June 10, 2024 • 48 mins
Ever wondered what it's like to dissect the aftermath of a fire and uncover the truth hidden in the ashes? Join us as we sit down with David Schudel from Keith Borer Associates, a seasoned forensic scientist with a rich background in both the UK and US judicial systems.
How do cognitive biases shape the outcome of criminal investigations? In our conversation, David and I dissect this critical issue, using a compelling case study involving a misidentified arson to illustrate the profound impact of initial biases.
Learn about his diverse experiences, from consulting on criminal defense and civil cases to setting up forensic labs in the Cayman Islands. His unique perspective, having worked on both sides of the courtroom, offers an unparalleled look into the complexities of forensic investigations.
Discover the importance of re-evaluating evidence with fresh eyes and the necessity for investigators to remain open-minded when new information challenges initial conclusions. This episode serves as a sobering reminder of the need for vigilance and objectivity in ensuring justice is served.
We also dive into the essential but often overlooked topic of quality assurance in fire investigations. David shares insights on the challenges faced by smaller forensic companies in maintaining rigorous standards and the importance of effective peer review to prevent miscarriages of justice. From the intricacies of forensic science codes and ISO standards to the practical issues of evidence disclosure, we explore how transparency and efficiency in sharing digital evidence can make or break a case. Tune in for a comprehensive exploration of the multi-faceted world of fire investigation and forensic science, guaranteed to leave you with a deeper appreciation of the field's complexities and responsibilities.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:03):
Hi, welcome to CSI on Fire, the podcast that takes
you behind the scenes of thefire investigation community.
I'm your host, mike Moulden,and episode after episode, we'll
attempt to excavate the oftendifficult but always fascinating
world of the fire investigator.
Welcome to CSI on Fire.
(00:30):
I think this is episode 19, Ithink, and I've got a fantastic
guest on today.
I've got David Shadel fromKeith Borer Associates.
Welcome to the podcast, dave.
Well, hello there.
How are you doing?
Thanks for coming on.
I really appreciate it and Iwas really keen to get you on
because you're the firstforensic scientist we've had on.
So I think you've got aninteresting background, a very
interesting background, a verydiverse background.
So just take us through, as Ido with every guest.
Take us through your history,your background in FI.
(00:53):
I know you're a certified CFI,but just take us through your
history, if you wouldn't mind,david, and tell us how you came
to be here on the podcastno-transcript.
Speaker 2 (01:28):
Also, the forensic labs in the England and Wales
were part of the home officeback then and if you had a PhD
you got in at a higher level.
And I did a PhD just so I couldget in at a higher level and I
figured I'd have lesscompetition at the same time.
That was my game plan.
The only trouble is that theyscrapped that system about the
(01:49):
time I got my PhD and I wasfishing for temp work in Durham
just to fill in, before Istarted really looking for jobs,
and there was someone there inthe temp agency said oh, if you
want to do forensics, there's aplace upstairs called Keith
Borer Consultants.
I said what in Durham?
They said yeah.
I said no.
So I stuck my head around thedoor and one of the scientists
(02:10):
there there was only a couple ofpeople at the time said oh,
you're looking for a job.
I said yeah.
He said got a CV, yeah.
And a week later I wasinterviewed and a week after
that I was working for them andI was jumping in the dark end,
as people like, because I had noidea about the differences
between prosecution and defensework and also civil cases.
(02:31):
But they were doingpredominantly criminal defense
and civil work, because backthen, believe it or not, civil
cases were legally aided, whichis something that's unheard of
these days.
It does happen occasionallyhere, but it's very rare.
It was defence work throughpredominantly legal aid and the
civil cases.
And that was the start of thecareer.
I was learning from not beingin a lab, I was being as a
(02:53):
consultant.
So I started out as aconsultant doing defence work
Fantastic.
Speaker 1 (02:57):
You sort of were into what you've called actually,
because you've got a book outand I've read about three
quarters of it.
It's fantastic, thoroughlyrecommend it for anyone who's
listening.
And you've sort of went intowhat they call the dark side,
what we would call on theprosecution side as a dark side.
So just tell us about that,tell us about what the
difference is betweenprosecution defense, and have
you ever done any prosecutiontype stuff?
Speaker 2 (03:17):
Yeah, so I did consulting work for several
years and then, as circumstanceschanged, I ended up in the
United States and I went on todo consulting work there and
after a couple of years with acompany called Firepro who are a
fantastic company the fireinvestigation side of it dried
up a little and I started tolook around and I got a job at
the Massachusetts State PoliceCrime Lab and became a
(03:39):
criminalist and then criminalisttoo.
And then the Cayman Islandswere looking for a chemist to
set up their forensic labs.
So I moved out to the CaymanIslands Along with Michael
Frazier we set up the forensiclaboratory for the Cayman
Islands and then I did whatessentially was prosecution work
there for eight years and I'vealso done another three years
back in Cayman as a scientificsupport manager.
(04:00):
So I have straddled the fencepretty well in my career to
about 50-50 over the years.
Speaker 1 (04:06):
Oh, fantastic.
And you say I read in your bookabout.
You kind of highlight thedifference between UK system and
American system, whereas in theUS, what would be the right
phrase?
Because you do it all, don'tyou?
Yeah, criminalistic.
So it's not like you're aforensic biologist, you're a
forensic chemist.
You would do the whole kind ofgambit.
Is that right?
You're a forensic biologist,you're a forensic chemist.
Speaker 2 (04:25):
You would do the whole kind of gambit, is that
right?
Yes, so you would get assigneda case.
I mean, a lot of the cases weresexual assault cases and you
were the sort of initial lookthrough that evidence.
So you get the evidence out,you look for trace evidence,
collect it.
You would look for, obviously,bodily fluids.
You take samples and collectthose and you work your way
through and then those samplesyou take would be analysed
(04:47):
further as necessary.
In many cases, just as it is now, a lot of the trace evidence
isn't relevant because theirattackers are known to the
victims, so they don't usuallyworry too much about them.
But you'd never know where itwas going to go.
But your job was just to sortthat out.
But part of it was going tocrime scenes and the police
would tend to do their ownfingerprints photography.
(05:08):
And then we would go in andwe'd collect any bodily fluids.
We'd test them before wecollect them, collect our own
samples, we'd collect clothingor items that might have blood
on them sheets, et cetera andwe'd take them back to the lab,
have them dried and then we'dlook at them.
So you really were looking forthe soup to nuts of that scene.
You went out there, you did allthe initial stuff, you worked
(05:29):
with the police and then youtook the evidence back and then
you finished the rest of thework, whereas in the certainly
in England and Wales you'd be onthe back end of that, so you'd
get the items from someone elselike typically a CSI.
There were CSIs as well andpeople we worked with.
I think it tended to be themajor cases they would call us
out.
So murders, serious offenses,they'll be the ones we go to a
(06:04):
number of cases, well numerouscases actually.
Speaker 1 (06:06):
What would you say is the danger of cognitive bias
and can you give us I rememberyou talk about a particular fire
case a monitor, for example,that the expert just wouldn't
accept?
So what do you see as theissues around cognitive bias in
fire investigation?
Speaker 2 (06:16):
In fire investigation and I'm going to say this is
something of a bold statement,but I personally think the
greatest risk of an innocentperson going to jail is in fire
investigation, and it's not acriticism of the fire
investigators, it's because it'sreally hard.
I mean, fire investigation isone of the few disciplines where
the first question you have toask is has there been a crime?
(06:40):
If there's a burglary, there'sa burglary.
If someone's got a knife stuckin them, they've got a knife
stuck in them.
A fire investigator has to goin and go.
Well, do we have a crime or not?
And when you add all the issuesabout trying to recover
evidence and understanding aprocess in a criminal
investigation, on top of all thethings that can happen in an
accident, and you put them alltogether, it's such a mammoth
(07:01):
task that it makes it incrediblydifficult to do.
You end up in a situation where, at any given moment in time,
you're working your way throughthe evidence, the front line,
but you might be completelyunaware of other things that
will affect your opinion.
But you get stuck into that.
I'm going to call it a rabbithole.
I mean, it's nobody's fault,that's just where you are at the
time.
(07:21):
And then somewhere along theline and it could be a year
later someone says oh, I've gotthat CCTV that covers that and
it might show you somethingcompletely different.
And the cognitive bias effectsunfortunately are subconscious
processes so you don't realizeyou're being guided by them
until you're in that situation.
(07:42):
But I'm going to give you anexample.
It was a water heater fire, theelectrical immersion heater
type.
It was that cupboard, we callit an airing cupboard, they call
it hot press in NorthernIreland and that thing that
caught fire.
The fire was very muchcontained within that airing
cupboard and the person in thehouse discovered the fire.
(08:02):
They'd had a bath.
They got out, they discoveredthe fire and then called the
fire brigade.
Now that was tagged as an arsonand for some reason the fire
investigator had gone in therewith a mindset that it was an
arson.
And I think there was a coupleof reasons for that.
I suspect the behavior of theoccupant didn't help because
they had problems with some kindof problem they had
(08:24):
psychologically which probablymade them quite hard to deal
with.
And then you add the stress ofa fire.
They're going to behave in avery neurotic manner.
But our programmingsubconsciously is when people
are behaving erratic at a firescene or your little radar for
arson goes up and you startthinking there's something wrong
here, and I suspect they justgot guided into that.
(08:44):
They did all the right things.
They said well, I need to ruleout electrical.
And they took a photograph ofthe immersion heater elements
and said I've ruled this out ascausing the fire because there's
no fire damage to it, and thenwent on to explain the rest of
the stuff.
But what they ended up tryingto do was trying to explain why
the charring on the underside ofthe boards that sit on top of
(09:06):
the immersion heater, theshelving, was okay because the
fire had started above that.
And I thought to myself you'vegot the physics the wrong way
around here, because to me thelogical reason why you've got
charring under those shelvingunits is because the fires come
from underneath.
Underneath, yeah, it's comefrom the water heater and the
only thing down there is a waterheater and it's electrical
(09:30):
components, and that aloneshould have been something where
you would step back and go.
This is odd.
But instead of saying this isodd, am I on the right path?
They said no, I'm going to tryand explain it by dropdown,
which I think that's the get outclause for a lot of things.
Oh well, it must have beendropped down.
Drop down.
Obviously it's responsible fora lot of things that we might
(09:50):
not understand.
But then what actually happened?
The photograph was a greatphotograph because it was taken
quite close up and you couldclearly see the wire.
Insulation was burnt and it wasin an area where nothing around
it had burned.
It was covered with a cap.
The cap wasn't burned.
The inside of the cap wascompletely clean, but the
insulation on the wire wasburned and they said this hasn't
(10:13):
burned, so it couldn't havecaused the fire.
I said no, you could see thatit's burnt.
And I wonder even if they hadgone back and looked at their
own photographs on a big screen,which is what I get the benefit
of, rather than looking at itwith your naked eye.
This is one of the advantagesof not being at the scene.
Rather than looking at it withthe naked eye and then taking a
photograph and then saying Icouldn't see any burning is
(10:34):
actually I have to look at thephotograph and then it's on a
screen that's huge by comparisonand I can see quite clearly and
also what you saw from that wasthe earth wire wasn't connected
to anything, and you add thetwo together, you go there's an
electrical problem here.
And that's the sort of thingwhere the bias affects the
cognitive, the subconsciouseffects somewhere along the line
.
And that's a good investigator.
(10:55):
And I think Itty Eldraw, who'swritten a lot about this, did a
podcast and he was asked thequestion well, are you immune to
bias?
