28

There was another change in our profession, one that seemed to accelerate at an alarming rate when I arrived at St George’s: the stress involved in court appearances.

Forensic pathologists of the past were household names and every newspaper reader between the wars knew who Sir Bernard Spilsbury was: a sort of Sherlock Holmes figure whose brilliant analysis of any case ensured that, if he were appearing for the prosecution, the defendant would be hanged. Long after his death, the icon’s cases were re-examined and his logic found sometimes to be less than Holmesian. But at the time it was unthinkable to challenge him.

His successor was my own hero, Professor Keith Simpson. Simpson – whom, at the end of his career and beginning of mine, I had actually breathlessly watched carrying out a post-mortem – was a man with far more humanity and humour than Spilsbury. But he, too, operated in the days when the expert witness was held in such regard that he was rarely challenged.

In my early years of practice, court appearances hadn’t been too bad. In the first months I avoided controversial cases if I could, although it was hard to know in advance what would turn into a circus. In general, counsel just wanted the facts from the pathologist: there was then still, if not the respect of earlier ages, at least its residue.

However, by the time I reached St George’s, barristers had begun to see post-mortem reports as a possible chink in the opposition’s armour and more and more regarded the testimony of the expert witness as an opportunity to stick the knife into the other side. Some pathologists enjoy this. For anyone with macho pretensions, courtroom barracking is the professional equivalent of a Saturday night fight and there are many who are ready to roll up their sleeves. Watching their courtroom appearances would leave me open-mouthed and incredulous.

QC: Do you mean to tell me that you are absolutely sure that the knife wounds were inflicted while the deceased was lying down?

CONFIDENT COLLEAGUE: I do.

QC: You are certain?

CC: I am.

QC: But are you aware that we have heard from two witnesses that he was last seen walking down the Old Kent Road?

CC: I am aware of all witness statements.

QC: Then will you perhaps entertain the possibility he –?

CC: I will not.

QC: You will not even say there is a possibility that –?

CC: I am sorry that I have to remind you I have sworn an oath today. An oath to tell the whole truth and nothing but the truth. Therefore, you can produce a witness saying the deceased was playing premier league football or that he was walking down the Old Kent Road or anything at all, but it is still my duty, my oath, my role as an expert witness, to tell the truth and only the truth as I see it. (sonorously) And therefore I tell you that this man was stabbed as he lay on his back.

How I envied that colleague. I knew I could never be like him. In those circumstances I cannot but admit the possibility, however slim, that I may be wrong, that there are other explanations, other versions of the truth. While my job requires me, at the same time, to insist that I have reached the correct conclusion.

My favourite court was the one that, in theory at least, is non-adversarial and informal: the coroner’s court. Here, the coroner is leading an inquiry into the truth. Here is the deceased’s wife, sitting an arm’s length away, red-eyed, anxious for the truth but fearing it, still shocked many months after the death. Here are the deceased’s children, tearful, angry, telling the coroner they don’t think it was an accident and they have a good idea who was involved. Here are his friends, awkward, supportive, overawed by the court setting.

I turn to the relatives in order to explain, as simply, kindly, clearly as I can, causing as little pain as possible, how the deceased’s life ended. I answer their questions. I nod sympathetically. Often, they ask the same questions again and again as if they can’t hear the answers, no matter how hard they listen. The coroner thanks me and I return to my seat.

As I leave, some relatives catch me to ask the same questions. Again. I tell them once more that he really didn’t suffer, the end came quickly, he probably did not have time to comprehend what was happening, he was otherwise in good health, no, there was no evidence of cancer and the chest pains he used to complain of were not caused by heart disease.

Usually, the coroner then reaches a verdict. Accidental death, suicide, natural causes, misadventure, unlawful killing … the relatives leave feeling emotionally exhausted but with a sense that death’s formalities are all over now. They have listened and have, hopefully, been listened to. The deceased’s case has been fully examined in public and the reason for and fact of his passing officially stated.

If only the criminal courts had the same degree of humanity. There are few jobs where it is routine to stand up in public and defend your professional opinion in the face of very personal attack. There are, of course, expert witnesses who get the reputation of being a liar for hire. I’m not one of them and don’t like to be treated that way by solicitors asking if I might alter my view a little or delete an inconvenient paragraph in my report. When I chose this career, I thought that I would be conveying the truth about the dead to the living – who would be grateful to hear it. But, as we approached the new century, I instead was starting to feel like the faithful dog that proudly lays a stick at the feet of his master only to receive a hearty kick for his efforts.

