PIBULJ
Honesty And Integrity In Drink-Drive Calculations - Professor Ronald Denney, independent forensic scientist
05/01/12. The author’s experience over many years in carrying out calculations on alcohol absorption and elimination in drink-drive cases has shown that some solicitors are ignoring basic guidelines in seeking the assistance of forensic scientists. This paper emphasises the criteria that need to be applied by all parties in maintaining respect for these calculations.
Introduction.
For many years now under the Road Traffic Acts (see Road Traffic Offenders Act 1988 Section 15.3) it has been accepted that ‘Back Calculations’ can be...
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Honesty And Integrity In Drink-Drive Calculations - Professor Ronald Denney, independent forensic scientist
05/01/12. The author’s experience over many years in carrying out calculations on alcohol absorption and elimination in drink-drive cases has shown that some solicitors are ignoring basic guidelines in seeking the assistance of forensic scientists. This paper emphasises the criteria that need to be applied by all parties in maintaining respect for these calculations.
Introduction.
For many years now under the Road Traffic Acts (see Road Traffic Offenders Act 1988 Section 15.3) it has been accepted that ‘Back Calculations’ can be carried out in connection with post-driving drinks defences and laced drinks special reason pleas. The purpose of such calculations is to show that the extra amount of alcohol was responsible for putting the driver over the legal limit and that the driver was below the legal limit at the relevant time. The significance of such calculations arises not only in attempts to save driving licences but can also be an important issue in post-accident insurance claims.
Forward calculations are also accepted in connection with offences of ‘in charge of a motor vehicle’. The plea entered, in the hope of saving the driving licence, is that the individual concerned would not have driven until he or she was below the legal limit.
For the forensic scientist responsible for carrying out the calculations there is often the problem of how far it is possible to assist the instructing solicitor and hence the defendant without effectively enabling the defendant to construct a defence artificially by later establishing ‘witnesses’ to back up the story.
It is not uncommon for solicitors actually to ask an expert to tell them how much alcohol the defendant needed to drink after driving in order to account for the recorded breath or blood alcohol value. Similarly, quite frequently a solicitor dealing with an ‘in charge’ will ask the expert to tell then how long it would have been before the defendant was below the legal limit.
There is no doubt that both of these requests are irregular, to say the least, and the expert complying with the request would, with the solicitor’s support, be creating a position which would enable the defendant to modify or structure the evidence to his or her benefit and eventually create a fabricated defence.
There are clear criteria which need to be applied in order that the solicitor and the expert are not put in the position of being accused of constructing a defence or a plea.
Post-driving alcohol and laced drinks.
In the case of the post-driving and post-accident drinks defences it is clear that the defendant must provide all the details of the types and volumes of drinks and the times between which they were drunk before any calculations are carried out. The same applies to laced drinks special reason pleas. It is essential that the full details of the lacing are established as unambiguously as possible before keys are pressed on the calculators.
When the calculations have been carried out the figures need to satisfy the following criteria:
The total claimed alcohol consumption should correspond to the recorded breath, blood or urine value, after allowing for alcohol eliminated from the body.
If the contribution due to the post-driving consumption or lacing is subtracted from the recorded value the result, the remainder which is supposedly due to pre-driving consumption, should be below the legal limit.
A back calculation, based upon the result from (2) should also still be below the legal limit.
Due to variations in the calculation of personal body factors (the modern approach to Widmark Factors) and in alcohol elimination rates no expert is going to produce a statement which provides specific numerical values for breath, blood or urine values at any particular time. Instead a potential range of values is likely, but when correctly applied these almost always expose the fabricated defence and plea from the genuine one. But this requires the solicitor rigidly to seek the correct data for the expert to work on without expecting the expert to provide ‘the correct answer’ from vague data that can be later manipulated.
The ‘in charge’ plea.
The Road Traffic Act 1988, Section 5 (3) establishes this defence if it is possible to show that that there was no likelihood of the defendant driving whilst exceeding the prescribed limit.
Calculations with respect to these pleas depend upon the assumption that there is a linear decrease in the body alcohol level at least from the time the individual is first observed by the police and subsequently tested at the police station. In these circumstances the forensic scientist has to be satisfied that all alcohol previously drunk had been absorbed into the body before the arrest. Any calculations are clearly invalid if the driver is still drinking from an opened bottle of can when the police arrive at the car as alcohol absorption will continue after arrest.
It is not possible for the expert to respond to the request for the time when the driver would have been below the legal limit. If such calculations show that the legal level would be reached at, say, 07.30 hours then the driver is almost certainly going to say I did not intend to drive until 08.00 hours at the earliest.
Before any calculations are carried out the defendant should provide a specific statement of the time he or she next intended or expected to drive. Only then should the reduction of the alcohol level be determined over the specified period of time, allowing for the normal range of elimination rates. It is inevitable that with these criteria there will be some instances in which the intended time for driving again is earlier than the time for attaining the legal limit.
