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Who killed Jill Dando?

April 2019

Did Barry George kill Jill Dando? The idea might seem outrageous, since Mr George was acquitted of the crime and it is almost universally accepted that the murder remains unsolved. If you Google anything about the case you might assume that expert and public opinion is settled: that a man with mental health problems was made a scapegoat on the flimsiest of evidence, and only through the persistence of decent-minded campaigners was a great miscarriage of justice finally overturned. But the question is more reasonable than some suppose, as indeed the High Court has acknowledged: “There was indeed a case upon which a reasonable jury properly directed could have convicted the claimant of murder.” And the fact that Mr George was released from prison in 2008, seven years into his life sentence, was almost certainly due to a simple error of logic which points to a systemic failure in English justice.

The murder of one of Britain’s best-loved broadcasters in April 1999 was much more than a personal tragedy and a trauma for her family, friends and colleagues. Because of her celebrity status it was bound to cause a furore, especially since one of her roles was alongside me in fronting the police appeal series Crimewatch, then one of the highest-rated factual TV shows. The obvious inference was that the killer must have come from the underworld, and conspiracy theories dominated the news for weeks (as assumed in The Mirror’s headline). The attack was said to be sophisticated and meticulously planned, presumably the work of a hired assassin, or a professional gangster with a grudge.

When more than a year later police arrested Barry George, a local man who had epilepsy and a low IQ, many assumed the cops had lost the plot and simply gone out to find a fall guy. Even when an Old Bailey jury convicted Mr George, rumours swirled that this was a grotesque miscarriage of justice. His flamboyant defence QC, Michael Mansfield, proposed that the real killer was a special agent from Serbia sent in revenge for NATO bombing aimed at halting ethnic cleansing. When, eight years later, the case was sent for trial again, the only forensic evidence was discounted, and Barry George was finally acquitted.

Little wonder that many accounts on social media and even mainstream documentaries play up the widely-held view that the police failed utterly, and that George was no more than a sacrificial lamb.

But the evidence suggests a very different story.

The failure of the detectives was not that they found a patsy to take the blame when their inquiry had run into the sand. It was that they failed to heed warnings about Barry George which should have been flagged up from the start.

Indeed, when the facts are set out in a logical sequence, not as a narrative for the prosecution or defence, anyone who is dispassionate would recognise that, whether or not Barry George was the killer, he was nonetheless subject to an uncanny number of coincidences – many of them striking.

The following is uncontroversial:

  • The murder scene was comprehensively compromised by paramedics in their concern to save Jill Dando.
  • Thereafter there was little forensic evidence other than a casing from the bullet, and, later, the bullet itself and trace residue on Jill’s clothing and in her hair.
  • There were witnesses who had seen a lone man waiting, had heard a scream and had seen the lone man walking hurriedly away. There could be little doubt that, whoever he was, he was the culprit.
  • There was no obvious motive.
  • The inquiry was almost immediately overwhelmed by information, much of it seemingly of little or no evidential value but all of which – some 7,000 lines of inquiry – had to be evaluated.

Accordingly, the investigation began with an open mind about whether the killer was a hired assassin, part of a criminal gang, a lone criminal with a grudge, a jilted lover or someone with a mental disorder. At least that was the theory. The senior investigating officer, DCI Hamish Campbell, insisted this was a “360 degree investigation”. However, as he and his colleagues will now concede, they were under intense pressure from the media, and from top brass in the Met, to prioritise potential criminal connections. Every appeal Jill had conducted for Crimewatch was investigated. Extensive contacts were made with criminal contacts. These all drew a blank.

When other conspiracy theories surfaced these also sucked up thousands of hours of detective work. One of the most risible, yet one that came to have such prominence, was the idea of a Serb assassin. The story might not seem improbable the way it has so often been told: that a NATO missile attack on a Serb TV station, causing 16 fatalities, led to reprisals. But it requires that the Serbs were easily distracted from the immediacy of their life and death conflict in the Balkans, that they blamed Britain not the US, that they ignored their own failings (in fact their director of the station was later sentenced to 10 years in prison for failing to evacuate the building), that they had the resources to move with remarkable speed (the TV station bombing happened 48 hours before Jill’s murder 1,300 miles away), that they would never claim responsibility for a remarkably successful tit for tat, and that even after the war was over, western intelligence could find no documents or plausible informants to support the claim. More significantly, though, is the origin of the story. Jill’s agent had been asked by the police if anyone might have had a grudge against her, to which the answer was firmly no. But she did recall a letter criticising an appeal Jill had voiced about the Balkans. Its tone was injured but contained no element of threat, But her boss told the press, and the story catapulted from an unremarkable private letter to an international conspiracy.

The murder team spent months on it, but they and the intelligence services turned up nothing.

Finally, some 10 months into the inquiry, DCI Campbell took stock and went back to review all other possibilities.

There had always been indications that Jill’s killing was not professional at all but bore the hallmarks of an amateur. Of course it is possible that a real pro might lay a false trail, pretending to be slipshod and incompetent, but it would have been exceptionally risky.