Despite all this, I usually go to court feeling confident. I know my subject, I know my findings, I know my conclusions. But, once in the witness box under oath, I have no control over events. The barristers are in control, and when they say I must stay and answer questions, if there is no intervention from the judge, then stay I must.

Not long at St George’s, I had an experience in the witness box which was so unpleasant that it gave me many sleepless nights and seemed to point at things to come. I had no idea, when I performed the post-mortem on a ‘rent boy’, or teenage male prostitute, that this case would not be straightforward. He had been found the night before and had died in hospital. His body looked extraordinary. He was covered in livid bruises, and I do mean covered. He was virtually a definition of that old threat adults shouted at naughty children in my day, ‘I’ll beat you black and blue!’

I counted 105 bruises and many, many abrasions. The weapon used was a cylindrical metal bar from a set of weights. The bar had cross-hatching at the ends, which was reproduced in some of the wounds. There were abrasions also, where, it seemed to me, the circular end of the metal bar had been used in a sort of stabbing action.

It is unusual for someone to die of bruising, but the nineteen-year-old victim had sustained a remarkable number of blows. I gave the cause of death as multiple blunt trauma. In fact, once the patient arrived in A&E he developed a disorder called disseminated intravascular coagulation, which arises from the overactivation of the body’s defence system against trauma: this results in the blood-clotting mechanisms being overwhelmed and so further, almost continuous, bleeding takes place everywhere, including from vital organs. Shock follows and, in many cases, death.

I went to the block of flats where the events took place. The young man had been found on the third floor, but he had been beaten on the ninth floor, so he had somehow staggered down seventy-four stairs before collapsing. I measured the steps and the risers but it was clear to me that his injuries, except possibly for one or two where he had stumbled on the stairs, were caused because he had been beaten by the iron bar, and not because he had fallen downstairs.

The defendant, also a male prostitute, also about nineteen years old, was actually the deceased’s best friend, and they shared the same ‘uncle’ who pimped them or funded them or both. It has amazed me, over the years, how frequently men (but not noticeably women) will kill their best friend. And brothers commit fratricide even more frequently. In this case, the deceased went to the defendant’s flat. They drank all afternoon and evening: the dead lad’s extrapolated blood alcohol levels were around twice the drink-drive limit. It was just before midnight that a resident on the third floor called an ambulance: she had found the victim lying injured outside her flat. He was taken to hospital but died less than twelve hours later.

What had happened?

In my opinion the friend started to hit the deceased and just could not stop. Eventually, the deceased escaped from his flat and down the stairs. If his attacker had reasoned at all he had probably reasoned that no one ever dies of thumps and bruises – which is a fallacy.

I received notification that I was being called by the prosecution as an expert witness. That was routine. And it felt like a routine case. I did learn that the defence barrister was one I recognized, a particularly persistent tiger. An old tiger, actually. But not without teeth. He was known for stalking expert witnesses but I was still not really concerned. The case was quite straightforward and I’d probably be in and out of the witness box in a few hours.

At a pre-trial conference with the prosecution, counsel had warned me that he would be going through each of the 105 injuries with me. I hoped that after such a marathon it would be so obvious to the jury why the young man had died that the defence would have no further questions and I would be allowed to go.

I took the stand and made my oath. The court had been supplied with copies of some of the post-mortem photos: not as sanitized as the cartoonish images we use today, but nothing too horrific, and each area of bruising was documented and numbered. I had prepared these photographic exhibits and given them to the Crown Prosecution Service well in advance, but, as usual where pictures are concerned, there was a lot of bumbling about. Officials stumbled blindly here and there with the wrong pictures, judge and jury found they had different ones, people passed pictures to other people and I had to suppress hysterical laughter at the sheer disorganization of it all.

Prosecuting counsel began by lulling everyone to sleep as we discussed in detail, as previously agreed, each one of the 105 injuries. In the course of this, I made two small errors, both picked up in a kindly way by prosecuting counsel. The first was on injury 11 on the right-hand side of the back.

ME: … indicating that once again that injury has been caused by a linear blunt object of similar size to the object that caused the injuries on the left-hand side of the chest.

