggests in your statement, Mr Z/Officer? Yes? Good” then gently inquire… “Just to clarify, Methylone, the drug in this case, can you tell the Court, approximately, its ratio of affinity for the serotonin transporter, in relation to say…MDMA?” This is what might be called the “Co-efficient of Expansion of Brass Opening Gambit”[1], after the question used to unsettle an EW in a murder trial case many years ago. The Expert was a vehicle engineer and Counsel wanted to undermine him (R v. Rouse). Of course, if you know the answer, at best the Jury will probably think, “OK, he’s competent”, if not, “That’s not much of an expert”.

 

If you are employed at one of the companies, or an individual practitioner that the Crown will sub-contract to write reports for them in drug prosecution cases, you will probably have strong contacts with local police (and part of your contract may be to offer lucrative training to officers) and consequently you are faced with the same dilemma, but magnified. I cannot help feeling that this is a situation that many serving officers who have an interest in EW work face regularly as the range of drugs that people are using continues to grow. The police have certainly strengthened their EW profile over the last few years (as my “first case” example will show), but as I will argue, whether this is qualitative and quantitative, and whether it is beneficial, is very doubtful. It is part of the thrust of this essay that the notion of using people with too strong a connection, by employment status or affiliation to the prosecution to provide EW testimony under a declaration of neutrality has the inherent capacity to undermine the independence of the justice of the testimony.

 

It may be that experts, or people who purport to be sufficiently knowledgeable on “drugs”, should be prepared to ask themselves – “Am I really an expert on this facet of the subject?” It is our role, as EW’s to explain in a sworn written format matters of specialised knowledge relevant to the proceedings that would not be known to a Jury and to back it up with examples from our work or the research and evidence base.

 

In drug cases it is nearly always the instance that a forensic sample will be required to show the drug is a drug (an exception would be a “conspiracy” charge where no drugs are found) and it should be analysed and identified in line with the Misuse of Drugs Act (MDA, 1971). Strictly speaking, there should be a certificate that includes the purity level of the controlled drug expressed as a percentage in the certificate. (In [R v. Jones (K.), 161 J.P. 597, CA], Richardson, 2008, p. 2495). With resources being scare at present such an analysis is unlikely to be requested unless the seizure is considerable, in which instance a Proceeds of Crime Act order can be made to recoup monies.

 

Under the Civil Procedure Rules (CPR) 1998, an EW is required to be independent and address his or her expert report to the court. Under the CPR, EWs can produce a joint statement detailing points of agreement and disagreement to assist the Court. These meetings between EW’s from both parties (although all have an overriding duty to the Court) try to investigate and establish points of commonality or agreement. My experience of these is moderately positive; I find many Crown EW’s will give quite a lot of ground on matters of potential consumption, usually because I bring along my references, so a comment such as, “I have never known of a heroin user taking one and a half to 2 grams a day”, may become “it’s possible”, and will be written up something like; “The EW’s agreed that at average purity, by burning on foil, using as much as 2 grams of heroin per day is plausible. But the majority of users will consume much less”.

 

That last bit, while obvious, is often added as a concession. These are often necessary. EW’s do not, in my experience, like giving too much ground without some compensation. For example, if the 2 grams user is accepted, so too is the £80 per day habit (and the Crown will ask, not unfairly, “where does that money come from?”). The majority of cases of “possession with intent to supply” charges that are contested by the defendant, or accepted on “I wasn’t making any money but might have given my girlfriend some” and not accepted by the Crown Prosecution Service (CPS), seem in my experience to succeed or fall on whether it is possible that the defendant could have consumed the level of drugs he claimed to consume on the legal income available to him or her. Of course, the Jury should be sure, “beyond reasonable doubt” and there are income generating lifestyles that operate in a “grey” world, such as the sex-trade or cash in-hand building/painting, etc. that are hard to prove, such there is often difficulty in producing complete invoices and letters for untaxed work or “services” from clients. Too long in Court can make a person quite cynical about the human condition.

 

Some strange ideas

 

I recently received a report from a police officer that wrote about the heroin situation in the UK in the winter of 2010. There was a direct accusation that the defendant intended to supply and no mention of the heroin shortage. It was a “cut and paste” containing a pro-forma that, I assume, is available from in-house training with four paragraphs added to the end, listing the exhibits and an opinion that this quantity was much larger than “was required for personal consumption”:

 

“What! More heroin than a junkie requires?” – that is a strange notion.

 

Clearly, this is a subject that could be debated at great length and there would be any number of variables that may affect an opinion, but surely “more than required for personal consumption” is not adequate. While on the subject of personal consumption it may be that the vast majority of cases may be about making a Jury, or a Judge in a “trial of issue” or “Newton” hearing fully aware of all the particular considerations they will need to consider in deliberating over a verdict. For example, I have found Crown experts rarely bother to consider opiate substitution therapy or antagonistic drug interactions in their reports.

 

I have written reports in cases where what would be considered, on paper, without a context, to be very large quantities of drugs that a Court has accepted is for the holder’s own use and on the other hand I have also been involved in cases where less than a “street” unit, or a single deal, was deemed as having been supplied. It may not be about quantity. Too frequently, the notion of “excess” is not investigated. Too frequently, the idea that a quantity of drugs is more than a person may need is not robustly examined. One statement that seems to be evidence-based that I have seen quoted and referenced in reports is; “The average length of time that users would be in possession of most controlled drugs was less than three days”.

