15122019Sun
Last updateMon, 09 Dec 2019 2pm

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Expert Witness Blog

Scotland’s lawyers celebrate platinum

Scotland’s lawyers celebrate platinum

5 MONTHS AGO

This year sees the 70th anniversary of The Law Society of Scotland. Given that the legal systems in Scotland and England have been famously different for centuries, it seems perverse that the country’s lawyers only acquired their own representative body less than one of those centuries ago. In fact the principal was established in 1933, but the little matter of World War Two got in the way of its implementation.

Nevertheless, a platinum anniversary is something to be celebrated and Scotland’s advocates are determined to do just that: especially as it coincides with the centenary of the Sex Disqualification (Removal) Act, which paved the way for women to become solicitors for the first time.

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Expert Witness News

Authored by AI - Here be crypto dragons: it’s all about the evidence, proclaims the CastellGhostWriteBot

Authored by AI - Here be crypto dragons: it’s all about the evidence, proclaims the CastellGhostWriteBot

1 MONTHS AGO

Can you tell if this has been authored by a robot? Would it matter, legally or otherwise, if you couldn’t?

Are you crypto-friendly, or if not, at least crypto-aware?

Bitcoin is on a rollercoaster – zooming up and down in value. Who can predict which way or by how much? Are you one of the early adopters, adroitly enjoying the financial thrills and spills of a Bitcoin punt, despite allegations of ‘crypto whales’ manipulating the market for their own devious gain?

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Expert Witness Legal News

Why should we strive for an Inclusive Legal Services Sector?

Why should we strive for an Inclusive Legal Services Sector?

1 MONTHS AGO

By Amanda Hamilton, NALP

My parents were both lawyers. So many changes have affected the legal services sector over the last 30 years, that if they were alive, they wouldn’t recognise any of it!

The discussions may have been going on for decades regarding the possibility of merging the two major legal professionals, Barristers and Solicitors, into one, but as we all know by now, this will never happen.

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Expert Witness : Building and Property

Boundary dispute reform: let’s use the legislative vacuum to good effect

Boundary dispute reform: let’s use the legislative vacuum to good effect

3 MONTHS AGO

Who would have thought that Brexit – or the lack of it – would significantly affect the way in which the industry manages boundary disputes? Richard Crow, associate director of Trident Building Consultancy, explains:

Two years ago a Private Member’s Bill, sponsored by Lord Lytton, received its first reading in the House of Lords. The Bill suggested that boundary issues could be better addressed by using a structure which broadly replicates the provisions of the Party Wall Act – essentially removing much of the responsibility from solicitors and handing it to surveyors. Progress of the Bill was thwarted by the general election of June 2017, and with parliamentary time apparently unavailable to...

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Expert Witness : Criminal

More psychologists are in court – and that’s a good thing!

More psychologists are in court – and that’s a good thing!

1 YEAR AGO

Vulnerable offenders with mental health, alcohol and substance abuse problems are increasingly being diverted from short-term custodial sentences and towards treatment that aims to tackle the causes of their offending.

In the pilot areas – Birmingham, Plymouth, Sefton, Milton Keynes and Northampton – psychologists are working collaboratively with the existing panels of justice and health officials. Together, the professionals ensure that magistrates and judges have the information they need to determine whether an offender should be required to receive treatment for their mental health, alcohol or drug issues.

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Expert Witness : Medico Legal

How long should a hip or knee replacement last? Now we know

How long should a hip or knee replacement last? Now we know

9 MONTHS AGO

Researchers from the Musculoskeletal Research Unit at the University of Bristol have found that eight out of 10 total knee replacements and six out of 10 total hip replacements will still be in place after 25 years. The research, funded by the National Joint Registry and the National Institute for Health Research was published in The Lancet in February.

After reviewing thousands of case studies going back 25 years across six countries, generalisable survival data is now available for the first time to estimate how long hip and knee replacements are likely to last.

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Expert Witness : Technology

AI system can match experts at detecting eye disease

AI system can match experts at detecting eye disease

1 YEAR AGO

An artificial intelligence (AI) system that can recommend the correct referral decision for over 50 eye diseases as accurately as world-leading experts has been developed by researchers at Moorfields Eye Hospital NHS Foundation Trust. The research project was carried out in collaboration with DeepMind Health and University College London (UCL) Institute of Ophthalmology.

The breakthrough research, published online by Nature Medicine, describes how machine learning technology has been successfully trained to identify features of eye disease and recommend how patients should be referred for care, using thousands of historic de-personalised eye scans. It is hoped that the technology could one da...

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Expert Witness : Environment

The fundamental right to be protected from the dangers of air pollution

The fundamental right to be protected from the dangers of air pollution

7 MONTHS AGO

The British Safety Council welcomed the news of the High Court quashing the verdict of the 2014 inquest into the death of nine-year old Ella Kissi-Debrah, who suffered a fatal asthma attack. Her mother Rosamund has since campaigned for a fresh inquest, believing Ella’s death was caused by high levels of air pollution near her home in southeast London. It means that Ella could become the first person in the UK to have air pollution mentioned as a contributory factor on her death certificate.