QC: When you refer to the chest, you mean the back?

ME: Oh, I do apologize, yes I did. Those injuries I have just been talking about are the highlighted injuries to the back.

A daft error. And idiotic when I did it again, much later:

ME: … and as you can see, injury 71 is a ten by three centimetres deep bruise.

QC: Now, did you not, in your report, in addition to those numbered injuries, find something else here?

ME: Indeed, once again as with the chest, I found some area of parallel bruising over the legs.

QC: As with the back?

ME: As with the back. I am sorry. You are quite right, I am confusing the back and the chest. Over the back were, at least, three areas of parallel bruising …

Considering the enormity of the crime we were discussing, these mistakes seemed small enough. I said back when I meant chest and was corrected. I don’t think I confused the judge, jury, prosecution or defendant. Counsel for the defence, however, must have been rubbing his hands.

When the judge asked the defence how long their questions would take, because he was deciding when to give the jury a break, the old tiger said, rather ominously, that, since new material had just emerged, it would perhaps be better to have the break now.

There was a twenty-minute pause, one that chess players might regard as strategic. I spent it wondering just what the new information was. Was it something I had said? I remembered defence counsel’s reputation and, sure enough, within a few minutes of our return …

Defence QC: You have, I think, on two occasions, referred to the chest when you meant the back?

Oh-oh. When a QC tries to catch me out on small and insignificant errors to prove to the jury my incompetence early in the cross-examination, then I know that there’s trouble ahead.

ME: I did indeed, yes.

QC: That is a mistake that can be easily made, can it not?

ME: Well, yes, it is easy to confuse these things. I tend to consider the back of the chest and the front of the chest.

QC: But, Dr Shepherd, that is not what you said.

ME: No. I mistakenly said chest when I meant back.

QC: Quite a mistake in its way, is it not?

ME: Well, it is a mistake. I’m not sure how ‘quite’ a mistake it is.

QC: Very well. When you are more precise though, perhaps you expect a higher degree of accuracy. For example, the weight of the metal bar (referring to the murder weapon here) – 450 grams. Is that right?

ME: That is what my notes say.

QC: Well, we shall be hearing, no doubt, an admission of evidence that it was 421 grams. Not a great deal turns on the weight, except the accuracy of what you say.

I felt myself turning red at this point. Confusing chest and back wasn’t serious but being accused of getting the weight of the alleged murder weapon wrong might look careless to a jury. No time to think about it; defence counsel, without warning, entirely changed subject.

QC: If a man had some drink – it all depends how much, and whether he is accustomed to it – it may affect his steadiness of gait?

ME: It may.

QC: And, if he has suffered some physical trauma – blows – that will not improve matters, will it?

ME: Well, I think that depends on the blows he has received.

QC: Now, Dr Shepherd, you said the deceased had received about a hundred blows, is that right?

ME: (very carefully now) That is … an approximation.

QC: Now follow this through as a logical thought, would you please. You are a doctor, called to a flat on the ninth floor. You have been told and you can see a man has had … let us take your evidence at full strength … 105 blows. He says, ‘I want to walk down to the third floor. I know I had a drink.’ There are seventy-four steps and eight and a half landings. Would you say, ‘All right, old boy, get going. I’ll see you at the bottom?’

If I hadn’t been under oath and giving evidence, I might have laughed. Would the QC, on finding himself on the ninth floor of a block of flats with a drunken young male prostitute, really address him as ‘old boy’? But the real concern for me was: where was this going?

After an endless series of further questions about if, how and why I would help a drunken rent boy down the stairs in the middle of the night, the QC exploded in a manner oddly reminiscent of my father.

QC: Can I come straight to the heart of the matter and not pussyfoot around answering and questioning? You would have wanted to make sure he did not fall down the stairs – seventy-four of them – would you not?

ME: That would be one of my concerns, yes.

QC: Yes. Because if a man had been subjected to the number of blows you indicated, he might fall?

ME: Clearly, anyone in that circumstance might fall.

QC: Thank you. If he fell on uncarpeted stairs, he might injure himself?

ME: Certainly, a fall onto the lower stairwell I saw could result in injury, yes.

QC: Yes!