 

While this may have been the outcome of a particular piece of research from a particular cohort to remove it from that context and put it in front of a Jury as an objective truth seems less than entirely honest to me. I have lost count of the number of times I have suggested a Jury might do well not to impose too much of their own logic into their understanding of addiction.

 

There is an inherent problem with over-reliance on phenomenology – how we understand the world from what we have perceived, or a consciousness as experienced from the first-person point of view. I can recall appearing in a case where an experienced police officer stated to the Court that she had many years service and did not believe that heroin users used more than 1 gram of heroin per day. Perhaps the users she spoke to did not.

 

I am also unsure of level of understanding of sub-cultural norms that the criminal justice system can embrace while the Misuse of Drugs Act remains in its current form. The most relevant consideration in most of the cases that I have been involved in is around the acceptance and denial of “intent to supply” charges.

 

Nearly everyone who uses an illegal drug will “supply” by the current definitions of supply, as in-passed a joint or given someone a line at a party, or “helped” a friend in “withdrawal”. I have lost count of the number of cases, where cannabis in relatively small amounts is involved and “would you have given any of this to someone else?” is answered under oath as “No”. The idea of truth, reliability and congruence is theoretically breached from here onwards. Surely, this cannot be in the best interests of any justice system.

 

So, defendants’ editing of the truth (and many defendants will not admit that passing on a small amount of drugs in their possession is “supply”, as they do not see themselves as “suppliers”) is frequently countered with prosecution EWs (cut and pasted from the original source), making statements such as:

 

The average length of time that users would be in possession of most controlled drugs was less than three days (the reference for this was the original author’s own research, which was not published, but has appeared quoted in my cases on half a dozen occasions, by other Crown EWs).

 

Would the readers of this article deem that a cut and paste from an unpublished piece of research that suggests, “When the participants in a recent study were asked, ‘if you were caught with a large amount of drugs would you exaggerate your personal use to avoid being prosecuted for drug dealing?’ 93.2% of the participants answered yes” [unpublished data], supports the proposition that users can be less than forthright, or is it an exaggerated generalisation?

 

Both these statements come from the same author. So, is this balancing the defendants’ own disingenuous self-definition, is it irresponsible-biased testimony or is fair comment?

 

The recent judgement in R v. Auton may have tried to clarify this from a purely legal position:

 

When considering the second group of cases, care needs to be taken with the oft-used expression “social supply”. This seems to us to be of little use as a definition for sentencing purposes because it covers a wide range of activity. In a different, but related, context, two friends who make a joint purchase of a small quantity of drugs for their evening out together will often be involved in a supply, one to the other, in a social context, but it may be a wholly technical supply and it may be possible to treat it essentially the same as possession. More serious is the man who makes himself the purchasing agent for a number of friends, also likely to be labelled “social”. Some way removed from those situations is the drug dealer whose customers are friends who buy from him. In his case neither the fact that they are friends, nor the fact that they are existing users of the drug will normally provide any significant mitigation. Most drug purchasers are existing users; that is why they want the drugs. It makes good sense for a drug supplier to deal with friends whom he can trust rather than with strangers he cannot… Even at the lowest level of supply as part of hospitality to visitors (not amounting to creating the cannabis equivalent of a “crack house”), the cultivation is further widening, and socialising, the use of an illegal drug and making it available in circumstances where the risk of detection is reduced. A combined venture to cultivate for a group of associates sharing the cost involves supply and is usually more serious than the case of hospitality. All supplies make the offence more serious; there is a sliding scale of gravity[2].

 

A typical scenario

 

(Based on a number of “true stories”).

 

A guy is stopped in an area well known for the casual availability of cannabis and heroin/crack. He has 30 individual bags of “bud” (a.k.a. “skunk”) cannabis. He has £100 in notes on him and has been standing on a corner by the station, observed by police, for 15 minutes. He has approached a few people and appears to be taking calls on his mobile. They describe his behaviour as “suspicious”.

 

He does not have a job, he says he is a student, after arrest the police may have searched his address; there are sums of money and some suspicious lists with sums and empty “baggies” around his room, under his bed and a Blackberry, with messages that contain references to drugs.

 

He tells his lawyer he has been left some money by an auntie in her Will the previous week and arranged to meet an ex-girlfriend from college, but when he gets there he is not sure if he is in the right place. He is tried to get an ounce of herbal cannabis earlier, but it is all bagged up and the dealer says “OK, you can have an ounce for £220, but it’s in gram grip-sealed baggies”. He did not have time to take it back home so he stuck it in his jacket. When he arrives in the town he is not sure he is in the right place and asks a few people if there is another exit to the station, but a couple ignore him and a couple are not sure. He rings the girl, but her phone is engaged or cutting to answerphone. There are a few texts that might be references to drugs found by the technical engineer when it is seized and examined at the lab. He does a “no comment” interview under instruction from his solicitor.