And he just said no, of coursenot.
We're all subconscious.
It can happen to any of us andI and I think this is my message
for people who do frontlinework If you see a defense expert
(11:29):
come with a report, yourreaction is going to be oh,
they're just trying to muddy thewater.
So here we go again.
But bear in mind, they mightactually have spotted something
you've missed.
The first thing you should askyourself when a defense expert
comes along is what have Imissed?
Or, more importantly, whatinformation was I not given?
Where's that CCTV that someoneforgot to give me?
(11:52):
Or that one statement?
And that's how it works.
And when you deal with thedifference in prosecution
defense, you also have toremember there is a funneling
effect in all of this.
The defendants who know thatsomething's wrong will be very,
very passionate about the factthis is wrong.
I'm telling you this is wrongand they will force a defense
review, so you're more likely toget a defense expert finding a
(12:15):
mistake because the defendantknows it's not right, if that
makes sense.
Speaker 1 (12:20):
Yeah, so it's a pointer towards it.
Speaker 2 (12:22):
Yeah, you're putting an arrow towards it Now in a way
that could be a subconsciousbias, because if the defendant's
lying, will the expert for thedefense go?
Well, hold on, I'm going totake that as being true and then
subconsciously try and leadtheir analysis in that direction
.
So it does work on both sides,but I think in terms of overall
numbers.
Unfortunately, when cases cometo us, we see a
(12:43):
disproportionately high numberwhere there is a critical
failure, but partly that'sbecause it's driven by people
who know what the truth is, ifthat makes sense.
Speaker 1 (12:52):
Sure, and what would you say?
Those are naively.
When I joined the police in2000, 1999, 2000, I just thought
that every time CPS would takea case forward it must be
correct, it must be right.
And I've learned all over theyears and by seeing some of the
miscarriages of justice thatoften it does take someone like
yourself to have anothercritical eye on something too.
(13:14):
Like you say, I remember when Iworked for EFI Global, same as
you, I'd have a big screen up onthe so I could see that high
detail, I could see what was inthe background.
And I think there is a tendencyfor CSIs, for FIs, to become.
They look through the back ofthe camera and they only see
what's on the back of the camera.
You can kind of get a bittunneleddivisioned.
I was recently doing a reviewof a job and on body-worn camera
(13:38):
one of the attending firesenior officers he is an FI but
he's not involved in the actualcase he kind of puts out some
very kind of comments whichreally kind of start to direct
the police, knowing no betterbecause they're not especially
these police officers at thistime.
He sort of put some cognitivebias in there just by saying a
few comments without havingactually gone inside the scene,
(13:59):
and so I think you're absolutelyright.
Sometimes it takes that externalview and a willingness.
I think you call it the darkside.
That's what I know it to be.
From my very prosecution kindof biased point of view, it's
always been seen as a dark side.
But I think there's nothingwrong both prosecution and
defence in reviewing things andbeing prepared to actually go.
(14:19):
Well, quite rightly, as you'vesaid, what is the defence going
to look at?
What is the defence seen that Ihaven't seen, and I think
there's nothing wrong with that.
One of the biases is, onceyou've made that decision, you
don't want to change it becauseit affects you professionally,
and I see a lot of that wherepeople go well, I can't be wrong
.
I know I'm wrong.
It comes back to that TVmonitor job that you detail in
(14:40):
your book, where the guy isobviously wrong.
There's evidence, there'sphysical evidence to say that
that person is wrong, but hejust won't accept it.
Speaker 2 (14:48):
And I think that's when it's dangerous.
Yeah exactly, then the worry is,if that goes on a jury, then it
just comes down to who the jurymight believe Exactly, which is
a huge concern Francis Baconand this is 400 years ago talks
about.
Once a person's set their mindon something that they find
appealing, they will fight thatposition, even in the face of
completely contradictoryevidence.
(15:09):
They will fight it with someprejudicial violence rather than
accept that they might have tochange their minds.
And here we are 400 years laterand it won't change.
I mean, this is just humannature.
Is that it is now normal, whenthere's an issue that's been
raised in forensics, for thescientists or the CSIs or
(15:39):
whoever the experts are to meet,and specifically without any
lawyers and preferably beforethe trial starts, and then they
can talk through that, becauseinvariably and I mean this is
more common than not it's justbecause the I want to call them
prosecution experts.
I don't mean that they are.
That's who they're instructedby.
We're all experts for the court, but they've been given
(16:02):
frontline information which atthe time was perfectly valid,
but no one's ever gone back tothem and said, oh, here's
another 600 pages of documentsin this case.
Could you see it?
Could you have a look at themand see if it changes your
opinion On those three videos aswell.
Oh yeah, and those 600photographs?
And they don't get that chance,but the expert and strategist
(16:22):
by the defense does.
And when you meet together, youthen say have you read this?
Have you read it?
No, I haven't seen that.
I haven't seen that.
And quite often you can resolvethe differences in one go.
So you end up with what theycall a joint statement and
there'll be no disagreement.
Not every time, and it'sperfectly okay to disagree, but
at least you've come closertogether and you've had the
(16:43):
conversation, and that makes itsimpler for the court, but it
also, for me, allows us all tobe professionals.
I'm not immune to this, likeany of us.
As a defense expert, I'veactually brought issues up and
the prosecution's experts gone.
Oh Dave, sorry, you didn't seethis, did you?
And I'm like oh no, nobody gaveme that.
And then I've had to back awayfrom my position and go yeah,
(17:06):
okay, well, that answers thatquestion, and that's why we do
it, because it's aboutinformation sharing and it's
about transparency because it'sabout information sharing and
it's about transparency.
Speaker 1 (17:17):
Yeah, I did one of these a while back and it was
very interesting in that I thinkit's becoming much more.
I remember the old days and thedefence scientists would turn
up and there was like a tensionin the air and things like the
Met Lab.
When I was there, we'd have adefence expert come and there
was a bit of a tension in theair and what they want to look
at and that sort of stuff.
And I think to a greater extentthat's kind of, I think,
because if you know peopleyou've worked with people,
individuals before you knowwhere they're coming from and,
(17:40):
as you quite rightly say, we'reexperts for the court.
We're not there for prosecutionor defense.
The facts are the facts andthat's how it should be.
But I did one recently and itwas very obvious there was three
of us actually on thisparticular job and it was very
obvious one of the individualsinvolved just had not been given
any information, hardly anyinformation at all, and it was
like well, are you not aware ofthis?
You're not aware of that?
And I think that kind of jointmeeting between experts is
(18:03):
fantastic because it allows us,as you rightly say, without
lawyers advocating with justthree professionals or two
professionals in the room,probably know each other,
probably work with each other.
We will have to work with eachother again in the future, just
coming together and going right.
What are the facts?
What do we agree on?
What do we disagree on?
And I think that's really usefuland the way to go Fantastic.
(18:24):
I mean, you're quite active onLinkedIn and you're quite active
.
I know that Keith Borre hasjust gone through, or are going
through, the UCAS accreditation.
What's your view on ISOaccreditation for fire
investigation?
Do you think it's somethingthat we should be aiming towards
?
Do you think there's anyrestrictions around it?
Do you think there's anyproblems around it?
Speaker 2 (18:41):
I'm going to take that hot potato.
Speaker 1 (18:43):
A good man.
Speaker 2 (18:44):
I just think, at the end of the day, whatever we do
for quality has to be fit forpurpose, and the worry is about
ISO 17.020 and 17.
17025 were designed with acertain mindset and it's about
laboratory testing and surveyingand things like that.
There was this decision made toapply these to fire
(19:05):
investigation.
Well, I don't know if it's beenmade yet, because we still
haven't actually written thatpart of the module for the code,
but it seems to be.
That's the way it's going, themodule for the code, but it
seems to be.
That's the way it's going.
And then there's a secondaryissue is how will it apply for
sole providers or smallcompanies?
When this was raised in 2019with the House of Lords, who had
(19:27):
a technical review committeeinto forensic science and I gave
evidence to that committee oneof the things they determined
after having completed theirreview was that there should be
a separate way of managingquality for sole providers and
for small companies.
Partly of the mitigation factorsare for cognitive bias effects,
and to prevent miscarriages ofjustice is to have effective
(19:48):
peer review, and the best peerreview you can get in-house is
an effective one in-house.
But you might not get thatbecause if everyone's busy, they
(20:11):
might just read your report andgo, that looks okay.
That because if everyone's busythey might just read your
report and go, that looks okay.
Whereas an expert who'sindependently instructed is
going to go right back to thestart and follow the thing all
the way through with all thedocuments that potentially the
other expert didn't get, and theCCTV and the photographs, and
they're doing a quality review.
That's the whole.
Well, at least up until thatmoment in time, with everything
(20:32):
that's available in that case.
And you need that to preventmiscarriages of justice, because
there's enough of them that wecatch at that moment that they
don't end up like poor Malkinsonand spending 17 years in jail.
We catch them before trial andthe prosecution goes to trial
and offers no evidence.
Job's done.
And these are legitimate caseswhere, for no fault of any
(20:52):
individual, the case is just ona different rail, it hasn't
jumped individual.
The case is just on a differentrail, it hasn't jumped the
track, it's just on a differenttrack, a track that doesn't
really exist.
When you pull it back, you getthe thing reset and if you
create a quality system thatthen dissuades, minimizes, makes
it untenable for smallerproviders who provide the
service to exist, the worry isthat no one's checking as much.
(21:16):
And if no one's checking asmuch, you're going to end up
with potentially the miscarriageof justice slipping through and
innocent people going to jail.
So when you talk about qualityfor the criminal justice system,
one of their top rankingquality assurances has to be we
don't put innocent people injail.
So you don't want to create asystem where the back end of
(21:36):
that, by unintended consequences, you're going to lose the
backstop, the last final check,because of a bureaucratic system
that's been developed to tryand improve quality.
It's an ironic paradox that youcreate by trying to resolve
quality in one way, you actuallydecrease it in another.
I always thought why aren'tdoctors in the forensic science
(21:59):
code of practice?
They don't have to do all thethings we have to do as
providers.
They provide a massive amountof information in the criminal
justice system.
It's hugely relevant and itcould be absolutely critical to
a case.
But they're not in the code ofpractice, the forensic science
regulator's code of practice.
Why not?
Well, because they have adifferent way of doing things.
They have their owncertification bodies that they
(22:20):
answer to.
Well, in FIRE we havecertification bodies and we can
tailor those to fit.
So why can't we have acertification program as opposed
to going down the ISO route?
Why aren't there differentoptions?
That's the one thing I can'tquite grasp is why we can't have
a different way of doing it,rather than trying to bring up
an entire organization into aquality model that's designed
(22:44):
for laboratory, where we couldcertify individuals instead.
Or maybe there has to be ahybrid approach, because you
want to make sure your evidenceis treated right, you want to
make sure that documents aretreated right, and there are
processes in place, so theremight be a way of meshing two
together.
I'm not entirely convinced thatjust having one approach, which
is 1702 all for a scene, isperhaps the best way, but it is
(23:05):
a way of doing it and it can bedone.
I mean, the Americans haveshown that, the Danes have shown
it too, so it can be done thatway.
If that works, that's great,but it's just a shame we didn't
have something like CFI somehowin that process.
Speaker 1 (23:17):
That's an interesting point.
I've seen it from the CSI pointof view, having gone through
that process, is that I thinkyou quite rightly say you are
the back end and you are thefinal stop, if you like.