Lawrence Waterman, Chairman of the British Safety Council, commented: “The ruling of the High Court is proof that since 2014 we have become much better informed about the dangers of air pollution. Air poll...

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Expert Witness : Animal & Farming

Dr WHO? by Dr Debbie Marsden

Dr WHO? by Dr Debbie Marsden

9 MONTHS AGO

Dr Debbie Marsden, a leading equestrian expert with over 20 years professional experience of expert witness work, offers some advice on selecting the right expert in cases involving animals

In animal related cases, a veterinary surgeon is often the best expert, being generally regarded as an authority on animals and easily recognised by the word ‘veterinary’ – a protected title – and the letters MRCVS (Member of the Royal College of Veterinary Surgeons) after various degrees.

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Parliament, Legislation And Public Sector

Home Office GDPR exemption risks new Windrush, says Law Society

Home Office GDPR exemption risks new Windrush, says Law Society

1 YEAR AGO

The Law Society of England and Wales has criticised the decision to exempt the Home Office from data access rules in the new Data Protection Act, which implements the widely-publicised GDPR. The move will inevitably lead to miscarriages of justice, the society has warned.

Law Society president Joe Egan said the immigration exemption in the legislation stripped accountability from Home Office decision making.

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Expert Witness: Events

Conference makes sense of a changing world

Conference makes sense of a changing world

3 MONTHS AGO

Nothing stays the same; is everything changing? That is the theme of this year’s Annual Conference of the Expert Witness Institute (EWI), to be held on 26 September at the Church House Conference Centre in London.

Founded in 1996, the EWI is the leading membership body and training provider for expert witnesses in the UK. Its objectives are to promote excellence in expert evidence worldwide through rigorous vetting and evaluation and to support the proper administration of justice and the early resolution of disputes through fair and unbiased expert evidence.

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Authored by AI - Here be crypto dragons: it’s all about the evidence, proclaims the CastellGhostWriteBot

Can you tell if this has been authored by a robot? Would it matter, legally or otherwise, if you couldn’t?

Are you crypto-friendly, or if not, at least crypto-aware?

Bitcoin is on a rollercoaster – zooming up and down in value. Who can predict which way or by how much? Are you one of the early adopters, adroitly enjoying the financial thrills and spills of a Bitcoin punt, despite allegations of ‘crypto whales’ manipulating the market for their own devious gain?

Facebook has plans for Libra digital currency that so worry the regulators they are seriously considering trying to stop it happening; but it may already be too late. Facebook recently reported that it now has 2.4bn monthly users across its various apps – Messenger, WhatsApp, Instagram and Facebook – with users on at least one of these apps every day.

As the Chinese cryptocurrency czar Changchun Mu has pointed out, “the most a central bank could do to prevent Libra from entering a country would be to ask all of their payment institutions and commercial banks not to process any transactions which are related to Libra”.

Are you longing to pitch into Libra and get your Facebook profile endorsed with gushing ‘likes’? Investors yearning for a profitable crypto unicorn future (as a company valued at $1bn plus) are anticipating the imminent arrival of the long-evangelised crypto economy. Does that include you?

What, it doesn’t? Perhaps you realise that crypto assets are largely unregulated, with few innocent investor protections? Or maybe you have noted that over $2bn of detected criminal cryptocurrency theft and scams have occurred so far globally during this year alone?

REASON AND RATIONALITY

But all hail Lady Justice, with her blindfold, scales and sword. What does she represent?

  • The blindfold (justice is ‘blind’ – objective and without bias): Whether strong or weak; rich or poor; righteous or wicked: all are treated equally. The blindfold lady does not judge based on appearances but with reason and rationality.
  • The balance (scales of justice): Justice fairly takes into account both sides of the story, from the accuser and the accused; or from the parties with opposing claims. It symbolises objectivity. Justice hands out a verdict assessing the relevance, sufficiency and ‘weight’ of the evidence presented for or against a claim.
  • The sword (the symbol of power): Lady Justice’s sword symbolises the power of reason rather than any real physical power. This power manifests as the law and those authorised to enforce it.

For justice to be carried out and the law enforced, as citizens we give the law its physical power. We have agreed as a society that the rule of law is what we desire; translated into physical power in the form of law enforcers. 

Standing before Lady Justice, it’s all about the evidence – both objectively and subjectively. So how is the digital evidence of crypto assets and associated transactions likely to feature or fair before her?

ENTER THE DRAGON

Your clients may encounter, or need to wield or be shielded from the sword of justice when they become embroiled in crypto disputes and investigations; or wish to pursue claims and counterclaims in relation to crypto assets.

So listen up: the crypto menagerie of whales and unicorns is about be joined by flame-spitting crypto dragons. The dragon is a legendary powerful, sinister creature and a guardian of treasure. Killing it is the conflict between light and darkness, slaying the forces of evil.

The Dragon breathes fire from the sky as it swoops, and it catches your eye. Don’t try to avoid it. (Most lawyers enjoy its appearance – new clients! Oh my!).