 

In such a case we might be asked by his solicitors to look at the case papers. These will be statements by the arresting officers, a forensic scientist’s certificate of analysis, a transcript of interview under caution, a technicians report concerning the phone and the statement of a police EW. The degree of expertise, as I have suggested, is hugely variable. Such a scenario may or may not be robustly prosecuted by the Crown, and much will depend if the accused has antecedents, and if these can be disclosed to the Court, particularly related to drugs. In the imaginary case I have described, the nature of the circumstantial evidence may be quite prejudicial to the defendant, but generally it would be a case where I would have no idea of whether the defendant’s version of the events was accurate (or objectively honest, a matter that provokes additional conjecture if anyone is potentially under the influence of a drug/s) but I would fully expect the burden of proving their case beyond all reasonable doubt to present the defendant with an opportunity for acquittal. In many cases I have been involved with this may rest on how the defendant presents himself to the Court. In any event, the role of the EW is not to make a judgement on innocence or otherwise, it is to assist the Court to understand the issues. The EW should concern his or herself with the quality and clarity of their input only.

 

A few weeks ago I was talking to an independent expert, a very experienced and knowledgeable man, who was speaking to a police EW who had written a report in a case he had worked on. My friend suggested to the officer that his statement was not up to much, the officer said that as he was covering a large geographical area, he was preparing or completing seven or eight statements a day minimum, it was the best he could manage. As I take an average of six or seven hours in each case to read the papers, research the background, read and print out the references, draft my response and then set it out, this strikes me as the nightmare scenario. Not only for the officer who is dashing out seven a day, but the system and, most crucially, the defendants.

 

Two years ago, Release was asked to put in a tender to write EW statements for a local police jurisdiction and by one of the biggest criminal defence firms in the country more or less at the same time. If you write for an organisation there is a terrific pressure on you to get the result that agency wants: the people who have done the preparation earlier in the case are looking on you to bring in your special skills. Their reputation is in your hands. It is not a recipe for impartiality, but then all firms and agencies expect you to win. So what do you do? Where does your duty lie? The law and the EW Institute are clear; your duty lies to the Court and you must be impartial. To be frank, are the statements I see written by police officers, for the most part, impartial? I cannot say that I think they are. This is not the same as saying the writers set out to mislead the Court, as I have said, I think it is as a result of trying to reconcile two roles that are almost at odds with each other, that of a law enforcement officer, and that of an impartial expert.

 

Declaration

 

Here is a standard declaration where an EW sets out an awareness of his or her duties and responsibilities.

 

“I am aware of the Code of Conduct for Expert Witness” and can state that I understand that my duty in producing this report lies to the Court and that is rooted in my experience and the relevant literature, evidence and research of which I am aware. As part of my duties I keep abreast of the evidence base including subscribing to specialist publications and attending conferences. “Should I encounter any material that causes me to alter my opinion including submissions from either party to the Court then I will inform the Court in writing at the earliest opportunity”.

 

I once became involved in a case where a police officer had been part of a surveillance team in a large operation, had searched the main defendant on the street, under another pretext, been part of the arrest team and interviewed him at the station after his arrest. The same officer submitted an EW report on the drugs market and interpretation of text messages at trial. I was astonished that this was allowed by the defendant’s solicitors, as with the best will in the world no human being could be so involved in a case and be dispassionate. Of course, the officer could submit all the statements he needed to, but under that declaration, surely not?

 

How should anyone attempting to be impartial react to a statement that they think is prejudiced? By criticising it and pointing out where its bias lays? My experience of this is that there is an oppositional dynamic generated here which, in itself, at least unconsciously creates hostility and perhaps a tendency to compensate. To what extent can any of us be completely objective, in an adversarial system, around a subject as emotive as addiction? I think that, from experience most of the officers I meet in the course of my work would say the same of Release, that there is an organisational ethos and my EW is an extension of that. Of course, I would not agree.

 

A colleague of mine, an independent EW, recently decided to embark on a day of continued professional development by pitching up at the Association of Chief Police Officers conference. While some might debate the relative merits of this choice among the range of career adjunct options available in such a field, he seemed certain that this would offer value for money (it was, after all, free) and there were two presentations discussing the role of the police expert in Court. However, despite an ambivalent welcome from the officers (“Ah, Mr P, what are you doing here?”) and while I only have my colleague’s word for what transpired next, it seems consistent with the suggestion that some police officers regard EWs that take defence cases with suspicion and hostility. It may be that the increase in the number of police experts largely obviates the need to instruct independent EWs, at least as far as the prosecution is concerned.

 

Anyway, the officer continued, by leaning towards my colleague:

 

Four grams.

 

Sorry?

 

We’ve noticed that a lot of defendants are claiming that they use four grams of cannabis daily.

 

Do they?

 

We were wondering where they got their figure from.

 

I’m really no clearer, what you are getting at…

 

Well we think someone is telling them to claim an ounce a week as personal consumption.

 

So, it appears that the Association of Police Controlled Drugs Liaison Officers, which forms an “apollo” graphic; a bit of a set-up for jokes about narcissism and misrepresentation of material), the EW group within the police force, who maintain their own information storage system and blog-site, have the idea that independent EWs not only favour the accused, but actively go around advising “defence lawyers” to tell their clients, when arrested with quantities of drugs, that they use a certain amount daily to beat supplying charges.

 

Not only would this be illegal, it would be, on a practical basis, quite impossible and supposes that there is a resource for the dissemination of such dodgy advice.