The final balance in check,really, and I think there
doesn't need to be.
My view is that it doesn'tnecessarily.
It's not necessarily that ISOisn't appropriate or necessary.
It's the fact that, from mypoint of view, no one seems to
(23:40):
be listening to any alternativeor to any issues or problems
that are coming up.
Lots of police forces arehaving to go through it from a
CSI point of view and lots offire services are going to have
to go through it from an FIpoint of view.
It just strikes me that this ishow it is and like it or lump
it and I know on the privateside, I mean on the defense side
do you have to go as a firm,like Keith Borer, having to go
(24:02):
for accreditation?
Speaker 2 (24:03):
We've had accreditation in some because
it's method-based accreditation,so you don't get accredited as
a company, you get accreditedfor that particular method that
you're using.
You could have 10 differentthings you do.
Two might be accredited.
The rest aren't.
For example, most of our workwe do is case review, which is
undergoing a review at themoment to see how there could be
(24:24):
a quality system applied tothat.
So that's been hosted by theChartered Society.
They're leading that at themoment, so trying to bring case
review somehow into a qualitysystem.
But we do have accreditedmethods for some of the things
we do in digital forensics, forexample, and handwriting
(24:45):
comparisons.
We're 1702 vibe accredited forthat.
It's a lot of work, it has value.
It's time consuming and it'sexpensive, but it has value.
The worry for me I think from aCSI standpoint, only having
read and I'm not a CSI, havingread some posts from CSIs is the
reduction in the amount of workthey get through.
Again, if you talk about aquality system, I've rarely seen
bad CSI work.
I generally find CSIs all do apretty good job.
(25:06):
They're trained well.
If they're doing the same jobafter accreditation but only a
third of the number of scenes,then the quality impact has been
negative because you've got thesame product but you're having
a third of it done, which thenhas an impact on the public, and
because you're not hiring threetimes more people to cover the
(25:28):
shortfall.
So less scenes get attended andif less scenes get attended we
catch less suspects becausewe're not looking for the
evidence.
Speaker 1 (25:35):
I mean I've been quite verbal on linkedin in that
regard, in the sense of when Ifirst started as a csi, we had
systems in place, there werestandard operating procedures.
Everyone went through apartfrom a couple of forces of the
met that can.
Everyone went through the sametraining program, were taught at
durham, at the national policecollege.
Everyone really had a similarthing and there were checks and
balances and quality standardsalready been built.
(25:58):
And what I've seen with the andI'm some might call me a
dinosaur but what I've seen withthe new generation is that csi
is coming in they think that twojobs a day is a busy day and
because you're having to record,because of the set out and the
quality requirements of ISO,you're having to record
negatives and that can take youhours to record.
Imagine going into a crimescene.
(26:19):
You record everything that'snegative.
No-transcript fire services arejust not going to be able to
(26:55):
afford to go through theaccreditation because, as you
said, I think if the governmentand we don't get into politics
now, but if it was supported andit was paid for it was free as
a service, then then I thinkyeah, great, but an awful lot of
money budget that could havebeen spent to submit
screwdrivers, to submitignitable liquid samples just
aren't getting submitted anymorebecause the quality management
(27:16):
is taking up a vast amount ofthat budget.
Speaker 2 (27:18):
Well, yeah, I can't speak from the budgetary side,
but I can from reviewing casesthat are going to trial, where
samples have been collectedbecause of suspected ignitable
liquids but they've not beensent to the lab.
And then a fire investigator isgoing to go into the doc
basically saying, well, my PIDgave a hit I think it was
ignitable liquid use or the docdid and there's a volume of
(27:43):
evidence out there of bestpractice which says you can't do
that and unfortunately you'resetting yourself up for a tough
cross-examination and I don'tthink the fire service and the
police should allow that.
They'll end up with strongercases if they just send it, if
that makes sense.
I know why they don't send it,because obviously there's
(28:03):
decision processes about whatyou're going to pay for, what
you're not going to pay for andwhat difference it might make.
But what you don't want to beis two years down the line
having not sent it, then tryingto backfill and the sad thing is
20 years ago this neverhappened.
We've actually managed to makethat portion of our service and
fire investigation worse, andunnecessarily so.
(28:24):
I think that certain changescould be made to say, well, if
you suspected ignitable liquid,enough to tell a CSI to collect
a sample, then, unless there'sno prospect of this case going
ahead, then you need to sendthat to the lab as a carte
blanche.
Just don't even think about it.
Just get it there, because ifyou make the decision a year or
two down the line, your bagsmight be compromised, the
(28:48):
ignitable liquid may havereacted with whatever's in the
bag.
There's so many things that canchange and you'll then lose
your evidence.
It's volatile.
That's why you collect itExactly.
Yeah, so you want to try andkeep it.
It just takes sticking a bag ina closet and then, over a year,
somebody putting something elsein there that has a sharp edge
and you punch a hole through thebag and then suddenly you're
(29:09):
done, and that won't happen ifyou send it straight away.
So I think there's certainlythings that need to be tidied up
in fire investigation.
Speaker 1 (29:16):
It's not happening yet, but yeah, I've seen a
couple of you reviewed and I wasinvolved on the defense side,
actually for a job in scotland,and I see a little bit more
reliance, the PID and on the dogand almost cognitive bias in
relation to where the dog'sindicated there.
They've excavated in thoseareas but they haven't excavated
in other places so they don'tnecessarily know the context of
that ignitable liquid and it's aworrying kind of trend I think.
Speaker 2 (29:41):
Well, we go back to the dogs, just to finish that
point, the training records forthe dogs.
You could argue to have themdisclosed.
And even in the trainingrecords the dogs do sometimes
miss a positive and theysometimes hit on a negative.
Speaker 1 (29:56):
Yeah, I mean, the dog is intelligence, isn't it?
The dog is intelligence.
It's not evidence.
That's how I've always treatedit.
Is that okay, the dog's there,and if the dog is indicated,
they're great.
But that doesn't negate lookingelsewhere for things or putting
that ignitable liquid, becauseyou don't know what it is until
you send it off and you've gotto put it in context.
And it doesn't mean that thedog's right, it's intelligence.
(30:17):
It helps you close down an area.
Speaker 2 (30:19):
It's presumptive.
Yeah, like looking for blood ina crime scene.
Speaker 1 (30:23):
Exactly.
I've seen a little bit of lazyand I am a CSI, so I'm 100% back
CSIs because they do afantastic job and they do it in
difficult circumstances veryoften.
But just started to see in acouple of cases I've looked at,
a little bit of laziness inrelation to the dogs indicated.
So job done type thing, andthat's obviously wrong and not
the right.
Anyway, let's talk about a bitmore about have you got a case
(30:45):
study?
Can you think of a job where,from an FI point of view, where
you've seen it go very wrong andyou've picked that up I know
you have so Well, we talked abit about the water heaters, a
classic one.
Speaker 2 (30:57):
There's three things where there's problems.
One is the prosecution arepretty much on the right track
but they've not finished lookingat the evidence correctly, for
example, the ignitable liquidsample being taken and analyzed,
and you'd have a much strongercase until a defense expert
points out well, the dog can'tgive evidence, the PID is
(31:18):
unreliable.
You have the evidence and bestpractices, you analyze it and
you haven't done it and it's notsomething a jury really wants
to hear in trying to deliberatea case.
That's one thing.
But where we see and I'mtalking about the critical,
critical failures, there's twotypes of fire investigation
which are quite unique to fireinvestigation.
One is it was actually anaccidental fire and that's
(31:43):
something that doesn't happen.
It does happen technically atmurder scenes, because people
can actually commit suicide andbe labeled as a murder.
But the chances of accidentalfires are relatively high and
you can go into a case and go Ithink this is an arson and
that's the railway track, that'sthe train off it goes and you
look at it and go no, they'vemissed it here and it's an
(32:03):
accidental fire and you've justarrested somebody who shouldn't
have been arrested and theirlife's been in case as a result.
That's one type of case.
The other type is, yes, it's anarson, but you arrested the
wrong person, and that comesdown to it's not really the fire
investigator's job.
But when you're reviewing thesethings from the beginning to
the end, that's when you seewhere the weaknesses are.
(32:27):
I went hold on a second.
There's a problem here.
The classic one I did wasthere's a few.
Actually One of them.
We managed to figure out whoactually did it halfway through
a trial, at which point thejudge looked at the prosecutor
and went what happened to yourcase counsel?
And he went.
I don't know your Honor, itseems to have disappeared.
So we had one where the CCTVshowed a person leaving and that
(32:55):
was the last person who leftbefore the person who found the
fire reported it.
But there's your bias effectright there.
Nobody thought could the personwho found the fire be the one
who caused it?
Now, as a fire investigator, Iknow that there is a certain
number of people who it's thesecurity guards, who the hero
syndrome the middle of the nightset a fire, then they discover
(33:17):
it and they become the hero ofthat situation and those
examples.
So I know.
You should always check whodiscovered the fire, who were
they, what were they doing andhow do you know they didn't
cause the fire.
And there's one instance.
The story is this teenager usesthe bathroom, leaves and then a
couple of minutes later a guygoes into the bathroom,
(33:37):
discovers the fire, reports itand so they arrest the teenager.
When you go back and look atthe CCTV, that wasn't disclosed.
I had to ask for it.
The guy who discovers the firespends way too long in that room
.
This is a bathroom that's aboutthe size of a spare bedroom in
the UK.
It's about a 10 by 10 room.
There was a fire in there andit was a thick black smoke.
(33:59):
There's plastic producers.
You'd know straight away.
They would have seen itstraight away and come straight
out, but they were in there waytoo long.
And they would have seen itstraight away and come straight
out, but they were in there waytoo long and nobody talked to
them.
They normally got a name ofthat person.
Nobody talked to them.
That was the basis of my reportto say I really worry about
this.
But even when I went to trial,counsel said to me oh so you
think this person thatdiscovered that they're the one
(34:21):
who might have done it.
I said yeah, but you said, butwhy?
I said wait a second, you'venot looked at the CCTV, have you
?
He said, well, I was going tolook at that.
Next I said look at it and comeback and talk to me.
He comes about five minuteslater, he goes.
What's he doing in there?
Precisely, he goes in there.
He's in there way too long.
They try to get a statementfrom.
It was a restaurant place thatthe manager, but who this person
(34:52):
was that reported the fire andhe said, oh, we haven't seen him
since that night.
Surprise, surprise, this poorteenager had his whole life put
on hold.
He was going to go touniversity.
He had to cancel that for ayear because they didn't know
what was going to happen.
And again, it's no criticism,it's just what happens.
But thankfully, because we havea system in place to check, we
managed to catch that.
So they're the ones, like Isaid, yeah, it's an arson, I
totally agree, but you mighthave looked the wrong way.
And then the other ones are theones, like I said, the
accidental one.
And another thing we getinvolved in and this happens,
(35:21):
I'd say, the most frequentlyit's about mitigation and I
think that comes down tocharging levels and people get
charged with arson with intentto endanger life, charging
levels and people get chargedwith arson with intent to
endanger life and that carries aheavy time in jail.
You're intending to endangersomeone's life.
In other words, you'reintending to kill them, or
that's the charge.
And we look at them and you gowhere's the intention?
But we can't talk aboutintention because we're not
psychologists.
This is not what we do.
(35:42):
That's for the jury to figureout.
