Editorial

Reiterative just ice?

One minor but sometimes lucrative (for "experts" and lawyers) quirk of the English and Scottish legal systems is the provision in Drink Driving Law of certain defences requiring the "back calculation" of blood or breath alcohol concentrations under more or less hypothetical circumstances. There is the statutory "hip flask" defence where the defendant claims that his breath, blood or urine alcohol concentration would not have been over the permitted limit but for alcohol consumed after the time of the alleged offence [I]. There is the statutory defence to the charge that arises when a person is found intoxicated, in charge of her vehicle, and she claims that she would not have driven whilst her alcohol concentration was still above the permitted limit [2,3]. Finally, there is the case law allowing a defendant who has plead guilty to a drink driving charge to argue special reasons, including "laced drinks" in mitigation of sentence [4].

Basically none of the techniques used in the calculations in such cases are rocket science, and practitioners from a variety of disciplines, from public analysts through generic forensic scientists to clinical biochemists have been accepted by the courts as having the relevant expertise. For the literate and numerate defendant, two minutes with Google will provide him with a wealth of information from the Internet [ S ] .

With such a wide spectrum of practitioners having been accepted by the Courts in such cases, it has inevitably been the case that not all of those giving expert evidence have necessarily been aware of the standards normally expected of an expert witness. Indeed, the Council for the Registration of Forensic Practitioners has felt it necessary to set out quite explicitly in the case of experts assisting in alcohol technical defence cases that: "the term 'technical defence' does not mean that such practitioners prepare reports only for the defence in a court case. In all cases the duty of registered practitioners is to the court, not to those instructing them" [6].

One example of the way in which expert evidence can be used by some defendants, with or without the knowledge of those giving them legal advice, in such cases is by the reiterative recalculation of the amount of alcohol it was necessary to consume after the offence, in the case of a "hip flask defence", or the amount of alcohol it would have been necessary to lace a drink with to produce a result implying that, but for that added alcohol, their blood, breath or urine alcohol concentration would have been below the permitted limit at the relevant time. The scenario is that the defendant gets the first expert report and uses it to recalculate the post-incident alcohol consumed or the amount of alcohol used to lace his beer and then submits a revised account of events, sometimes via another solicitor to another expert or even the same expert and then obtains a report more favourable to his case. Obviously, such conduct by the

defendant and his witnesses may be unlawful. The ethical position of the solicitor and the expert is, at best, moot.

We suggest that experts who do not wish to participate in such questionable practices should register with the Council for the Registration of Forensic Practitioners and adhere to their ethical code. Further we would suggest that there are some basic rules they should apply when accepting instructions to prepare a report in alcohol technical defence cases:

- Decline to proceed to prepare a report without a written proof of evidence from the defendant and his relevant witnesses including specific information about exactly what was drunk and when and the defendant's physique;

-Decline to proceed without an assurance from the instructing solicitor that any and all previous expert witness statements have been included in the bundle along with the instructions;

- Refer to all such reports as have been disclosed to the expert in the report;

-In preparing a report do not be specific about the amount of alcohol that may be missing from a particular account. If the Solicitor specifically asks you to do that, state that you have been requested to provide this information;

-When preparing a report use a specific calculated Widmark factor, taking into account the imprecision of the calculation and consider a range of alcohol elimination rates, specifying a most probable result of the calculations and giving a realistic estimate of the imprecision.

If a report is prepared taking these recommendations into account, it will be much handier for the unscrupulous defendant to use it as the basis for a spurious or perjured defence by expert and advocate shopping after he and his witness have prepared a revised account.

When the Criminal Justice Bill 2003 is finally enacted, it will become easier for the prosecution to spot this reprehensible practice. Section 33 includes a provision as follows: "If the accused instructs a person with a view to his providing any expert opinion for possible use as evidence at the trial of the accused, he must give to the court and the prosecutor a notice specifying the person's name and address". At the very least this provision should flag up to the alert prosecutor the possibility of a reiterative use of experts in such cases. Unfortunately, this does not get round the problem of the inexperienced prosecutor being handed the file on the morning of the trial.

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Finally, we very much hope that Lord Auld's recommendation that expert statements in criminal trials should include a declaration that the expert understands that his duty is to the Court, not to those who instruct him, will be implemented just as soon as parliamentary time allows [7]. Any competent and ethical expert understands this. Nonetheless, making such a declaration in an expert statement a statutory obligation will usefully remind both those preparing the statement and those instructing them of the expert's obligations.

Robert Forrest Paul Williams

References 1 Road Traffic Offenders Act 1988, s. 15(3)

2 Road Traffic Act 1988m s. 5(2)

3 DPP v Frost [1989] RTR 41 1

4 Pugsley v Hunter 119731 1 WLR 578

5 e.g. http://www.desperateground.org/widmark.htm or

http://www.drunkdrivingdefense.com/publications-aiclel 01 -ways-avoid-dui.htm

6 http://www.crfp.org.uk/contents/specialip

7 http://www.criminal-courts-review.org.uk/ll .htm#p76 at para 132.

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