 

Additionally, my colleague found, much to his frustration, that the session on EW was “restricted” – in other words, non-law enforcement personnel could not attend. It was a wasted journey and a bit of a public relations disaster for the police. If one looks at the material in their training programme, I see no reason why someone outside the force should not attend. The free flow of information is vital to the functioning of the justice system. After all, a healthy debate and honest exchange of views is crucial to a robust understanding of any subject worth studying. It would seem, however, that not everybody agrees.

 

The information held at the price and purity database is deemed so sensitive, Serious Organised Crime Agency (SOCA) only interact with the forensic testing agencies who supply them with purity data (and disseminate to “partner agencies” such as TICTAC and EMCDDA) and the information they get in from the regional police forces is carefully guarded.

 

The difficulty of trying to present an up-to-date report when the data is not available must be apparent to the reader. I have had three cases this year (2011), when the average purity of a deal has been misquoted in a report and had I not collated all the information gleaned from previous reports, it would have been impossible to correct the source, which would have compromised the integrity of the evidence in court.

 

An example of this occurred in a case last summer in which it was suggested that the average heroin purity (of an estimated half a dozen regional samples) in the last quarter of 2010 was “classified police intelligence”. I informed the defence’s Barrister that it was vital to the case to seek full disclosure of the (forensic/pricing) data being quoted, but the trial Judge agreed with the Crown’s application that it should not be revealed and this now largely academic dot on the SOCA database will stay a state protected secret. As an EW, just to clarify, I cannot directly petition the Court for disclosure. If I find a problem with the evidence, I should notify Counsel or the instructing solicitors who will make a decision on the importance or relevance of the point I am trying to clarify. The FSS/LGC and SOCA data is so guarded that it has been suggested that disclosure may well reveal a less than perfect methodology and subsequent embarrassment for those who insist that the material is robust.

 

I attended a case in the Midlands a couple of years ago when the Crown relied on the price and purity supplied by SOCA in a complicated supplying case; as I disputed it, or that part of it that was being relied upon, the Judge ordered that the source was fully disclosed. Despite having sat down with the Police EW earlier and agreed most of the points in a joint statement, this remained a sticking point. Interestingly, after much deliberation the Crown agreed to a lesser charge, which prevented the need to disclose. I cannot be sure that this was the sole reason for agreeing to let the client plead and accepting it, but I cannot see any other reason for the sudden change in tactics.

 

In another case at a Northern Crown Court, the drugs (herbal cannabis) were valued by the police EWs at number of grams × the individual gram cost. This was defined in subsequent deliberations as a “maximum realizable street value”. Those deliberations included in no small part, the evidence of the officer that the drugs were not seized in gram wraps and that herbal cannabis is widely available to be bought and sold in different quantities all across the UK. When the EW was cross-examined in the Court as to why this information was not in his original statement, he said he had set out the equation in that fashion because, “that’s how we are told to do it”. “By whom?” asked the Barrister, sensing an opening, “On the Police EW training course”, he answered. The Court does have the right to know the value of any drugs that are part of a case, but the range of “value” possibilities should depend on the evidence, not a slavish adherence to a pro-forma from the police in-house training school.

 

Experience in international smuggling cases

 

In order to give reliable testimony in a case, one will ideally have some experience in the matter. When that matter is the intentional narcotic trade, it begins to get complicated.

 

“The dummy run case”

 

I recently had to write a report for a case where an individual was charged with supplying a huge quantity of heroin. In weight seized it would have been equivalent to one of the biggest seizures of heroin in the UK in recent history. The main difficulty was that it was not heroin. It was paracetamol and caffeine, baked to a (70/30) ratio. The Crown priced it at £x millions. This was obviously ridiculous, as at best, even if each buyer in the supply chain was “scammed”, the best return would be wholesale, not retail values. I went to massive lengths to set out why this was not plausible and undermined the entire Crown case. Having worked through a number of scenarios I was left with either a scam or a “dummy run”. At this stage the Crown were maintaining that it was believed by the defendants to be heroin, in other words the defendants were the “scammed” party. Eventually, we got down to what a “dummy run” was. SOCA denied that it could have been such. It seems to me that they felt that no area of doubt, however valid, could be allowed to infect the case.

 

After all, I had only really suggested a “dummy run” as a possibility on balance at this level, as the identity and addresses of the parties involved in the UK were known, and consequently a scam seemed very risky. I researched “dummy runs” and got downloads from a number of sources, including SOCA which referenced “dummy runs” in it’s own press releases[3]. I got opinions from academics and police officers. I was sure I could put this idea forward as plausible. At Court, the Barrister said that the police now accepted the theory of “dummy runs”, but could I produce evidence from a credible source (academic journal, research or police officer who had been involved in an operation) where the “dummy run” was not about the altering of any aspect of the run, but where goods had been altered solely for the purpose of checking the integrity of the internal security of the operation? The goalposts seemed to be shifting. All previous objections had now been shelved and it seemed to me as if I was the performing EW, finding new, more precise and refined definitions of a “dummy run” while the police kept objecting to each finding.