But we look at the cases andyou put the package together and
try to put a light on the factthat, well, the charge needs to
be proportionate, but at leastwhen it comes to the review,
yeah, we agree, this is an arsonand there's only so many people
had opportunity to cause it,and so it goes on.
So that's another type of casewhere you look at it.
That's really about mitigatingthe level of charge and
(36:03):
sometimes, when we do that, theprosecution will shift the
charge and the person will pleadguilty.
So we do save the court a lotof time and the expense of a
trial.
Speaker 1 (36:13):
That exact scenario happened with me and then,
purely from that contextualpoint of view, there was a fire
in a residence and socialhousing.
It was in Scotland, so I thinkthere's willful fire raising in
Scotland.
So when I looked downstairs inthe flat there was ignitable
liquids there and it was givenout as a painter's like, as a
welcome decorator's pack.
There was ignitable liquid,white spirit, given out with
that and they just took that.
(36:34):
They just saw that they weregoing for the higher charge
because they were saying it wasdeliberately set using ignitable
liquid and they hadn't put thecontext.
Well, hang on a minute, thethree flats downstairs have all
(37:07):
got exactly the same.
They were all kind of verysmall flats and they had exactly
the same layout.
There was white spirit there.
But when I got there a coupleof days later I went downstairs
into the other flats and madethose inquiries with the council
do you give out any sort ofpainters, decorators?
Because when I dug it out, whenI went further, there was the
silver bands from the paintbrushes.
There was tins of paintunopened.
They'd literally dug out onefoot by one foot where the dog
had indicated.
(37:27):
So yeah, interesting,interesting, and I think it's
good to say that I don't thinkmost of the stuff that I've seen
when I have reviewed is it'snot malicious.
It's people actually trying tobe helpful, but it's just like
you haven't had the rightinformation or, as you've said,
you haven't had access to thatCCTV, because people are quite
guarded about things like that.
You mentioned their disclosureand I know that on the defence
(37:51):
side, I know you have someissues around disclosure, so
should we just talk about thatfor a little bit?
Speaker 2 (37:57):
in my book somewhere as one of the greatest problems
with the criminal justice systemraised at a legal level.
And it is.
It's a huge problem.
But I wrote to the Ministry ofJustice in the early 90s because
at that time, digital imageswere just starting to appear and
we would be sent books ofglossy photographs.
(38:18):
And I said, well, why can't wehave the digital images?
Because we can zoom in and outmore easily rather than trying
to use a magnifying glass, whichis what you do with glossy
photographs.
And I was told, no, because wecould edit the photographs.
That was the mindset back then.
Oh no, you could edit them.
And I said, yeah, but you'vegot the original copy.
So if I've edited them, it'd bepretty obvious.
(38:38):
Oh no, you can't have them.
And I said, yeah, but you'vegot the benefit of these.
They are better.
And so I wrote the Ministry ofJustice and said, well, I feel
like this is prejudicial becausethey've had this benefit and we
don't.
And the MOJ wrote back and said, no, he's an expert, you're
entitled to have them Anytime.
We had a challenge on it.
We just produced his letter andeventually we get JPEGs by
default until well recently.
(39:01):
Now we can't get them anymore.
How did we end up back in thesituation where the JPEG
photographs are still the samevalue as they were back then?
With a good, high resolutionJPEG photograph that's in focus,
you can stand as if you'restanding with a big enough
screen, as if you're at thescene, and zoom in and out into
the image in a way.
(39:22):
That's actually quite hard todo if you're at the scene,
because at the scene you'd haveto walk forward three paces and
peer down this.
You just zoom in and out.
You can look at things soquickly.
But you can't do that with PDF.
The compression is too high.
We challenged this and we'retold our disclosure is met.
No, it's met for the jurybundle, but it's not met for a
defense execute.
And then what happens is wewaste weeks and solicitors time,
(39:45):
cps time, police's time, ourtime, sometimes the judge's time
, because the judge has to thenorder that these photographs be
released.
And then we go around incircles but we see that that's
fire investigation.
Same with CCTV.
They may do a compilation ofCCTV, which is great for a jury,
but I want to see everyseparate channel because I want
(40:06):
to know what it's not showing meand sometimes you see things as
a fire investigator, you'll goright.
The fact that there's no firehere at this time is relevant.
Now, putting a compilationtogether, well, there's no fire
there, it's irrelevant, so we'renot going to, we'll cut it out.
There's a relevance to that tome, and also subtle things In
fact.
This is one a colleague was theprosecutions expert of our
(40:26):
investigation pointed out whenwe were reviewing the whole CCTV
.
He goes oh, look, that lightwent off and it was the fire
exit light went off.
And with the CCTV time, he saidwell, that means the electrics
must have been breached at theceiling level.
I was like, yeah, you're right,all right, the time down,
that's a marker, that's part ofyour timeline.
But in almost any disciplinewe're having disclosure problems
(40:49):
.
So sell site getting the calldata records.
They'll send a PDF.
You can't type in 10,000records.
You need the Excel spreadsheets.
Although we'll get call datarecords that have been modified
In imagery cases, they'll sendmassively compressed files.
You try to do an imagecomparison.
You need the originals andfingerprints getting access to
(41:10):
fingerprint evidence to look at.
Everything's just beingchallenged and ultimately we're
entitled to see these things, todo the review.
But the fact that every one ofthem gets challenged so often.
I can't even imagine how manyhours per year between everybody
involved the solicitors, us,the prosecutions experts, the
OICs, the judges just to getsomething.
(41:32):
That should be a given.
And if there's one thing weshould try and fix in the system
, it's just a pamphlet that saysif a defense expert asks for
these, the answer is yes, howcan we get them to you?
You won't get into trouble,it's not a problem, and just
have a list of things where youcould just get them, because at
the end of the day, we're allworking for the court and if you
have a report saying I've askedseveral times to get the best
(41:55):
resolution of these, I haven't.
I've done the report based onwhat I was given.
However, I consider the qualityof these is insufficient for
this purpose.
My observations are preliminary.
Further information may requirea member of this report and
you're forced to produce thatfor court and it gets served.
The first thing the judge isgoing to say is why didn't the
expert get the right information?
(42:16):
And everyone's looking verysheepish at that point and the
trial has to be stopped.
And then, basically, theinformation provided added to a
month's delay.
Speaker 1 (42:25):
It's very similar to the Ignite.
You know, not testing it wouldsave you money front-end.
You've got to spend outfront-end but it's going to save
you money thousands of hours ofcase prep and judicial time at
the back-end.
And have you seen much sort ofscanning kind of stuff?
Do you get access to thescanning?
Obviously, 3d scanners arebeing used more and more at fire
scenes and crime scenes.
Do you get to see that kind ofinformation or not?
Speaker 2 (42:48):
We have seen it, and it's just as long as we get in a
format, because we don't havethe scanning software.
As long as it's in a formatthat's an exportable format, and
we have had that, and some ofit's really, really useful.
It's not great for detail, no,it's great for patterns like
macro patterns, but if there'san area where I go that looks
interesting, I'm hoping the CSIis took in a nice 10 megabyte
(43:11):
picture of it, beautifully infocus.
Which CSIs are great at doing?
You go, oh yeah, okay, thatshows that in more detail.
I think they're a great tool ina complex scene.
They're a great tool for anoverview.
I think the road traffic peopleuse them quite a lot as well.
They'll use them for theiranalysis.
I've seen them a couple infatal cases where we've had that
information come through.
That's the other thing too.
(43:32):
Oddly enough, though, it's theserious, serious cases where,
generally, disclosure has notbeen a problem, but I think it's
because they have a disclosureofficer and they go.
What do they want?
Speaker 1 (43:43):
Yeah, no problem.
Speaker 2 (43:43):
Here.
Speaker 1 (43:44):
There's someone to manage it in-house, as opposed
to a dedicated officer, exhibitsofficer or disclosure officer.
There's someone to manage thatand understand the data,
disclosure and all that goodstuff and all that nightmare.
Speaker 2 (43:54):
It's a fear thing.
I think it got markedly worsewhen GDPR kicked in, and I think
people are worried they'regoing to disclose something
that's going to get them intotrouble.
I totally get it, because Iworry about the same thing.
I worry I'm going to dosomething that might get me
trouble because of datadisclosure.
So you do everything you can tonail it down, lock everything
down, but when you're dealingwith experts, there's ways to do
(44:16):
it.
There's a memorandum ofunderstanding you can undertake.
You make sure you don't putanything in the report, but you
do need the data at some point.
Speaker 1 (44:23):
Yeah, absolutely Good .
I mean, we're kind of gettingtowards our time.
I could talk to you for hours.
Speaker 2 (44:28):
Well, I'll see you in a few weeks.
Speaker 1 (44:32):
Yeah, I mean you just mentioned the UK AFI summer
conference is coming up on the.
Is it the 1st?
I think it's the 1st of July,isn't it 1st of July?
Yeah, nottingham.
So if you haven't signed up forthat, then I encourage you to
do so.
Top tricks, david, or oneoverall for listeners, for FIs
from either side, fromprosecution, public or private,
or on the defence side.
What would be your sort of topthing that you want us to take
(44:54):
away today?
What would help you from adefence point of view, or is
there anything that you thinkyou really wanted to get across
today for the listener?
Speaker 2 (45:02):
I'm going to say embrace peer review, whether
that comes from your colleagues.
But if it is from yourcolleagues, make sure they're
willing to give you a hard time.
Your colleagues should besparing you grief in the witness
box, which means if they giveyou a tough peer review, they're
doing a good job.
And then, if it comes to adefence, doing a peer review
can't speak for everybody, butcertainly at least for the key
(45:23):
board, consultants and then alsoa lot of defense experts I know
personally.
If they raise an issue, stopwhat you're doing and listen.
Don't get upset.
Listen and go right again.
What have I missed?
Or what have I not been given?
What am I missing is perhapswhat I should say To me.
That's what it is.
It's about.
(45:43):
Effective review is one of thebiggest things you can do to
mitigate problems and cases, andthe key is it being effective,
whether it's coming from yourown team or from another side,
or even outsourcing review Ifit's a big enough case, do you
want to get someone independentin just to sense check it,
because it's a big case, if youlike, or a very significant case
?
Speaker 1 (46:05):
Yeah, definitely, and I think most firms well, all
the firms that I've ever workedfor everything gets peer
reviewed by another and thattends to be quite a critical and
some people have problems withthat.
But if you've got an ego on,you're not used to that sort of
thing.
Some people don't like theirreports coming back loads of red
all over and comments on it,but you know, I think it's
absolutely necessary.
Speaker 2 (46:27):
Yeah, it might come back like that Because my peer
review is I want them to do itis necessary and, like I said, I
wrote a book about.
It's an autobiography, it'sabout my career, but a lot of it
focuses on why cases go off therails and also talks a bit
about other things likepost-traumatic stress and things
like that and dealing withadverse things.
So there's a bit of other stuffin there.
How to survive a hurricane yeah, you'll explain.
Speaker 1 (46:44):
I mean, we're not really well.
We are kind of interested inDNA if it's relevant to petrol
cans and bits and pieces.
But your analogy around thejigsaw and DNA I thought was
fantastic.
The different pieces of jigsawand some don't match on the DNA
profile and stuff like that.
I'd never really looked at itin that way before and you
(47:06):
really were.
That kind of section wasabsolutely fantastic in sort of
highlighting some of the issuesand problems around the DNA,
what we're facing now.
But yeah, again, I've got noproblem in plugging it joining
the dark side.
It's a fantastic book, it'sreally insightful and, as you
say, it's autobiographical.