Of course, it is the responsibility of the solicitor to act in the best interests of his client and for the final decision on the validity of the calculations to be made by the magistrates. However, the solicitor should also ensure that the forensic scientist is not asked to participate in an action that can lead to a distortion or manipulation of evidence. The forensic scientist can only produce a statement based upon the data provided and his or her knowledge and experience in order to assist the court not to get the motorist convicted or exonerated.
The calculations are only as reliable as the data provided for the expert to work on.
Professor Ronald C. Denney BSc, Hon DSc, PhD, CSci, CChem. FRSC, FFSSoc.
Professor Ronald Denney has worked in the field of drinking and driving for many years and frequently appears as an expert witness in this and other forensic science areas. He is the author of ‘None For The Road’ and many other technical books. He is an independent forensic scientist and when not attending court can sometimes be found lecturing at Kingston University.
www.forensics-denney.co.uk
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Marketing your Practice - Do we need new New Year’s resolutions in 2012? - Jenny Cotton, Mortons Marketing
03/01/12. Do we need new New Year’s resolutions in 2012? What happened to 2011 resolutions? Did we complete all we set out to do? Were our actions delayed or changed by others? Last December we looked at the trends forecast, we asked if the practice was actively monitoring change and developing alternative plans. Did this happen? Was it helpful? What preparation has been made for 2012? “More difficult than usual” were forecasts for 2011, has been proved to be the case? Change means opportunity and well as threat. How can you, your practice and clients benefit?
Forewarned is forearmed?
We read of the varied economic forecasts, the changing global, Euro and local politics. How do the varied outcomes impact on our practice? There are disagreements, there are optimists and pessimists but one certain trend is that the key issues have not been solved and will continue to nee managing in 2012+. Even at national level, it appears decisions taken early in the morning after long nights of negotiation appear not to be final. Well considered options make the immediate response to anticipated change more comfortable and typically less costly. Has your practice experienced external changes? made changes? do you hold several options ready for changes yet to come?
Last year we had to accommodate extremes of weather. Thankfully these have been repeated only in parts of Scotland, so far, this winter. Are we prepared should the travel/ communication difficulties return in the New Year? Hopefully we have learnt for 2011?
Do we have the systems/technology?
Do we have on site/at home working systems effectively in place? Should we invest in equipment and training now? Are we fully work mobile? It may not be weather which interrupts planned business. We may see more civil unrest and this may become more intrusive and lengthier protests in 2012. Groups which have never, or not in the relevant past, are talking protest, even in major global private sector organisations. Can our systems cope?
Internal audit completion, agree external communications
Once we have tried to do all that can sensibly be expected, are we fit for purpose? how do we communicate this to our many external contacts?
This is a communications job and like any other we should agree which are our target audiences- current contacts/new contacts and their priorities. All colleagues can contribute, an overall view must be taken, communicated internally and implemented cost effectively. This does not need to be over formalised but quickly completed before agreeing target messages which will be specific to agreed audiences.eg All, staff and clients, will need to know if a temporary office closure is declared, as was the case for some practices in early 2011. Other messages will be case specific and can be handled as any other project communications, if the technology to work off site is available?
Recession? What recession? 2011 trends rechecked
1. Less will get done unless we learn to do more with less
How did the 2011 suggested “zero budgeted” check go? Have long standing commitments been reassessed for current and future client relevance? We are often told 2008-9 were the years of the great recession and yet early indications for 2012 indicate further belt tightening is forecast for most sectors. Is this the double dip? Or will it not bounce back and therefore show the more pessimistic signs of a “long bath”? Commercial services expansion outside the UK may not be a past option for all regional practices but as their clients explore their own international opportunities and threats, practices should check again. Are current skills updates and or new experience required? Are new clients interested in your existing services? for example international organisations wanting to extend their own operations and needing your regional/ specialist support?
2. We will have more data and even less “understanding”
Do we “drown in data” or do we only scan read much of what we receive? This was claimed of some key emails in the recent high profile media case. Is there a balance to strike between in-house assessment and taking a fresh approach eg using external experience? Often the mentoring of practice staff by an experienced external source offers the best balance by added resources under short term control.
How do we balance the shorter term tactics and the longer term implications? Can we afford to reduce short term costs and plan to reinvest later? Do all clients need the same service levels? Have we recently reviewed their “must have” needs and their more discretionary support? Do we maximise the benefits of all we do? Recent experience indicates there is potential for improvement.
A presentation of Advertising & Budgeting to a CIMA audience of 47 indicated not one had considered stationary, emails, technical support staff, premises presentation, vehicle livery and staff dress codes as part of communication or “advertising” their organisation. All these actions must be taken, all signal practice function, attitudes and experience.