 

The literature search failed to turn up one sufficiently robust case where there was not a variable in route, collection method or packaging. When I had previously asked another colleague, on first receiving the case, due to his law-enforcement background if he could assist, he advised me to be careful. When I went back to him for advice, he told me he did not do “importation” cases any longer, not because he knows nothing about the international drug market; on the contrary, he knows plenty. He will not do them as he feels, and pause to consider this, reader, that the degree of animosity and unwanted grief that an independent expert can generate should his or her evidence cause a very major Crown case to fail, is simply not worth the moderate fee and now he only takes cases with a certain profile. I was still sure that my suggestion had merit and an academic colleague confirmed that he concurred.

 

I had originally got the idea of running a “dummy run” to check the integrity of the personnel, from personal experience: a client I worked with years ago, who was a substantial importer, sent a consignment of a tinned fruit through with his courier to check if the operation was under surveillance. The standard option was “don’t send anything or change your route completely”. I did suggest that if a “dummy run” was successful it was unlikely to be logged: if the courier is not stopped, there is no record, and if the run is intercepted, who is going to get charged with importing tins of canned fruit? The SOCA officers, who must have known that it was very difficult to prove, but plausible, were not about to bail me out. Such are the difficulties of gaining experience to make comment in such a case. The police line seems to be “we are the only people who can comment on this area of criminality” and despite, in my case, having given evidence in a dozen importation hearings, the number of potential permutations that can occur (substance, country, scale of operation and even type and definition of “dummy run”) might theoretically place any dissenting view under the type of overly rigorous investigation that, if applied to Crown experts in a variety of other drug-related scenarios, could compromise their ability to prosecute their cases properly. Perhaps the old idea that the “defence” expert needs to present a greater degree of credibility than the Crown equivalent has some basis in truth (www.idmu.co.uk/expert.htm) “What is an Expert Witness”. Looking back at my time as an EW, as I stated in the opening paragraph, I doubted my own experience, competence and knowledge base to undertake the role. As time has passed, I have adopted a more critical perspective, perhaps because I have become progressively more disenchanted with the quality of the statements that I encountered, both from Crown and defence-retained EW’s. This is not just about partiality, it is also about questioning if some of the authors of statements actually believe that they are experts and are competent to address a Court on the issues they are asked to report on. In retrospect, I doubt I would have had the self-confidence to begin had the introduction been more complex.

 

The first time

 

My first case was an accident and while it is not exactly a landmark in the history of the judicial system, it has been cited on a couple of occasions where I was able to state with a degree of pride that I had made the difference in what, some 180 odd cases later, is still the daftest prosecution I have encountered. Perhaps it was the utter stupidity of the prosecution that gave me the courage to stand behind my statement and be sure that what I was saying was right. I was also helped by the late Eddie Ellison, an ex-policeman and past Release trustee, who provided me with some invaluable insights into the law, Courts and much more. Eddie knew a lot about the law and no little amount about drugs and people too.

 

Just to pause the narrative; the question of “objective truth” is beginning to recur in this essay and “experts” will often disagree with each other over it, without either necessarily being wrong. Sometimes the question they are responding to is slightly different, but they are unable to reframe it in order to see the similarities; sometimes it is approached from a contrary perspective, so it appears to be a different question; and some witnesses I have encountered will insist a spade is not a spade, it is an agricultural digging implement, and it is only with the greatest difficulty they will concede that there may be validity outside their own reality, or that it indeed may also be referred to as a spade.

 

Close to ten years ago, Release was contacted by a firm of solicitors who asked if an ex-employee was still at the organisation. When told he was not, they asked if anyone else could help with a question about pre-packaged heroin “shots”. As I had managed what used to be called a needle exchange and run “safer injecting courses”, I said I might be able to help. Could I take a view of some photographs? Sure. Apparently, the CPS had decided to charge someone for attempting to supply pre-packaged “speedballs” (a combination of heroin and cocaine salts in water). “That’s unusual” I said, “how many?”

 

A hundred or so.

 

“Wow, yes I’ll take a look”. The photos arrived by special delivery the next day. Card inlays to prevent bending. They showed syringes clotted with blood that had been found strewn round a hotel room, after a YTS room cleaner entered to tidy up. Security turned up and obviously called the police. The police arrested a couple; the man was found to be wanted on an existing warrant. The Forensic Science Service discovered heroin and cocaine in the syringes and due to the proliferation of syringes it was deemed to be a supply case. The photographs clearly showed that they had been used. I called the solicitors who asked me to write my first ever “Section 9” report (Criminal Justice Act 1967). I nervously and rather excitedly expressed the opinion that these would not only have been made unusable by the clotted blood visible in the photographs but also, as anybody would know, sharing or reusing a needle carried a high risk of infection with blood borne viruses (see Plate 1).

 

The case was resolved as the Crown decided that the 100 syringes were consistent with personal use over the period the couple had been in the hotel, or were unsellable, and the prosecution was discontinued. I had embarked on my career as a Court EW and the implications of the case (that the people advising this action knew nothing about drugs) and blueprint for many cases to come (what quantity of drugs constitutes “personal use”) had been set down. How could any “expert” be so wrong? The case would also come to reflect one of the less enjoyable facets of this work: the deep distrust, inside the law enforcement community, of experts who dissent from them.