Am I saying that right?
No, it's about you.
There's some fantastic lessonsin there, some.
There's some fantastic lessonsin there, some really really
good stuff.
So thanks very much, David.
I really appreciate you comingon and I really appreciate your
(47:28):
time and yeah, we've neverworked with each other yet but I
hope to see each other sometimein the future professionally.
Yes, sure we will.
Thanks ever so much, Thanksagain.
Speaker 2 (47:37):
All right, Take care mate.
Speaker 1 (47:39):
Cheers.
Hey, thank you for listening toCSI on Fire.
Please don't forget to like,subscribe and suggest future
topics on our web page.
Remember factor non-verbal.
Take care, good hunting.
I hope to see you on the nextone, cheers.
Hi, welcome to CSI on Fire, the podcast that takes
you behind the scenes of thefire investigation community.
I'm your host, mike Moulden,and episode after episode, we'll
attempt to excavate the oftendifficult but always fascinating
world of the fire investigator.
Welcome to CSI on Fire.
(00:30):
I think this is episode 19, Ithink, and I've got a fantastic
guest on today.
I've got David Shadel fromKeith Borer Associates.
Welcome to the podcast, dave.
Well, hello there.
How are you doing?
Thanks for coming on.
I really appreciate it and Iwas really keen to get you on
because you're the firstforensic scientist we've had on.
So I think you've got aninteresting background, a very
interesting background, a verydiverse background.
So just take us through, as Ido with every guest.
Take us through your history,your background in FI.
(00:53):
I know you're a certified CFI,but just take us through your
history, if you wouldn't mind,david, and tell us how you came
to be here on the podcastno-transcript.
Speaker 2 (01:28):
Also, the forensic labs in the England and Wales
were part of the home officeback then and if you had a PhD
you got in at a higher level.
And I did a PhD just so I couldget in at a higher level and I
figured I'd have lesscompetition at the same time.
That was my game plan.
The only trouble is that theyscrapped that system about the
(01:49):
time I got my PhD and I wasfishing for temp work in Durham
just to fill in, before Istarted really looking for jobs,
and there was someone there inthe temp agency said oh, if you
want to do forensics, there's aplace upstairs called Keith
Borer Consultants.
I said what in Durham?
They said yeah.
I said no.
So I stuck my head around thedoor and one of the scientists
(02:10):
there there was only a couple ofpeople at the time said oh,
you're looking for a job.
I said yeah.
He said got a CV, yeah.
And a week later I wasinterviewed and a week after
that I was working for them andI was jumping in the dark end,
as people like, because I had noidea about the differences
between prosecution and defensework and also civil cases.
(02:31):
But they were doingpredominantly criminal defense
and civil work, because backthen, believe it or not, civil
cases were legally aided, whichis something that's unheard of
these days.
It does happen occasionallyhere, but it's very rare.
It was defence work throughpredominantly legal aid and the
civil cases.
And that was the start of thecareer.
I was learning from not beingin a lab, I was being as a
(02:53):
consultant.
So I started out as aconsultant doing defence work
Fantastic.
Speaker 1 (02:57):
You sort of were into what you've called actually,
because you've got a book outand I've read about three
quarters of it.
It's fantastic, thoroughlyrecommend it for anyone who's
listening.
And you've sort of went intowhat they call the dark side,
what we would call on theprosecution side as a dark side.
So just tell us about that,tell us about what the
difference is betweenprosecution defense, and have
you ever done any prosecutiontype stuff?
Speaker 2 (03:17):
Yeah, so I did consulting work for several
years and then, as circumstanceschanged, I ended up in the
United States and I went on todo consulting work there and
after a couple of years with acompany called Firepro who are a
fantastic company the fireinvestigation side of it dried
up a little and I started tolook around and I got a job at
the Massachusetts State PoliceCrime Lab and became a
(03:39):
criminalist and then criminalisttoo.
And then the Cayman Islandswere looking for a chemist to
set up their forensic labs.
So I moved out to the CaymanIslands Along with Michael
Frazier we set up the forensiclaboratory for the Cayman
Islands and then I did whatessentially was prosecution work
there for eight years and I'vealso done another three years
back in Cayman as a scientificsupport manager.
(04:00):
So I have straddled the fencepretty well in my career to
about 50-50 over the years.
Speaker 1 (04:06):
Oh, fantastic.
And you say I read in your bookabout.
You kind of highlight thedifference between UK system and
American system, whereas in theUS, what would be the right
phrase?
Because you do it all, don'tyou?
Yeah, criminalistic.
So it's not like you're aforensic biologist, you're a
forensic chemist.
You would do the whole kind ofgambit.
Is that right?
You're a forensic biologist,you're a forensic chemist.
Speaker 2 (04:25):
You would do the whole kind of gambit, is that
right?
Yes, so you would get assigneda case.
I mean, a lot of the cases weresexual assault cases and you
were the sort of initial lookthrough that evidence.
So you get the evidence out,you look for trace evidence,
collect it.
You would look for, obviously,bodily fluids.
You take samples and collectthose and you work your way
through and then those samplesyou take would be analysed
(04:47):
further as necessary.
In many cases, just as it is now, a lot of the trace evidence
isn't relevant because theirattackers are known to the
victims, so they don't usuallyworry too much about them.
But you'd never know where itwas going to go.
But your job was just to sortthat out.
But part of it was going tocrime scenes and the police
would tend to do their ownfingerprints photography.
(05:08):
And then we would go in andwe'd collect any bodily fluids.
We'd test them before wecollect them, collect our own
samples, we'd collect clothingor items that might have blood
on them sheets, et cetera andwe'd take them back to the lab,
have them dried and then we'dlook at them.
So you really were looking forthe soup to nuts of that scene.
You went out there, you did allthe initial stuff, you worked
(05:29):
with the police and then youtook the evidence back and then
you finished the rest of thework, whereas in the certainly
in England and Wales you'd be onthe back end of that, so you'd
get the items from someone elselike typically a CSI.
There were CSIs as well andpeople we worked with.
I think it tended to be themajor cases they would call us
out.
So murders, serious offenses,they'll be the ones we go to a
(06:04):
number of cases, well numerouscases actually.
Speaker 1 (06:06):
What would you say is the danger of cognitive bias
and can you give us I rememberyou talk about a particular fire
case a monitor, for example,that the expert just wouldn't
accept?
So what do you see as theissues around cognitive bias in
fire investigation?
Speaker 2 (06:16):
In fire investigation and I'm going to say this is
something of a bold statement,but I personally think the
greatest risk of an innocentperson going to jail is in fire
investigation, and it's not acriticism of the fire
investigators, it's because it'sreally hard.
I mean, fire investigation isone of the few disciplines where
the first question you have toask is has there been a crime?
(06:40):
If there's a burglary, there'sa burglary.
If someone's got a knife stuckin them, they've got a knife
stuck in them.
A fire investigator has to goin and go.
Well, do we have a crime or not?
And when you add all the issuesabout trying to recover
evidence and understanding aprocess in a criminal
investigation, on top of all thethings that can happen in an
accident, and you put them alltogether, it's such a mammoth
(07:01):
task that it makes it incrediblydifficult to do.
You end up in a situation where, at any given moment in time,
you're working your way throughthe evidence, the front line,
but you might be completelyunaware of other things that
will affect your opinion.
But you get stuck into that.
I'm going to call it a rabbithole.
I mean, it's nobody's fault,that's just where you are at the
time.
(07:21):
And then somewhere along theline and it could be a year
later someone says oh, I've gotthat CCTV that covers that and
it might show you somethingcompletely different.
And the cognitive bias effectsunfortunately are subconscious
processes so you don't realizeyou're being guided by them
until you're in that situation.
(07:42):
But I'm going to give you anexample.
It was a water heater fire, theelectrical immersion heater
type.
It was that cupboard, we callit an airing cupboard, they call
it hot press in NorthernIreland and that thing that
caught fire.
The fire was very muchcontained within that airing
cupboard and the person in thehouse discovered the fire.
(08:02):
They'd had a bath.
They got out, they discoveredthe fire and then called the
fire brigade.
Now that was tagged as an arsonand for some reason the fire
investigator had gone in therewith a mindset that it was an
arson.
And I think there was a coupleof reasons for that.
I suspect the behavior of theoccupant didn't help because
they had problems with some kindof problem they had
(08:24):
psychologically which probablymade them quite hard to deal
with.
And then you add the stress ofa fire.
They're going to behave in avery neurotic manner.
But our programmingsubconsciously is when people
are behaving erratic at a firescene or your little radar for
arson goes up and you startthinking there's something wrong
here, and I suspect they justgot guided into that.
(08:44):
They did all the right things.
They said well, I need to ruleout electrical.
And they took a photograph ofthe immersion heater elements
and said I've ruled this out ascausing the fire because there's
no fire damage to it, and thenwent on to explain the rest of
the stuff.
But what they ended up tryingto do was trying to explain why
the charring on the underside ofthe boards that sit on top of
(09:06):
the immersion heater, theshelving, was okay because the
fire had started above that.
And I thought to myself you'vegot the physics the wrong way
around here, because to me thelogical reason why you've got
charring under those shelvingunits is because the fires come
from underneath.
Underneath, yeah, it's comefrom the water heater and the
only thing down there is a waterheater and it's electrical
(09:30):
components, and that aloneshould have been something where
you would step back and go.
This is odd.
But instead of saying this isodd, am I on the right path?
They said no, I'm going to tryand explain it by dropdown,
which I think that's the get outclause for a lot of things.
Oh well, it must have beendropped down.
Drop down.
Obviously it's responsible fora lot of things that we might
(09:50):
not understand.
But then what actually happened?
The photograph was a greatphotograph because it was taken
quite close up and you couldclearly see the wire.
Insulation was burnt and it wasin an area where nothing around
it had burned.
It was covered with a cap.
The cap wasn't burned.
The inside of the cap wascompletely clean, but the
insulation on the wire wasburned and they said this hasn't
(10:13):
burned, so it couldn't havecaused the fire.
I said no, you could see thatit's burnt.
And I wonder even if they hadgone back and looked at their
own photographs on a big screen,which is what I get the benefit
of, rather than looking at itwith your naked eye.
This is one of the advantagesof not being at the scene.
Rather than looking at it withthe naked eye and then taking a
photograph and then saying Icouldn't see any burning is
(10:34):
actually I have to look at thephotograph and then it's on a
screen that's huge by comparisonand I can see quite clearly and
also what you saw from that wasthe earth wire wasn't connected
to anything, and you add thetwo together, you go there's an
electrical problem here.
And that's the sort of thingwhere the bias affects the
cognitive, the subconsciouseffects somewhere along the line
.
And that's a good investigator.
(10:55):
And I think Itty Eldraw, who'swritten a lot about this, did a
podcast and he was asked thequestion well, are you immune to
bias?
And he just said no, of coursenot.
We're all subconscious.
It can happen to any of us andI and I think this is my message
for people who do frontlinework If you see a defense expert
(11:29):
come with a report, yourreaction is going to be oh,
they're just trying to muddy thewater.
So here we go again.
But bear in mind, they mightactually have spotted something
you've missed.
The first thing you should askyourself when a defense expert
comes along is what have Imissed?
Or, more importantly, whatinformation was I not given?
Where's that CCTV that someoneforgot to give me?
(11:52):
Or that one statement?
And that's how it works.
And when you deal with thedifference in prosecution
defense, you also have toremember there is a funneling
effect in all of this.