Good heavens. Surely the defence was not going to argue that the 105 injuries were virtually all caused by the victim falling downstairs? Surely he would not try to persuade the jury that this was not a murder with the metal bar but just an unlucky series of falls? The idea was absurd.

Counsel asked me to describe the stairwell in minute detail, although in fact the jury had been given pictures of it. I lost count of the number of times he repeated how many stairs there were. I think everyone in court must have dreamed about the number 74 that night. And a fall down these seventy-four concrete stairs, he kept insisting, could be very serious. I was unable to contradict him. But I didn’t believe the deceased’s injuries, or at least the fatal ones, resulted from falling downstairs.

Then he went back to the injuries. Individually. Again. All 105 of them. One by one, he asked me to prove they had not been caused by the deceased’s alleged fall, and one by one he challenged each answer.

This cross-examination amazed me. The deceased had been a drifter who had lived most of his childhood in and out of care, had probably spent at least some of his subsequent time living on the streets and had recently been released from jail. The defendant’s background was very similar. If either one had ever received a fraction of the public money, care and interest which was devoted to this trial then I doubt there would have been a murder.

As for the defence barrister, it was good he was working so hard to defend a client who was clearly from the margins of society. Had he ever passed the lad huddled in a doorway, I don’t expect learned counsel would have looked at him, let alone thrown a coin in his cup. But now the young man was on trial for murder, legal arguments about him consumed the barrister. I wished he could do his job without attacking my reputation as an expert witness. But I knew that in another case and with another jury we might be on the same side and then, instead of excoriating me, he would be praising my experience and skills.

The cross-examination continued for the rest of the day and then carried on the next morning. And the next afternoon. And the following morning. Now the defence QC wasn’t just arguing that the injuries were caused by falling downstairs but that the cross-hatching from the surface of the iron bar reproduced on the victim’s skin was actually simply caused by the warp and weft of his cotton T-shirt.

Then, many tea breaks later, as I returned to the witness box ready for a few more rounds with my back against the ropes, I watched him bounce in, a spring in his step and his eyes darting dangerously beneath his wig. I knew the tiger was planning to pounce.

QC: Alcohol, I suppose, if you are affected by it, will make you, perhaps, slightly more liable to bleed than would otherwise be the case?

ME: In the chronic alcoholic whose damaged liver may have blood-clotting problems, yes. But I found nothing to suggest that is the case here. I believe alcohol would have a very minimal effect.

QC: Do you know anything about that as a clinician?

ME: No, I do not.

QC: Not aware of that?

ME: Not particularly.

QC: What do you mean, not particularly? Are you aware of it?

ME: I am not aware, throughout my experience, of anyone who has suffered significantly more bruising when they are under the influence of alcohol than someone who is sober.

That was not the answer counsel wanted to hear. He argued and argued with me that alcohol dilated the tiny blood vessels on the surface of the skin – which I agreed with – and therefore that drinkers were much more vulnerable to bruising – which I did not. I lost count of the number of times he took me, step by step, through his logical but erroneous deduction that the victim was covered in bruises simply because he had been drinking. I really began to doubt who had been beaten by an iron bar, the victim or me, but I stuck steadfastly to scientific fact. Finally, the QC exploded.

QC: Where do you get this from? Can you do some research overnight?

ME: I can consult the preclinical medical textbooks about the effects of trauma on the skin.

QC: What book do you suggest I consult overnight?

ME: I would suggest you consult any molecular biology book, I’m afraid I cannot give you a name.

QC: Aren’t you familiar with any?

ME: Perhaps a textbook by Guyton will help, I cannot tell you which edition is current, I think the third or fourth edition. Or any haematology textbook will cover it.

QC: Any haematology author you can name?

ME: Not specifically, no.

JUDGE: How many pages is counsel likely to have to read, Dr Shepherd?

ME: I’m afraid I cannot help you with that.

QC: It is beyond me, but I shall still have a look.

JUDGE: Yes, and pass it to me afterwards, please, Counsel.

QC: I will, M’Lud.

By now I hated both the QC and the judge and suspected that they were members of the same chambers, or at least the same London club. Once, when the judge showed impatience with the defence, the QC asked to speak to him without the jury present. The jury, press, public and I filed dutifully out of the courtroom. When counsel and judge are talking in this way it usually means that a point of law is being argued and, on returning, there is a distinctly chilly atmosphere in the court, with one barrister smiling and the other sulking. But these QCs and this judge were all smiling happily when we returned, like pals at a fireside.