Are your practice colleagues promoting your unique benefits? It may be specialist skills or experience? It may be speed of service or cost effectiveness or it may even be the often overlooked but time and costs valuable benefit of continuity of services. Trust, reduced briefing needs and confidence in known contacts are each valuable assets. Why do we use X? This should be a question every client is comfortable to answer and it helps to remind clients of these benefits.
3. Symbiosis will create interesting and strange partnerships
Learning to do more with less should include cooperation and collaboration with others of mutual values and non conflicting interests. Joint professions practices have been long discussed. Regulation is changing, as are client expectations. Practices may wish to look more closely at joint promotional events with non competing and yet relevant partners. Sponsorships are not new. High profile fundraising for local, regional and national charities can increase awareness of the practice, can forge new community links, can develop team work within the practice between departments or individuals in new teams. Sponsorship with new partners can act as an introduction to new contacts. PR can have a powerful awareness role at a lower investment level then much paid for media.
4. Marketers will mistakenly drop a media channel from their marketing mix
Reducing budgets does mean sacrifices are necessary, should these be across the board cuts or should whole sections be underfunded? Most practices have a range of support activities some externally sourced, others provided in house. ie promotion through paid for advertising and promotion, through active website maintenance, social media interaction and seminar programmes. As clients cut back themselves, your practice offers of legal requirements updates become all the more valued and valuable. Clients have a need to network actively, a relevant forum is mutually beneficial. Do seminars require the full expense of premises, a generous lunch and key staff presence every time? Has your practice tested responses to webinars?
5. The adult 18-49 demographic will become less relevant
Is this group key to your practice in 2012? Can you practice afford to let others establish links with this rising generation? Diversity within this group is not new but application of new social and digital media opportunities when combined with budget pressures introduces a new emphasis. Take time to check Media Generations by Martin Block, Don Schultz and BIGresearch. This outlines the four media generations between 18 and 49 years, which can be summarised as those “internet raised” and those “television raised”. What is the readership of your local/ regional paper let alone the national broadsheets?
6. Marketers will rush to employ social networks
Do you have dedicated social media monitors? In a recently quoted SME, it was stated worthwhile to have two fulltime staff to support a B2B sales organisation of just 40 in total. Does your practice or do your staff offer tweets? widgets? apps? and or even fan pages? Some have thought of social media as yet another media channel to be planned, implemented and evaluated. Others see social media as an outcome of the many experiences of other communications, direct and indirect, paid for as in advertising, PR and normal business progress. Check value to your practice, both positive and negative.
7. Great content will travel at the “speed of share” while average experiences will evaporate
Clear, concise and convincing messages work best in every medium. Short, simple samples of what your practice offers demonstrate your practice skills. Case studies, testimonials and open forum discussion are each relevant methods which can be most effective face to face but at a cost, what can the web offer? A symbol can be helpful to services providers, think of red telephones, moustachioed Italianate opera singers and the Meercats? Awareness is essential and strong content drives interest and action.
For the future…..
As every year, the key to your successful 2012 communication continues to be careful attention to your practice target audience(s), target message(s) and target action(s). The process is merely complicated by new media channels, new fashions for blatant or intrusive creativity and continuing fragmentation of target groups into smaller sectors of common interest. In strategic planning, the proven approach is to prioritise any and every action by those who have the greatest influence on the future. When budgets are tight this is even more appropriate. “More of the same” rarely works.
Jenny Cotton is an independent supplier of marketing services to a wide range of professional practices of solicitors, accountants and retail developers. An EWI member, she has led expert witness workshops and written papers on Expert Witness issues. She has been an Expert Witness since 1997 applying market audit rigor to civil and criminal cases, has given evidence in the Crown, Appeal and High Courts and written reports for the Licensing and Gaming Magistrates, for VAT Tribunal and the Insurance Ombudsman.
Marketing experience has grown from market researcher to marketing director in four FTSE 100 plc. She founded Mortons Marketing in 1994, an independent supplier of market audit and other marketing services.
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Marketing your Practice - Do we need new New Year’s resolutions in 2012? - Jenny Cotton, Mortons Marketing
03/01/12. Do we need new New Year’s resolutions in 2012? What happened to 2011 resolutions? Did we complete all we set out to do? Were our actions delayed or changed by others? Last December we looked at the trends forecast, we asked if the practice was actively monitoring change and developing alternative plans. Did this happen? Was it helpful? What preparation has been made for 2012? “More difficult than usual” were forecasts for 2011, has been proved to be the case? Change means opportunity and well as threat. How can you, your practice and clients benefit?