The defendants who know thatsomething's wrong will be very,
very passionate about the factthis is wrong.
I'm telling you this is wrongand they will force a defense
review, so you're more likely toget a defense expert finding a
(12:15):
mistake because the defendantknows it's not right, if that
makes sense.
Speaker 1 (12:20):
Yeah, so it's a pointer towards it.
Speaker 2 (12:22):
Yeah, you're putting an arrow towards it Now in a way
that could be a subconsciousbias, because if the defendant's
lying, will the expert for thedefense go?
Well, hold on, I'm going totake that as being true and then
subconsciously try and leadtheir analysis in that direction
.
So it does work on both sides,but I think in terms of overall
numbers.
Unfortunately, when cases cometo us, we see a
(12:43):
disproportionately high numberwhere there is a critical
failure, but partly that'sbecause it's driven by people
who know what the truth is, ifthat makes sense.
Speaker 1 (12:52):
Sure, and what would you say?
Those are naively.
When I joined the police in2000, 1999, 2000, I just thought
that every time CPS would takea case forward it must be
correct, it must be right.
And I've learned all over theyears and by seeing some of the
miscarriages of justice thatoften it does take someone like
yourself to have anothercritical eye on something too.
(13:14):
Like you say, I remember when Iworked for EFI Global, same as
you, I'd have a big screen up onthe so I could see that high
detail, I could see what was inthe background.
And I think there is a tendencyfor CSIs, for FIs, to become.
They look through the back ofthe camera and they only see
what's on the back of the camera.
You can kind of get a bittunneleddivisioned.
I was recently doing a reviewof a job and on body-worn camera
(13:38):
one of the attending firesenior officers he is an FI but
he's not involved in the actualcase he kind of puts out some
very kind of comments whichreally kind of start to direct
the police, knowing no betterbecause they're not especially
these police officers at thistime.
He sort of put some cognitivebias in there just by saying a
few comments without havingactually gone inside the scene,
(13:59):
and so I think you're absolutelyright.
Sometimes it takes that externalview and a willingness.
I think you call it the darkside.
That's what I know it to be.
From my very prosecution kindof biased point of view, it's
always been seen as a dark side.
But I think there's nothingwrong both prosecution and
defence in reviewing things andbeing prepared to actually go.
(14:19):
Well, quite rightly, as you'vesaid, what is the defence going
to look at?
What is the defence seen that Ihaven't seen, and I think
there's nothing wrong with that.
One of the biases is, onceyou've made that decision, you
don't want to change it becauseit affects you professionally,
and I see a lot of that wherepeople go well, I can't be wrong
.
I know I'm wrong.
It comes back to that TVmonitor job that you detail in
(14:40):
your book, where the guy isobviously wrong.
There's evidence, there'sphysical evidence to say that
that person is wrong, but hejust won't accept it.
Speaker 2 (14:48):
And I think that's when it's dangerous.
Yeah exactly, then the worry is,if that goes on a jury, then it
just comes down to who the jurymight believe Exactly, which is
a huge concern Francis Baconand this is 400 years ago talks
about.
Once a person's set their mindon something that they find
appealing, they will fight thatposition, even in the face of
completely contradictoryevidence.
(15:09):
They will fight it with someprejudicial violence rather than
accept that they might have tochange their minds.
And here we are 400 years laterand it won't change.
I mean, this is just humannature.
Is that it is now normal, whenthere's an issue that's been
raised in forensics, for thescientists or the CSIs or
(15:39):
whoever the experts are to meet,and specifically without any
lawyers and preferably beforethe trial starts, and then they
can talk through that, becauseinvariably and I mean this is
more common than not it's justbecause the I want to call them
prosecution experts.
I don't mean that they are.
That's who they're instructedby.
We're all experts for the court, but they've been given
(16:02):
frontline information which atthe time was perfectly valid,
but no one's ever gone back tothem and said, oh, here's
another 600 pages of documentsin this case.
Could you see it?
Could you have a look at themand see if it changes your
opinion On those three videos aswell.
Oh yeah, and those 600photographs?
And they don't get that chance,but the expert and strategist
(16:22):
by the defense does.
And when you meet together, youthen say have you read this?
Have you read it?
No, I haven't seen that.
I haven't seen that.
And quite often you can resolvethe differences in one go.
So you end up with what theycall a joint statement and
there'll be no disagreement.
Not every time, and it'sperfectly okay to disagree, but
at least you've come closertogether and you've had the
(16:43):
conversation, and that makes itsimpler for the court, but it
also, for me, allows us all tobe professionals.
I'm not immune to this, likeany of us.
As a defense expert, I'veactually brought issues up and
the prosecution's experts gone.
Oh Dave, sorry, you didn't seethis, did you?
And I'm like oh no, nobody gaveme that.
And then I've had to back awayfrom my position and go yeah,
(17:06):
okay, well, that answers thatquestion, and that's why we do
it, because it's aboutinformation sharing and it's
about transparency because it'sabout information sharing and
it's about transparency.
Speaker 1 (17:17):
Yeah, I did one of these a while back and it was
very interesting in that I thinkit's becoming much more.
I remember the old days and thedefence scientists would turn
up and there was like a tensionin the air and things like the
Met Lab.
When I was there, we'd have adefence expert come and there
was a bit of a tension in theair and what they want to look
at and that sort of stuff.
And I think to a greater extentthat's kind of, I think,
because if you know peopleyou've worked with people,
individuals before you knowwhere they're coming from and,
(17:40):
as you quite rightly say, we'reexperts for the court.
We're not there for prosecutionor defense.
The facts are the facts andthat's how it should be.
But I did one recently and itwas very obvious there was three
of us actually on thisparticular job and it was very
obvious one of the individualsinvolved just had not been given
any information, hardly anyinformation at all, and it was
like well, are you not aware ofthis?
You're not aware of that?
And I think that kind of jointmeeting between experts is
(18:03):
fantastic because it allows us,as you rightly say, without
lawyers advocating with justthree professionals or two
professionals in the room,probably know each other,
probably work with each other.
We will have to work with eachother again in the future, just
coming together and going right.
What are the facts?
What do we agree on?
What do we disagree on?
And I think that's really usefuland the way to go Fantastic.
(18:24):
I mean, you're quite active onLinkedIn and you're quite active
.
I know that Keith Borre hasjust gone through, or are going
through, the UCAS accreditation.
What's your view on ISOaccreditation for fire
investigation?
Do you think it's somethingthat we should be aiming towards
?
Do you think there's anyrestrictions around it?
Do you think there's anyproblems around it?
Speaker 2 (18:41):
I'm going to take that hot potato.
Speaker 1 (18:43):
A good man.
Speaker 2 (18:44):
I just think, at the end of the day, whatever we do
for quality has to be fit forpurpose, and the worry is about
ISO 17.020 and 17.
17025 were designed with acertain mindset and it's about
laboratory testing and surveyingand things like that.
There was this decision made toapply these to fire
(19:05):
investigation.
Well, I don't know if it's beenmade yet, because we still
haven't actually written thatpart of the module for the code,
but it seems to be.
That's the way it's going, themodule for the code, but it
seems to be.
That's the way it's going.
And then there's a secondaryissue is how will it apply for
sole providers or smallcompanies?
When this was raised in 2019with the House of Lords, who had
(19:27):
a technical review committeeinto forensic science and I gave
evidence to that committee oneof the things they determined
after having completed theirreview was that there should be
a separate way of managingquality for sole providers and
for small companies.
Partly of the mitigation factorsare for cognitive bias effects,
and to prevent miscarriages ofjustice is to have effective
(19:48):
peer review, and the best peerreview you can get in-house is
an effective one in-house.
But you might not get thatbecause if everyone's busy, they
(20:11):
might just read your report andgo, that looks okay.
That because if everyone's busythey might just read your
report and go, that looks okay.
Whereas an expert who'sindependently instructed is
going to go right back to thestart and follow the thing all
the way through with all thedocuments that potentially the
other expert didn't get, and theCCTV and the photographs, and
they're doing a quality review.
That's the whole.
Well, at least up until thatmoment in time, with everything
(20:32):
that's available in that case.
And you need that to preventmiscarriages of justice, because
there's enough of them that wecatch at that moment that they
don't end up like poor Malkinsonand spending 17 years in jail.
We catch them before trial andthe prosecution goes to trial
and offers no evidence.
Job's done.
And these are legitimate caseswhere, for no fault of any
(20:52):
individual, the case is just ona different rail, it hasn't
jumped individual.
The case is just on a differentrail, it hasn't jumped the
track, it's just on a differenttrack, a track that doesn't
really exist.
When you pull it back, you getthe thing reset and if you
create a quality system thatthen dissuades, minimizes, makes
it untenable for smallerproviders who provide the
service to exist, the worry isthat no one's checking as much.
(21:16):
And if no one's checking asmuch, you're going to end up
with potentially the miscarriageof justice slipping through and
innocent people going to jail.
So when you talk about qualityfor the criminal justice system,
one of their top rankingquality assurances has to be we
don't put innocent people injail.
So you don't want to create asystem where the back end of
(21:36):
that, by unintended consequences, you're going to lose the
backstop, the last final check,because of a bureaucratic system
that's been developed to tryand improve quality.
It's an ironic paradox that youcreate by trying to resolve
quality in one way, you actuallydecrease it in another.
I always thought why aren'tdoctors in the forensic science
(21:59):
code of practice?
They don't have to do all thethings we have to do as
providers.
They provide a massive amountof information in the criminal
justice system.
It's hugely relevant and itcould be absolutely critical to
a case.
But they're not in the code ofpractice, the forensic science
regulator's code of practice.
Why not?
Well, because they have adifferent way of doing things.
They have their owncertification bodies that they
(22:20):
answer to.
Well, in FIRE we havecertification bodies and we can
tailor those to fit.
So why can't we have acertification program as opposed
to going down the ISO route?
Why aren't there differentoptions?
That's the one thing I can'tquite grasp is why we can't have
a different way of doing it,rather than trying to bring up
an entire organization into aquality model that's designed
(22:44):
for laboratory, where we couldcertify individuals instead.
Or maybe there has to be ahybrid approach, because you
want to make sure your evidenceis treated right, you want to
make sure that documents aretreated right, and there are
processes in place, so theremight be a way of meshing two
together.
I'm not entirely convinced thatjust having one approach, which
is 1702 all for a scene, isperhaps the best way, but it is
(23:05):
a way of doing it and it can bedone.
I mean, the Americans haveshown that, the Danes have shown
it too, so it can be done thatway.
If that works, that's great,but it's just a shame we didn't
have something like CFI somehowin that process.
Speaker 1 (23:17):
That's an interesting point.
I've seen it from the CSI pointof view, having gone through
that process, is that I thinkyou quite rightly say you are
the back end and you are thefinal stop, if you like.
The final balance in check,really, and I think there
doesn't need to be.
My view is that it doesn'tnecessarily.
It's not necessarily that ISOisn't appropriate or necessary.
It's the fact that, from mypoint of view, no one seems to
(23:40):
be listening to any alternativeor to any issues or problems
that are coming up.
Lots of police forces arehaving to go through it from a
CSI point of view and lots offire services are going to have
to go through it from an FIpoint of view.
It just strikes me that this ishow it is and like it or lump
it and I know on the privateside, I mean on the defense side
do you have to go as a firm,like Keith Borer, having to go
(24:02):
for accreditation?
Speaker 2 (24:03):
We've had accreditation in some because
it's method-based accreditation,so you don't get accredited as
a company, you get accreditedfor that particular method that
you're using.