Yes, look out for these swooping crypto dragons – the many, varied financial disputes over crypto assets, potentially bringing a whole new raft of crypto-clients urgently needing crypto-savvy lawyers. Complaints, disagreements and conflicts leading to both civil and criminal claims, are set to increase – driven by the growth in crypto scams, thefts, losses and investigations.

As a lawyer, will you know how to slay a crypto dragon when your clients and their financial affairs are assailed by one? Is a crypto entity an asset class, a currency, information, an intellectual property right – or what? When a crypto dragon swoops, any claim in which you may become involved, whether for the claimant or the defendant, is for what, exactly?

Can a record about something in a digitally recorded ledger be considered a certain contract for money, property, an asset – or for anything? Has there been any court judgment qualifying or defining a crypto?

And if a client’s crypto assets are somehow tied up with arrangements or transactions involving a so-called smart contract, can you be sure that contract law applies; and, if so, to what extent? Where are the practical legal differences and appropriate forensic approaches applicable – and what are they?

The Smart Contracts Alliance (SCA) points out that “although the term ‘smart contract’ immediately pushes lawyers to questions of contract law, the reality is that smart contracts may be neither particularly smart, nor automatically intended to be used as a contract, in the legal sense of the word”.

In the SCA’s view a smart contract (in the context of blockchain technology and crypto assets) can be defined as:

“Computer code that, upon the occurrence of a specified condition or conditions, is capable of running automatically according to prespecified functions. The code can be stored and processed on a distributed ledger and would write any resulting change into the distributed ledger. Critical to this definition is the recognition that a smart contract is not necessarily a legal contract. Instead, a smart contract is essentially an advanced form of a conditional ‘if-then’ statement written in computer code”.

Ok, got that? You’re happy to advise your clients as to the legal reliability of and procedures for disclosure of supposed immutable blockchain computer code, with all those fancy ‘if-then’ statements, are you? Whose code is it and whose obligation is it to retain and keep safe the record of changes ‘into the distributed ledger’ – where those changes are critical to tracing and valuing crypto assets in which your client is mighty interested?

A contract not legally smart is hardly a good term of art. Is it really a bargain, or just mindless arguin’ ’bout how you can take it apart?

THE INTERNET BELONGS TO NO ONE

The internet is not a sue-able party. It has no intrinsic financial value and belongs to no one. A crypto asset fundamentally consists of zeros and ones scratched on an internet-accessed blockchain; and changes stored and processed, and written into a distributed ledger. So it seems futile – arguably even legally meaningless – to ascribe a tangible value to a decentralised blockchain without any substantive, sue-able trusted third party responsible for, or standing behind its integrity and security.

So are crypto asset holdings and dealings beyond legal protection and regulatory reach? Computer says “No”!

For when a crypto dragon strikes, the identification, location and financial valuation of any crypto asset; and access to it, holdings of it and dealings and trading in it will be critical.

And here’s the key point: although a crypto asset may essentially be ‘decentralised digital vapour’, a court of law can make a binding order to get forensic traction on it because of the well-established obligation of disclosure.

IT’S ALL ABOUT DISCLOSURE

This obligation applies to digital crypto assets just as it does to computer-held digital materials and documents relevant to any forensic investigation, whether for a civil dispute or criminal prosecution.

Disclosure and valuation of digital assets – including crypto assets – is a significant issue arising in financial and technology legal actions (civil or criminal). During years of expert witness work, I have routinely assisted solicitors and senior counsel in framing appropriate technical requests for disclosure. At the request of attorneys, I recently drafted a checklist giving practical, generally applicable wording for an effective digital asset disclosure exercise.

Litigation lawyers, assisted by experts, should find the suggested checklist wording (see Figure 1) helpful in striving on behalf of their clients; sharpening your crypto dragon-slaying swords; and strengthening your defensive shields. The checklist should assist in financial audits, tax assessments, fraud and theft enquiries, fintech due diligence, investment exchange issues and listings, mergers and acquisitions projects, corporate risk assessments, divorce proceedings, intellectual property conflicts and smart contract audit forensic investigations.

This Checklist: a good aide memoire. Rehearse it when driving your car, or court litigation, all over the nation. It’ll make you a crypto law star

THE DRAGON HAS SWOOPED

You may be wondering whether there has been any court judgment qualifying or defining a crypto. There has: in August 2019 (in what is believed to be the first decision of its kind), Stewarts secured an asset preservation order (APO) over £1m worth of Bitcoin which had been stolen by fraudsters. In this case, the High Court considered the most important unresolved legal issue about Bitcoin – is it legal property as opposed to mere data or information; and, if so, what kind of property is it? In an interim ruling, the court made its first move in recognising the crypto currency as legal property.

Elsewhere, Devonshires was recently instructed by a private investor scammed by a Financial Conduct Authority-regulated FX trader during the sale of £1m of Bitcoin. The firm has since obtained what is believed to be the first Bitcoin freezing injunction in the English courts.

CastellGhostWriteBot is conceived, nourished and supported by award-winning independent computer technology and expert witness Stephen Castell, chairman of CASTELL Consulting.

www.castellconsulting.com