The defence was trying to explain away the horrific beating the dead lad had received by persuading the jury he had fallen downstairs (did I mention that there were seventy-four stairs?) and in the course of this he had become so badly bruised because he’d had a few drinks. I spent the evening feverishly phoning friends to discuss bruising and searching the hospital library for that textbook.

The next day we were at it again. It was all I could do to contain my own homicidal feelings.

Defence QC: You referred me and the court to a textbook. Guyton.

ME: Indeed.

QC: Have you got it with you now?

ME: I have a copy now.

QC: Do you have the passage you relied upon?

ME: I have marked the page that deals with what happens in the body following damage to a blood vessel.

QC: You’ve got it there?

ME: Yes, in this particular edition it is chapter 36.

QC: Which edition?

ME: I believe the eighth.

QC: Hmm. You had, of course, referred us to the third or fourth edition.

ME: I think I said I did not know which edition is most current.

QC: May I see it?

But I think he had already seen a copy. He asked me endless questions about platelets and clotting in an attempt to prove his point until the jury was nodding off and even the judge interrupted.

JUDGE: Please forgive me, but what I would like to ask Dr Shepherd is: this chapter you referred to – is there something in there which actually says alcohol increases bruising?

ME: It is the absence in that book, M’Lud, and in other books I have consulted, of anything saying alcohol causes increased bruising. It is the absence of those facts.

JUDGE: Because, if this was a sustainable proposition, you would expect to find it in that book, at that chapter?

ME: I would indeed, M’Lud.

That didn’t really stop the defence. The QC made his false point in a variety of ways, once, twice, three times more, that alcohol increases capillary blood flow and so bruising must be more likely.

A whole week after I took the witness stand, I was allowed to go. What a relief.

This case illustrates that there are facts – and there are the conclusions that can be drawn from them. In the adversarial cauldron of that courtroom, truth had turned into an individual, nuanced, malleable commodity, and that is why as an expert witness I was pressured to interpret facts in ways I found uncomfortable. Advocacy – the art of a lawyer making his case – need have no conscience and any Bar school would agree that some good cases are lost by poor advocacy and that some poor cases are won by good advocacy. Overall, the balance of justice relies on a concept that has served our society well for centuries: that twelve people drawn randomly and with no special training can listen to and form a judgement based on all the evidence they hear.

In this case, the jury found the defendant guilty of murder and he went to jail. I wonder if he had as many sleepless nights as I did. But at least it was over.

Except it wasn’t. After his client had spent a couple of years in jail, the barrister sought leave to appeal against the conviction because he had new evidence. The new evidence was that I had failed to produce any textbook in court which would contradict the QC’s theory that alcohol intake was responsible for the deceased’s bruising after he fell downstairs. And he listed a number of other ways in which I had allegedly been incompetent.

Now I certainly began to wonder who was being tried: me or the convicted murderer. But I did have time to muster some support. A very senior haematologist read the trial transcript and wrote a report, which concluded: ‘Alcohol-induced skin capillary flow would have played at most a trivial role in the skin haemorrhage (bruising). This spectacular red herring was pressed hard by the defence in the name of common sense but the image conjured up, of vessels bloated with blood, is misleading.’

We spent quite a lot of time hanging around the Court of Appeal before the defence’s case was heard. Then it was all over in an instant. The spurious ‘new evidence’ had been seen by their lordships for what it was and leave to appeal was not granted.

I admire the persistence of that QC in fighting for his client, a very disadvantaged young man. If I were ever accused of murder, then I would want him defending me. As an expert witness in his firing line, however, I felt he had shown a remarkable ability to ride roughshod over medical facts which did not favour his case.

Since then, if I am in court and the going gets tough, my coping mechanism is Alexander Pope. The lines my father wrote so painstakingly for me in that dictionary all those years ago instructed me to speak diffidently even when sure I am right, to readily admit the possibility that I may be wrong, to examine my errors and admit to them, to teach or correct others with generous regard for their feelings, never to agree for politeness’ sake with concepts I know are wrong and to accept correction when it is appropriate. Despite the aggression and single-mindedness our adversarial system fosters, and its frequent disregard for the truth, I try to hold to Pope’s principles.