Image ©iStockphoto.com/whitemay
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December 2011 Summary
NEWSLETTER
Industry NewsSummary of Recent Cases - Substantive Law
Summary of Recent Cases - Costs
Summary of Recent Cases - Civil Procedure
PI Practitioner
LAW JOURNAL
Editorial: Basic Hire Rates - Aidan Ellis, Temple Garden ChambersPersonal Injury Articles
Developments in Personal Injury Fraud Cases - Adam Gadd, Pump Court Chambers
This year has seen a number of decisions of the appellate courts regarding fraudulent, or allegedly fraudulent claims in personal injury cases. Typically, these have tended to arise around staged or invented road traffic accidents but there have been decisions that do not quite fit that mould.
Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB): Part 1 - William Latimer-Sayer, Cloisters
It is rare for large quantum claims to fight to trial. These days the vast majority of cases settle at roundtable settlement meetings or by way of Part 36 offers being made. The costs risks are often too high to justify battling it out at trial, which is why it is of such interest when a case does fight all the way.
Credit Hire Articles
Bent: An Insurer Perspective - Gary Herring, Keoghs solicitors
The facts of the case are now reasonably well known. Darren Bent, an England footballer, hired an Aston Martin DB 9 from Accident Exchange as a replacement for his Mercedes Benz CLS 63 AMG Coupé which was damaged in an accident where he was not at fault in February 2007. He hired an Aston Martin DB9 from Accident Exchange for 94 days at the daily rate of £573.28 plus VAT, and brought a claim for the total of £63,406.90.
Bent: A Credit Hire Perspective - Steve Evans, Chief Executive of Accident Exchange
On 24 November, the Court of Appeal overruled the judgment handed down by Judge Plumstead in the matter of Darren Bent v Highways & Utilities Construction plc and Allianz Insurance plc in February 2011. In a victory for common sense, the presiding Lords provided clarity in a case which, they felt, allowed it to “review the basis upon which Courts determine the so-called 'spot rates' recoverable in this type of case.”
Local Authority Liability, Edited by Daniel Tobin, 12 King’s Bench Walk
Fernquest v City and County of Swansea, Court of Appeal - Tim Petts, 12 King's Bench Walk
On 2nd December 2011, the Court of Appeal (sitting in Cardiff Civil Justice Centre) allowed Swansea's appeal. Mr Justice Lloyd-Jones, giving the leading judgment with which Lord Justice Laws agreed, said that to hold bus companies liable would be...
Does a school owe its pupils a non-delegable duty of care? - Emily Gordon Walker, 12 King’s Bench Walk
Annie R. Woodland (by her litigation friend) v (1) The Swimming Teachers’ Association; (2) Beryl Stotford: (3) Deborah Maxwell; (4) Essex County Council and (5) Basildon District Council. [2011] EWHC 2631 (QB)
PI Travel Law, Edited by Katherine Deal, 3 Hare Court
Cruise Slips: Dawkins c Carnival Plc t/a P&O Cruises [2011] EWCA CIV 1237 - Howard Stevens, 3 Hare Court
The claimant appealed against the judgment of a Recorder, dismissing her claim for damages for personal injury. The claimant was a passenger on board a cruise ship operated by the defendant sailing in international waters. As she was walking through the ship’s restaurant she slipped on some...
Health & Safety Articles
Löfstedt: FOIL comment on the report - Don Clarke, President of Forum of Insurance Lawyers
If you’re looking for a view on the health and safety report recently published by Prof. Löfstedt you can pay your money and take your choice: for the Daily Telegraph it demonstrated that EU safety rules are “costly and pointless”; the TUC regretted the “missed opportunity” to improve safety; and the Forum for Private Business was pleased to see a “health and safety bonfire”. So what is the key message?
Löfstedt: Prolegal comment on the report - Susan Brown, Director and Head of Personal Injury and Professional Negligence, Prolegal
Professor Lofstedt’s report is in fact very sensible and measured, and certainly makes no concessions to tabloid hysteria about the horrors of “elf and safety” law. Professor Lofstedt confirms that there is no case for radically altering health and safety legislation, that the current regime places responsibility primarily on those who create the risks, enabling them to control them in a proportionate manner, and states that there is evidence to suggest that proportionate risk management can make good business sense. He considers that the problem lies less with the regulations themselves and more with the way they are interpreted and applied.
Medico-Legal Articles, Edited by Dr Hugh Koch
The medical notes say PTSD; the psychological expert says not - Dr Jacquie Hetherton
A common finding in psychological reports is for GP and therapy notes to diagnose PTSD but the expert does not...
Coronial Law Articles, Edited by Bridget Dolan, 3 Serjeants’ Inn
Who you gonna call?: challenging the coroner’s discretion to call witnesses in inquests into hospital deaths - Jemma Lee, Pupil Barrister, 3 Serjeants’ Inn
R (on the application of Carol Mack) v HM Coroner for Birmingham & Solihull [2011] EWCA Civ 712
Charon QC
Why Lawyers are Hated
BabyBarista
Justice for sale
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