You could have 10 differentthings you do.
Two might be accredited.
The rest aren't.
For example, most of our workwe do is case review, which is
undergoing a review at themoment to see how there could be
(24:24):
a quality system applied tothat.
So that's been hosted by theChartered Society.
They're leading that at themoment, so trying to bring case
review somehow into a qualitysystem.
But we do have accreditedmethods for some of the things
we do in digital forensics, forexample, and handwriting
(24:45):
comparisons.
We're 1702 vibe accredited forthat.
It's a lot of work, it has value.
It's time consuming and it'sexpensive, but it has value.
The worry for me I think from aCSI standpoint, only having
read and I'm not a CSI, havingread some posts from CSIs is the
reduction in the amount of workthey get through.
Again, if you talk about aquality system, I've rarely seen
bad CSI work.
I generally find CSIs all do apretty good job.
(25:06):
They're trained well.
If they're doing the same jobafter accreditation but only a
third of the number of scenes,then the quality impact has been
negative because you've got thesame product but you're having
a third of it done, which thenhas an impact on the public, and
because you're not hiring threetimes more people to cover the
(25:28):
shortfall.
So less scenes get attended andif less scenes get attended we
catch less suspects becausewe're not looking for the
evidence.
Speaker 1 (25:35):
I mean I've been quite verbal on linkedin in that
regard, in the sense of when Ifirst started as a csi, we had
systems in place, there werestandard operating procedures.
Everyone went through apartfrom a couple of forces of the
met that can.
Everyone went through the sametraining program, were taught at
durham, at the national policecollege.
Everyone really had a similarthing and there were checks and
balances and quality standardsalready been built.
(25:58):
And what I've seen with the andI'm some might call me a
dinosaur but what I've seen withthe new generation is that csi
is coming in they think that twojobs a day is a busy day and
because you're having to record,because of the set out and the
quality requirements of ISO,you're having to record
negatives and that can take youhours to record.
Imagine going into a crimescene.
(26:19):
You record everything that'snegative.
No-transcript fire services arejust not going to be able to
(26:55):
afford to go through theaccreditation because, as you
said, I think if the governmentand we don't get into politics
now, but if it was supported andit was paid for it was free as
a service, then then I thinkyeah, great, but an awful lot of
money budget that could havebeen spent to submit
screwdrivers, to submitignitable liquid samples just
aren't getting submitted anymorebecause the quality management
(27:16):
is taking up a vast amount ofthat budget.
Speaker 2 (27:18):
Well, yeah, I can't speak from the budgetary side,
but I can from reviewing casesthat are going to trial, where
samples have been collectedbecause of suspected ignitable
liquids but they've not beensent to the lab.
And then a fire investigator isgoing to go into the doc
basically saying, well, my PIDgave a hit I think it was
ignitable liquid use or the docdid and there's a volume of
(27:43):
evidence out there of bestpractice which says you can't do
that and unfortunately you'resetting yourself up for a tough
cross-examination and I don'tthink the fire service and the
police should allow that.
They'll end up with strongercases if they just send it, if
that makes sense.
I know why they don't send it,because obviously there's
(28:03):
decision processes about whatyou're going to pay for, what
you're not going to pay for andwhat difference it might make.
But what you don't want to beis two years down the line
having not sent it, then tryingto backfill and the sad thing is
20 years ago this neverhappened.
We've actually managed to makethat portion of our service and
fire investigation worse, andunnecessarily so.
(28:24):
I think that certain changescould be made to say, well, if
you suspected ignitable liquid,enough to tell a CSI to collect
a sample, then, unless there'sno prospect of this case going
ahead, then you need to sendthat to the lab as a carte
blanche.
Just don't even think about it.
Just get it there, because ifyou make the decision a year or
two down the line, your bagsmight be compromised, the
(28:48):
ignitable liquid may havereacted with whatever's in the
bag.
There's so many things that canchange and you'll then lose
your evidence.
It's volatile.
That's why you collect itExactly.
Yeah, so you want to try andkeep it.
It just takes sticking a bag ina closet and then, over a year,
somebody putting something elsein there that has a sharp edge
and you punch a hole through thebag and then suddenly you're
(29:09):
done, and that won't happen ifyou send it straight away.
So I think there's certainlythings that need to be tidied up
in fire investigation.
Speaker 1 (29:16):
It's not happening yet, but yeah, I've seen a
couple of you reviewed and I wasinvolved on the defense side,
actually for a job in scotland,and I see a little bit more
reliance, the PID and on the dogand almost cognitive bias in
relation to where the dog'sindicated there.
They've excavated in thoseareas but they haven't excavated
in other places so they don'tnecessarily know the context of
that ignitable liquid and it's aworrying kind of trend I think.
Speaker 2 (29:41):
Well, we go back to the dogs, just to finish that
point, the training records forthe dogs.
You could argue to have themdisclosed.
And even in the trainingrecords the dogs do sometimes
miss a positive and theysometimes hit on a negative.
Speaker 1 (29:56):
Yeah, I mean, the dog is intelligence, isn't it?
The dog is intelligence.
It's not evidence.
That's how I've always treatedit.
Is that okay, the dog's there,and if the dog is indicated,
they're great.
But that doesn't negate lookingelsewhere for things or putting
that ignitable liquid, becauseyou don't know what it is until
you send it off and you've gotto put it in context.
And it doesn't mean that thedog's right, it's intelligence.
(30:17):
It helps you close down an area.
Speaker 2 (30:19):
It's presumptive.
Yeah, like looking for blood ina crime scene.
Speaker 1 (30:23):
Exactly.
I've seen a little bit of lazyand I am a CSI, so I'm 100% back
CSIs because they do afantastic job and they do it in
difficult circumstances veryoften.
But just started to see in acouple of cases I've looked at,
a little bit of laziness inrelation to the dogs indicated.
So job done type thing, andthat's obviously wrong and not
the right.
Anyway, let's talk about a bitmore about have you got a case
(30:45):
study?
Can you think of a job where,from an FI point of view, where
you've seen it go very wrong andyou've picked that up I know
you have so Well, we talked abit about the water heaters, a
classic one.
Speaker 2 (30:57):
There's three things where there's problems.
One is the prosecution arepretty much on the right track
but they've not finished lookingat the evidence correctly, for
example, the ignitable liquidsample being taken and analyzed,
and you'd have a much strongercase until a defense expert
points out well, the dog can'tgive evidence, the PID is
(31:18):
unreliable.
You have the evidence and bestpractices, you analyze it and
you haven't done it and it's notsomething a jury really wants
to hear in trying to deliberatea case.
That's one thing.
But where we see and I'mtalking about the critical,
critical failures, there's twotypes of fire investigation
which are quite unique to fireinvestigation.
One is it was actually anaccidental fire and that's
(31:43):
something that doesn't happen.
It does happen technically atmurder scenes, because people
can actually commit suicide andbe labeled as a murder.
But the chances of accidentalfires are relatively high and
you can go into a case and go Ithink this is an arson and
that's the railway track, that'sthe train off it goes and you
look at it and go no, they'vemissed it here and it's an
(32:03):
accidental fire and you've justarrested somebody who shouldn't
have been arrested and theirlife's been in case as a result.
That's one type of case.
The other type is, yes, it's anarson, but you arrested the
wrong person, and that comesdown to it's not really the fire
investigator's job.
But when you're reviewing thesethings from the beginning to
the end, that's when you seewhere the weaknesses are.
(32:27):
I went hold on a second.
There's a problem here.
The classic one I did wasthere's a few.
Actually One of them.
We managed to figure out whoactually did it halfway through
a trial, at which point thejudge looked at the prosecutor
and went what happened to yourcase counsel?
And he went.
I don't know your Honor, itseems to have disappeared.
So we had one where the CCTVshowed a person leaving and that
(32:55):
was the last person who leftbefore the person who found the
fire reported it.
But there's your bias effectright there.
Nobody thought could the personwho found the fire be the one
who caused it?
Now, as a fire investigator, Iknow that there is a certain
number of people who it's thesecurity guards, who the hero
syndrome the middle of the nightset a fire, then they discover
(33:17):
it and they become the hero ofthat situation and those
examples.
So I know.
You should always check whodiscovered the fire, who were
they, what were they doing andhow do you know they didn't
cause the fire.
And there's one instance.
The story is this teenager usesthe bathroom, leaves and then a
couple of minutes later a guygoes into the bathroom,
(33:37):
discovers the fire, reports itand so they arrest the teenager.
When you go back and look atthe CCTV, that wasn't disclosed.
I had to ask for it.
The guy who discovers the firespends way too long in that room
.
This is a bathroom that's aboutthe size of a spare bedroom in
the UK.
It's about a 10 by 10 room.
There was a fire in there andit was a thick black smoke.
(33:59):
There's plastic producers.
You'd know straight away.
They would have seen itstraight away and come straight
out, but they were in there waytoo long.
And they would have seen itstraight away and come straight
out, but they were in there waytoo long and nobody talked to
them.
They normally got a name ofthat person.
Nobody talked to them.
That was the basis of my reportto say I really worry about
this.
But even when I went to trial,counsel said to me oh so you
think this person thatdiscovered that they're the one
(34:21):
who might have done it.
I said yeah, but you said, butwhy?
I said wait a second, you'venot looked at the CCTV, have you
?
He said, well, I was going tolook at that.
Next I said look at it and comeback and talk to me.
He comes about five minuteslater, he goes.
What's he doing in there?
Precisely, he goes in there.
He's in there way too long.
They try to get a statementfrom.
It was a restaurant place thatthe manager, but who this person
(34:52):
was that reported the fire andhe said, oh, we haven't seen him
since that night.
Surprise, surprise, this poorteenager had his whole life put
on hold.
He was going to go touniversity.
He had to cancel that for ayear because they didn't know
what was going to happen.
And again, it's no criticism,it's just what happens.
But thankfully, because we havea system in place to check, we
managed to catch that.
So they're the ones, like Isaid, yeah, it's an arson, I
totally agree, but you mighthave looked the wrong way.
And then the other ones are theones, like I said, the
accidental one.
And another thing we getinvolved in and this happens,
(35:21):
I'd say, the most frequentlyit's about mitigation and I
think that comes down tocharging levels and people get
charged with arson with intentto endanger life, charging
levels and people get chargedwith arson with intent to
endanger life and that carries aheavy time in jail.
You're intending to endangersomeone's life.
In other words, you'reintending to kill them, or
that's the charge.
And we look at them and you gowhere's the intention?
But we can't talk aboutintention because we're not
psychologists.
This is not what we do.
(35:42):
That's for the jury to figureout.
But we look at the cases andyou put the package together and
try to put a light on the factthat, well, the charge needs to
be proportionate, but at leastwhen it comes to the review,
yeah, we agree, this is an arsonand there's only so many people
had opportunity to cause it,and so it goes on.
So that's another type of casewhere you look at it.
That's really about mitigatingthe level of charge and
(36:03):
sometimes, when we do that, theprosecution will shift the
charge and the person will pleadguilty.
So we do save the court a lotof time and the expense of a
trial.
Speaker 1 (36:13):
That exact scenario happened with me and then,
purely from that contextualpoint of view, there was a fire
in a residence and socialhousing.
It was in Scotland, so I thinkthere's willful fire raising in
Scotland.
So when I looked downstairs inthe flat there was ignitable
liquids there and it was givenout as a painter's like, as a
welcome decorator's pack.