 

Someone who knows “The cost of everything and the value of nothing”

 

According to Oscar Wilde, this is the definition of a cynic. It has been suggested it is an equally valid definition of many professional mind-sets.

 

In 1999, an empirical study of Australian judges found that 35 percent considered bias as the most serious problem with expert evidence (Freckleton et al., 1999, p. 37).

 

Prof. Wigmore suggested that the remedy lay in “…removing this partisan feature:, i.e. by bringing the expert witness into court free from any committal to either party”[4]. There was a fear in judges that this object is not easy to achieve. Sir George Jessel MR observed in a patent case that sometimes the Court had appointed its own expert under an inherent power to do so. He lamented:

 

It is very difficult to do so in cases of this kind. First of all the Court has to find out an unbiased expert. That is very difficult[5].

 

Earlier he had discussed the way parties searched for experts to find one or more who would give evidence in support of that party’s case, leaving the rest as discards, about whom the Court would know nothing. He said that he had been counsel in a case where his solicitor had consulted 68 experts before finding one who supported their client’s case, hence his mistrust of the system of “opposing” experts (Rares, 2011).

 

Some odd memories and recollections

 

“Tick lists” frequently occur in seizure cases – these are lists of data or numbers and sums where “intelligence” is gathered. Sometimes, they are indeed relevant to the case; sometimes, like text messages downloaded from phones, they are the cause of amusing conjecture, but little more. I have lost count of the number of very risqué jokes I have read on text transcripts. At times, I feel like a voyeur going through the minutiae of someone’s life, but on arrest for drugs the assumption is that there may be more and a search will be authorised and much of the resulting data will appear in the case bundle.

 

Sometimes the message is literal; “Home 2mrrw”

 

The EW will then interpret. “This means someone probably the sender will be ‘Home Tomorrow’” (from an actual case bundle).

 

This continues across pages with lines or interpretation being established, some are incredibly banal, some require Bletchley Park-like ingenuity (or imagination).

 

I recall what is known in the Release office as the “Billy Ball” case, where the phrase “Billy Ball” kept appearing in telephone texts. There were many possibilities, but, although the Crown asserted that a “Billy Ball” was most likely “£10,000”, they offered an alternative; that “Billy” was a reference to amphetamine, and that a “ball” was an eighth of an ounce. There were so many possibilities that I was not surprised to have to attend Court for the trial. It became my shortest ever stay in the witness box, holding a file with countless pages of slang interpretations, I was asked only one question:

 

Is “Billy” a possible reference to amphetamine?

 

Yes.

 

Thank you. No further questions.

 

Well, suffice to say I was hoping that I would get to go through an extensive list of “Balls”.

 

Maybe, it would have been as well to remember the professional mantra; Any EW should always answer the question directly, do not waffle.

 

My favourite “tick list” interpretation must be “Henry” (possibly a relative of “Billy” – the two princes?). In one case the Crown expert wrote:

 

A “Henry” can be an eighth of an ounce. The connection is King Henry VII (!?).

 

I also recall the “Case of the Cannabis on the Door” defendant where a lady, later revealed to have severe mental health difficulties, attempted to enter a well-known West-end nightclub with desiccated marijuana leaf scattered around her handbag and plant stalks tied together with string, along with a dozen empty tobacco pouches spilling out of the top. This was interpreted as cannabis with intent to supply. The tobacco pouches were according to the Crown, perhaps suitable as bags for the plant material. Which, of course, was worthless, but priced by an EW who had not seen the exhibits, as “herbal cannabis”. The case was eventually reconsidered and the defendant was charged with simple possession and, as is often the case, banned from the club, for life. This case was of interest as no one was really sure why she chose to try and walk past club security with decaying matter from a cannabis plant wedged into an old portmanteau on a night out.

 

I also remember being told in Court by a local police officer and a nightclub manager that no drug dealing took place in or around the pubs or clubs around the arches in Villiers St., Charing Cross. While at one level this is laughably naïve (or dishonest), the Barrister in the case took the shrewd route:

 

We have heard from the police, Mr Sutton, that there is no dealing in that area. Are you suggesting the police officer is lying?

 

I regret I wasn’t in Court for the officer’s evidence, so perhaps I should not comment directly, I do not know how long he has been in working that beat, or what his experience of street drug dealing is, but I believe he may be mistaken.

 

It is not wise to suggest anyone is lying. People, particularly police officers are mistaken or their experience is different to yours.

 

On the ability to make a judgment call, dogs are an area of amusement (and for any readers who have an interest in the value of sniffer dogs I can recommend “Headspace” by Amber Marks, a surreal trip into the psyche of the experimental scientist). I could recount many examples that illustrate a variety of ideas about their efficacy. My personal pick of the bunch was the rationale given for the arrest of a guy on the platform for the train to Glastonbury.

 

Apparently, the sniffer dog had picked up a scent and his purple Mohican, tattoos, studded leather jacket, painted Doc Martens, “legalise cannabis” badges and destination were not relevant. He was found with a “ravers goodie-bag” of sundry dance drugs in his knapsack. Perhaps the officers approached the defendant and intended to pass on, but some residual odour, of parties or raves past, too indistinct for the human olfactory system, triggered a reaction of suspicion in the dog. It is a nicely circuitous argument: we cannot know if the dog did pick something up, but as soon as any drugs, albeit powders and liquids are discovered, the dog was right. It would be very difficult to assert and prove the dog’s training was orientated towards cocaine, cannabis, etc. not MDMA, GHB, etc. although theoretically the question could be asked.