There was ignitable liquid,white spirit, given out with
that and they just took that.
(36:34):
They just saw that they weregoing for the higher charge
because they were saying it wasdeliberately set using ignitable
liquid and they hadn't put thecontext.
Well, hang on a minute, thethree flats downstairs have all
(37:07):
got exactly the same.
They were all kind of verysmall flats and they had exactly
the same layout.
There was white spirit there.
But when I got there a coupleof days later I went downstairs
into the other flats and madethose inquiries with the council
do you give out any sort ofpainters, decorators?
Because when I dug it out, whenI went further, there was the
silver bands from the paintbrushes.
There was tins of paintunopened.
They'd literally dug out onefoot by one foot where the dog
had indicated.
(37:27):
So yeah, interesting,interesting, and I think it's
good to say that I don't thinkmost of the stuff that I've seen
when I have reviewed is it'snot malicious.
It's people actually trying tobe helpful, but it's just like
you haven't had the rightinformation or, as you've said,
you haven't had access to thatCCTV, because people are quite
guarded about things like that.
You mentioned their disclosureand I know that on the defence
(37:51):
side, I know you have someissues around disclosure, so
should we just talk about thatfor a little bit?
Speaker 2 (37:57):
in my book somewhere as one of the greatest problems
with the criminal justice systemraised at a legal level.
And it is.
It's a huge problem.
But I wrote to the Ministry ofJustice in the early 90s because
at that time, digital imageswere just starting to appear and
we would be sent books ofglossy photographs.
(38:18):
And I said, well, why can't wehave the digital images?
Because we can zoom in and outmore easily rather than trying
to use a magnifying glass, whichis what you do with glossy
photographs.
And I was told, no, because wecould edit the photographs.
That was the mindset back then.
Oh no, you could edit them.
And I said, yeah, but you'vegot the original copy.
So if I've edited them, it'd bepretty obvious.
(38:38):
Oh no, you can't have them.
And I said, yeah, but you'vegot the benefit of these.
They are better.
And so I wrote the Ministry ofJustice and said, well, I feel
like this is prejudicial becausethey've had this benefit and we
don't.
And the MOJ wrote back and said, no, he's an expert, you're
entitled to have them Anytime.
We had a challenge on it.
We just produced his letter andeventually we get JPEGs by
default until well recently.
(39:01):
Now we can't get them anymore.
How did we end up back in thesituation where the JPEG
photographs are still the samevalue as they were back then?
With a good, high resolutionJPEG photograph that's in focus,
you can stand as if you'restanding with a big enough
screen, as if you're at thescene, and zoom in and out into
the image in a way.
(39:22):
That's actually quite hard todo if you're at the scene,
because at the scene you'd haveto walk forward three paces and
peer down this.
You just zoom in and out.
You can look at things soquickly.
But you can't do that with PDF.
The compression is too high.
We challenged this and we'retold our disclosure is met.
No, it's met for the jurybundle, but it's not met for a
defense execute.
And then what happens is wewaste weeks and solicitors time,
(39:45):
cps time, police's time, ourtime, sometimes the judge's time
, because the judge has to thenorder that these photographs be
released.
And then we go around incircles but we see that that's
fire investigation.
Same with CCTV.
They may do a compilation ofCCTV, which is great for a jury,
but I want to see everyseparate channel because I want
(40:06):
to know what it's not showing meand sometimes you see things as
a fire investigator, you'll goright.
The fact that there's no firehere at this time is relevant.
Now, putting a compilationtogether, well, there's no fire
there, it's irrelevant, so we'renot going to, we'll cut it out.
There's a relevance to that tome, and also subtle things In
fact.
This is one a colleague was theprosecutions expert of our
(40:26):
investigation pointed out whenwe were reviewing the whole CCTV
.
He goes oh, look, that lightwent off and it was the fire
exit light went off.
And with the CCTV time, he saidwell, that means the electrics
must have been breached at theceiling level.
I was like, yeah, you're right,all right, the time down,
that's a marker, that's part ofyour timeline.
But in almost any disciplinewe're having disclosure problems
(40:49):
.
So sell site getting the calldata records.
They'll send a PDF.
You can't type in 10,000records.
You need the Excel spreadsheets.
Although we'll get call datarecords that have been modified
In imagery cases, they'll sendmassively compressed files.
You try to do an imagecomparison.
You need the originals andfingerprints getting access to
(41:10):
fingerprint evidence to look at.
Everything's just beingchallenged and ultimately we're
entitled to see these things, todo the review.
But the fact that every one ofthem gets challenged so often.
I can't even imagine how manyhours per year between everybody
involved the solicitors, us,the prosecutions experts, the
OICs, the judges just to getsomething.
(41:32):
That should be a given.
And if there's one thing weshould try and fix in the system
, it's just a pamphlet that saysif a defense expert asks for
these, the answer is yes, howcan we get them to you?
You won't get into trouble,it's not a problem, and just
have a list of things where youcould just get them, because at
the end of the day, we're allworking for the court and if you
have a report saying I've askedseveral times to get the best
(41:55):
resolution of these, I haven't.
I've done the report based onwhat I was given.
However, I consider the qualityof these is insufficient for
this purpose.
My observations are preliminary.
Further information may requirea member of this report and
you're forced to produce thatfor court and it gets served.
The first thing the judge isgoing to say is why didn't the
expert get the right information?
(42:16):
And everyone's looking verysheepish at that point and the
trial has to be stopped.
And then, basically, theinformation provided added to a
month's delay.
Speaker 1 (42:25):
It's very similar to the Ignite.
You know, not testing it wouldsave you money front-end.
You've got to spend outfront-end but it's going to save
you money thousands of hours ofcase prep and judicial time at
the back-end.
And have you seen much sort ofscanning kind of stuff?
Do you get access to thescanning?
Obviously, 3d scanners arebeing used more and more at fire
scenes and crime scenes.
Do you get to see that kind ofinformation or not?
Speaker 2 (42:48):
We have seen it, and it's just as long as we get in a
format, because we don't havethe scanning software.
As long as it's in a formatthat's an exportable format, and
we have had that, and some ofit's really, really useful.
It's not great for detail, no,it's great for patterns like
macro patterns, but if there'san area where I go that looks
interesting, I'm hoping the CSIis took in a nice 10 megabyte
(43:11):
picture of it, beautifully infocus.
Which CSIs are great at doing?
You go, oh yeah, okay, thatshows that in more detail.
I think they're a great tool ina complex scene.
They're a great tool for anoverview.
I think the road traffic peopleuse them quite a lot as well.
They'll use them for theiranalysis.
I've seen them a couple infatal cases where we've had that
information come through.
That's the other thing too.
(43:32):
Oddly enough, though, it's theserious, serious cases where,
generally, disclosure has notbeen a problem, but I think it's
because they have a disclosureofficer and they go.
What do they want?
Speaker 1 (43:43):
Yeah, no problem.
Speaker 2 (43:43):
Here.
Speaker 1 (43:44):
There's someone to manage it in-house, as opposed
to a dedicated officer, exhibitsofficer or disclosure officer.
There's someone to manage thatand understand the data,
disclosure and all that goodstuff and all that nightmare.
Speaker 2 (43:54):
It's a fear thing.
I think it got markedly worsewhen GDPR kicked in, and I think
people are worried they'regoing to disclose something
that's going to get them intotrouble.
I totally get it, because Iworry about the same thing.
I worry I'm going to dosomething that might get me
trouble because of datadisclosure.
So you do everything you can tonail it down, lock everything
down, but when you're dealingwith experts, there's ways to do
(44:16):
it.
There's a memorandum ofunderstanding you can undertake.
You make sure you don't putanything in the report, but you
do need the data at some point.
Speaker 1 (44:23):
Yeah, absolutely Good .
I mean, we're kind of gettingtowards our time.
I could talk to you for hours.
Speaker 2 (44:28):
Well, I'll see you in a few weeks.
Speaker 1 (44:32):
Yeah, I mean you just mentioned the UK AFI summer
conference is coming up on the.
Is it the 1st?
I think it's the 1st of July,isn't it 1st of July?
Yeah, nottingham.
So if you haven't signed up forthat, then I encourage you to
do so.
Top tricks, david, or oneoverall for listeners, for FIs
from either side, fromprosecution, public or private,
or on the defence side.
What would be your sort of topthing that you want us to take
(44:54):
away today?
What would help you from adefence point of view, or is
there anything that you thinkyou really wanted to get across
today for the listener?
Speaker 2 (45:02):
I'm going to say embrace peer review, whether
that comes from your colleagues.
But if it is from yourcolleagues, make sure they're
willing to give you a hard time.
Your colleagues should besparing you grief in the witness
box, which means if they giveyou a tough peer review, they're
doing a good job.
And then, if it comes to adefence, doing a peer review
can't speak for everybody, butcertainly at least for the key
(45:23):
board, consultants and then alsoa lot of defense experts I know
personally.
If they raise an issue, stopwhat you're doing and listen.
Don't get upset.
Listen and go right again.
What have I missed?
Or what have I not been given?
What am I missing is perhapswhat I should say To me.
That's what it is.
It's about.
(45:43):
Effective review is one of thebiggest things you can do to
mitigate problems and cases, andthe key is it being effective,
whether it's coming from yourown team or from another side,
or even outsourcing review Ifit's a big enough case, do you
want to get someone independentin just to sense check it,
because it's a big case, if youlike, or a very significant case
?
Speaker 1 (46:05):
Yeah, definitely, and I think most firms well, all
the firms that I've ever workedfor everything gets peer
reviewed by another and thattends to be quite a critical and
some people have problems withthat.
But if you've got an ego on,you're not used to that sort of
thing.
Some people don't like theirreports coming back loads of red
all over and comments on it,but you know, I think it's
absolutely necessary.
Speaker 2 (46:27):
Yeah, it might come back like that Because my peer
review is I want them to do itis necessary and, like I said, I
wrote a book about.
It's an autobiography, it'sabout my career, but a lot of it
focuses on why cases go off therails and also talks a bit
about other things likepost-traumatic stress and things
like that and dealing withadverse things.
So there's a bit of other stuffin there.
How to survive a hurricane yeah, you'll explain.
Speaker 1 (46:44):
I mean, we're not really well.
We are kind of interested inDNA if it's relevant to petrol
cans and bits and pieces.
But your analogy around thejigsaw and DNA I thought was
fantastic.
The different pieces of jigsawand some don't match on the DNA
profile and stuff like that.
I'd never really looked at itin that way before and you
(47:06):
really were.
That kind of section wasabsolutely fantastic in sort of
highlighting some of the issuesand problems around the DNA,
what we're facing now.
But yeah, again, I've got noproblem in plugging it joining
the dark side.
It's a fantastic book, it'sreally insightful and, as you
say, it's autobiographical.
Am I saying that right?
No, it's about you.
There's some fantastic lessonsin there, some.
There's some fantastic lessonsin there, some really really
good stuff.
So thanks very much, David.
I really appreciate you comingon and I really appreciate your
(47:28):
time and yeah, we've neverworked with each other yet but I
hope to see each other sometimein the future professionally.
Yes, sure we will.
Thanks ever so much, Thanksagain.
Speaker 2 (47:37):
All right, Take care mate.
Speaker 1 (47:39):
Cheers.
Hey, thank you for listening toCSI on Fire.
Please don't forget to like,subscribe and suggest future
topics on our web page.
Remember factor non-verbal.
Take care, good hunting.
I hope to see you on the nextone, cheers.
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