 

When the case went to Court, the Jury were able to decide whether the quantity of drugs that the defendant had in his possession (some more drugs of the same type were found at his address), were “typical” of the type of substances that might be expected at such a gathering, and whether some drug types were antagonistic and used to complement each other and might have lasted four days at a credible level of consumption. They had to consider if, as a commercial dealer, it would be probable that he would have taken all the drugs he had to the festival to sell, and if the quantity he had in his possession would be the amount a commercial dealer might take to a festival, where the travel and entrance would have been a significant cost and where over 100,000 tickets had been sold. The Crown suggested that the drugs were worth at least £500 and at best he was selling to part-finance the trip to the event.

 

It would not be in keeping with the impartiality that I have extolled as essential in this piece, if I did not say that over the years I have met a number of officers who have been friendly and more than willing to discuss the issues and developments in the world of drugs. The hostility and suspicion that I have encountered is currently more on an institutional level than a personal one.

 

One facet that I feel is not appreciated by the police, is the number of cases where a case précis is disadvantageous to the defence and a report is therefore not requested or submitted. There are a considerable number of cases, particularly with solicitors we deal with frequently, where I have to say – “I will write a report, but it may do your client no favours”.

 

Another perspective

 

I was recently pondering, in part for this article, the whole issue of how a person might perceive themself as a “drugs expert” and what justifies such a description? The validation of the police’s course, which I am not sure if it is possible to fail, as the phrase “completed the course” as opposed to pass, appears in many officers’ CV? What about a sanction as a full member by the two EW Institutes, or perhaps a higher professional qualification, like a Doctorate, does that automatically make a knowledgeable person an “expert”? Maybe in some instance a monstrous ego has been enough? If you have been following my drift you will know how I feel about this question.

 

From my experience in recent cases, the number of officers I have encountered, who are “expert witnesses” because they have some field experience, have been involved in a couple of major drug busts and been on two courses, which appear to have been transformational experiences, is perplexing. I feel “expert witness” is a term that is in danger of becoming devalued faster than the Zimbabwean dollar, and while I’m mindful that this could be read as the moral equivalent of an old duffer threatening to return my knighthood because the Beatles have been offered an MBE, I would defend myself by suggesting that all joking aside, this is a job that carries a great deal of responsibility and that should not be taken lightly, nor should people be invested with duties and titles they are not qualified to discharge for the convenience of the criminal justice system.

 

I gave evidence in a case, not long ago where the prosecution had put a police officer up as an expert, when the evidence of actual expertise was weak. The defence challenged the police officer as to whether he was really an “Expert”. The answer was very upfront and honest. “I think I am an expert on drugs in this area [jurisdiction], I’m aware of the prices, patterns of the users and people involved, but…I wouldn’t say I’m an Expert like, say… [the Expert for the defence] is”. The Barrister leapt on this and asked the Judge not to accept the officer was an expert because “he has clearly told the Court he isn’t”.

 

Just for the record, the Judge created an ad-hoc category of local, semi-expert for him, for the purpose of the limited local knowledge at trial.

 

I believe that an EW must really learn about his field, to seek out and aggregate knowledge over time and understand the limits of his specific expertise. To do this is to be able to follow a topic, such as the history and development of harm reduction and be able to explain in layman’s terms, why syringes full of blood are not marketable and to grasp how high-level importation, distribution and “dummy runs” are managed while being able to look at the information presented and accept that you may not be the best person to take every case that is offered (and perhaps, altruistically, suggest a better alternative).

 

To do this should gain credibility, not lose it.

 

By an extraordinary piece of synchronicity I was involved in two near-identical conversations with two other independent EW’s in the space of three hours on the same morning in early December 2011. The conversations were initially about a recurring theme, the techniques of cannabis cultivation, yields of cannabis plants and the definition of “skunk”.

 

I find the insistence, by scientists and forensic chemists, of referring to any type of cannabis “bud”, as “skunk” intensely irritating. I understand this is a colloquialism and I accept that most scientists when referring to cannabis bud, bracket off with (“colloquially known as ‘skunk’”), but I do not like it. I like it a lot less when any type of cannabis plant becomes a “skunk” plant or a plant capable, at full maturity, of yielding xy grams of “skunk”. To me, in lay terms, in the UK definition, “skunk” is the mature, THC rich, unfertilised flowering heads from a hybrid (sativa/indica) cannabis plant, grown indoors. Ordinary unseeded flowering heads are “sinsemilla”. Herbal cannabis or “commercial” grade is a mix of some plant material, leaf, some buds and a few seeds. To have to define a “skunk” plant is a challenge that has come up many times in my reports. To keep matters simple, there is no simple answer; as misappropriation through common usage and sensationalist press coverage has left little in common between the original “skunk No1” and most of the plant exhibits that I see. As soon as the common definition of any buds as “skunk” is accepted, it may seem to many observers that the plant source must be a “skunk” plant.

 

To return to the discussion, in both of these half-hour conversations, I said to my colleagues that I wanted to challenge the ubiquity of the word, “skunk” in reports and gave a full explanation. On both occasions I was asked, “Where is this going?” I replied, “Well, my point is that the misuse of the word ‘skunk’ by those who should know better, is firstly inaccurate and secondly, ties in with the ‘high-level THC, low-level CBD cannabis doubtless sends you mad debate’”. “Yes, but you are saying that that you would prefer another noun, that won’t change anything in Court”. “That’s not for me to say, maybe it might not, but we are supposed to be experts, by letting this pass we are colluding in the dumbing down process, we are supposed to educate, it’s part of our role”. Both said they saw the role as more about elucidating, not getting on a soapbox for a personal grievance for something that did not make any difference in real life. I maintained it was not in the least personal, it disadvantaged defendants as “skunk” has different connotations to “sinsemilla” (and genuine “skunk” is quite different, as explained above). We argued the point for a while, on the second occasion I asked if he had spoken to anyone else about the subject recently, as my sense of deja-vu was getting worrying. He had not, so we continued, neither giving ground and ultimately, as had been suggested at the end of my previous conversation, I was told in summary, “I guess part of the identity of the EW is to question stuff like this and we don’t agree, but no-one is telling us we have to sing to a certain tune, that’s the point about being an independent expert, isn’t it?” I said that I thought that was an interesting point of view and I wanted to think what that meant, maybe they were right, and it was a pointless crusade. On the second occasion, my friend asked if I thought our conversations were ever recorded. I did not want to think about that, but this work can induce a certain sense of paranoia.

 

I think what my friends were getting at was about independence of thought. On reflection, the issue may well be that it is very difficult for someone whose CV is full of highly qualified, professor-led training courses, crammed in over the last couple of years, but very little actual immersion in the subject previously to say; “That’s a crappy definition of ‘skunk’ because that does not accord with my reading, what people tell me, or the political manipulation of public hostility to hybrid (or not) cannabis ‘buds’”.

 

How easy is it for one officer to disdain the standard pro-forma that I see repeatedly in statements by Crown retained EW’s, particularly under the work pressures that I have acknowledged, because unlike the police officers who made the arrest and the CPS who have decided to prosecute, the facts as they appear to him leave room for a range of interpretations?

 

I found out for myself in a manslaughter case I did, retained by the Crown, some time ago, where I was very critical of an experienced, highly qualified Crown expert, whose lame evidence collapsed in front of a Jury, under cross-examination. His evidence had been used rather than mine, which was never served, because, as the officer in charge told me at the time, “We can’t have our experts disagreeing with each other”.
Plate 1

 

Notes

 

  1. Just for fun, what is the correct response to this question, reader? Question solution; brass is a compound metal, so the best response would be to ask the questioner the relative ratios of the copper and zinc in the specific alloy. That should put him in his place (thanks to the EWI Newsletter for this one).
  2. HHLJ Hughes (R v. Auton and Others [2011] EWCA Crim. 76) (www.bailii.org/ew/cases/EWCA/Crim/2011/76.html). Since this article was written the Sentencing Council, Drug Offences, Definitive Guideline, effective from 27 February 2012 has been published which will have relevance to cases of this type.
  3. SOCA Press Release, 17 June 2010, http://www.soca.gov.uk/news/243-criminals-misplaced-confidence-nets-cucumber-cannabis-gang-66-years
  4. Wigmore, John, Wigmore on Evidence (Chadbourn Revision) Vol II §563 at 762 cited in Rares.
  5. Thorne v. Worthing Skating Rink Company (1876) 6 Ch D 415n at 416 cited in Rares.

 

References

 

Freckleton, I., Reddy, P., Selby, H. (1999), Australian Judicial Perspectives on Expert Evidence: An Empirical Study, Australian Institute of Judicial Administration Incorporated, Melbourne, .

 

[Manual request] [Infotrieve]

 

Moses, R. (n.d.), “Expert witnesses: preparing and presenting opinion testimony”, available at: http://criminaldefense.homestead.com/Experts.html (accessed 29 March 2012), .

 

[Manual request] [Infotrieve]

 

Rares, S. (2011), “Using the ‘Hot Tub’: how concurrent expert evidence aids understanding issues”, The Expert Witness Institute Newsletter, No.Autumn, pp.5-13.

 

[Manual request] [Infotrieve]

 

Richardson, J. (2008), Archbold: Criminal Pleading, Evidence and Practice, Sweet & Maxwell, London, .

 

[Manual request] [Infotrieve]

 

For readers interested on recommendations on setting out a report, and the duties of a Court Expert, here is The Expert Witness Institute guidance:www.ewi.org.uk/files/the%20law%20and%20you/Exmaple%20form%20of%20Report%20Guidance%20Notes.pdf (accessed 5 December 2011).

 

Here is the Crown Prosecution Services:www.cps.gov.uk/legal/d_to_g/disclosure_manual/annex_k_disclosure_manual/ (accessed 5 December 2011).

 

Here is the view of one of the leading independent providers of expert witness in the UK:www.idmu.co.uk/expert.htm (accessed 5 December 2011).

 

Here is the police training school for expert witnesses:www.apcdlo.org.uk/ (accessed 5 December 2011).

 

Corresponding author

 

Gary Sutton can be contacted at: gary@release.org.uk

 

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