Again, the following is uncontroversial:

  • No getaway vehicle, and it seems no getaway plan – almost unprecedented for a contract killing.
  • The wrong address, so one where an attacker would have to wait conspicuously for ages (she lived with her fiancé, rarely went to her own house and only decided to go there at the last minute because of a phone call with her agent while she was driving not far away).
  • No backup personnel who could have tailed Jill (we know that from a thorough check on CCTV images).
  • A risky location for a murder: the man who had been seen hurrying away had to walk down Gowan Avenue, a long straight street with few turn-offs where a would-be assailant could be tracked by neighbours or passers-by for at least 40 seconds – a long time for a professional, or any killer who had given any thought to how he would escape.
  • A perilous and unreliable weapon. The gun was not a real one but a re-activated or re-engineered one like a starting pistol – prone to jamming, misfiring or even backfiring. (Neither the Metropolitan Police nor the FBI could find a precedent in a professional assassination, so this would have been unique.)
  • The bullet was re-filled or at any rate hand crimped, increasing all the above risks and improbabilities.
  • Jill had her key in the lock ready to enter, yet the murderer did not push her inside and shut the door to muffle the sound but shot her outside in public where the attack could be witnessed, the assailant seen holding a gun, and the body quickly found.
  • The killer physically held the weapon in contact with his victim, suggestive of a crime of passion but breaking all the rules of an intelligent or trained assassin. Direct contact is always a forensic risk, and as soon as he pulled the trigger he would have been sprayed with biological material as well as gunshot residue.

The forensic psychologist who analysed the murder quickly concluded that any two or three of these features would suggest the killer was not just an amateur, but was taking alarming risks, and that taken together the clues were conclusive. He formally advised that the murderer would be a classic loner with a severe personality disorder.

To his surprise, the investigating team ignored his professional guidance.

Probability supported his view. In recent history (with one notable exception in 1981) no English judge has been assassinated in reprisal for an arrest or conviction. Nor are revenge attacks a feature of life for prosecution lawyers, detectives or arresting officers. It is simply not part of the British underworld tradition. It is extremely rare even in the US where gangsterism and murders are so much more commonplace. It would be very far-fetched indeed for a criminal fraternity to take it out on a peripheral player such as a TV presenter.

Then there was the question of motive. Once a criminal underworld attack had been discounted (statistical improbability, no whispers after a year despite intensive contacts), other theories like a Serb attack ruled out (practical improbability, no supporting evidence or even hints after international intelligence trawls), and no sign of a fall-out with friends, relatives or former lovers, there was no obvious reason for Jill’s murder, especially for a risky killing in the street.

Which left the most plausible explanation. Those unused to forensic psychology often talk about ‘motiveless crimes’, because there is seemingly no rational purpose for someone to act in that way. Yet thousands of these apparently senseless crimes are committed by people who have a very clear internal logic. These include most of the most notorious killers including Peter Sutcliffe, Ronnie Kray and Charles Bronson. In fact Britain’s prisons are crowded with people who are mentally ill. Broadmoor and Rampton are full of them. But that apart, thousands more crimes are committed by people who are not mentally ill so much as suffering from a personality disorder.

Personality disorders result in cognitive impairment, obsessions and narcissism, mostly resulting from genetic or physical damage, such as frontal lobe pathology, but sometimes from severe abuse. These disorders are not curable and so, until recently, even violent offenders were sent to prisons rather that to secure hospitals. Psychiatrists concede they can do nothing for them.

Mark Chapman, who killed John Lennon, suffered a form of personality disorder, and it’s not hard to see similarities in the way Jill was ambushed. Interestingly Chapman modelled his life on a hero of his (in his case, Holden Caulfield, a figure from The Catcher in the Rye) rather as Barry George had modelled himself on famous people, most recently a figure from the rock band Queen, which is why he had adopted the name Bulsara.

What are the chances of Jill being know to such a personality disordered person? The answer is almost 100%. As Jill’s co-presenter, I wrote to DCI Campbell at the start of the investigation, pointing out that in Jill’s case – as with any public person – one needs to consider motives in a very different light from private individuals because celebrities are known to almost everyone. She was routinely on TV, in people’s homes, in their sitting rooms and in their bedrooms.

Thus, albeit ten months too late, personality disorder became a prime line of inquiry

In February 2000, going back to review evidence from the start, it emerged that one individual had been identified several times as a person of interest but, because he was a Walter Mitty character and used different names, the police system had failed to link them.

It turned out that:

  • He had been seen in the road four hours before Jill’s murder.
  • He had been identified as having been by two separate witnesses near the killing in an agitated state soon after the murder.
  • The witnesses, including a mental health worker, were so concerned about him that in the days after Jill’s murder they had rung the incident room repeatedly.
  • He had returned to both witnesses the following day seeking to persuade them he had been there at different times and in different clothes.
  • He had a history of violence against women, including formal warnings, convictions for sexual assault and a prison term for attempted rape.

Further inquiries revealed that:

  • When under surveillance he routinely stalked women.
  • He had once been found in the grounds of Kensington Palace with a balaclava, a knife and a rope – but was never charged because he was thought to have mental problems.
  • Itsuko Toide, briefly his wife in a marriage of convenience, was so frightened of him that she reported his violence to the police and fled back to Japan. (She later told me she had no doubt he was Jill’s killer).
  • Despite denying he had an interest in Jill Dando or the BBC, undeveloped film recovered from his apartment showed he took photos of women from his TV, and he kept copies of the BBC’s in-house magazine.
  • Although he denied he had ever owned or held a gun, a reel of undeveloped film was processed and revealed him posing with a pistol.
  • The pistol he was holding was of the same type that killed Jill.

…and so it went on.

Some argue that, never mind the layer upon layer of coincidences, Barry George simply could not have carried out a murder because he was too slow-witted. Tests showed he had an IQ of 75. That means low average intellectual capability; or to put it another way, roughly 1:12 of the population has his IQ or lower. It is no more unusual than an IQ of 125. Moreover, his record showed he was perfectly capable of functioning and planning:

  • He had once posed as a police officer, having acquired a genuine warrant card. He was convicted of the offence.
  • He persuaded a newspaper that he was the British Karate champion until another paper exposed the fraud.
  • He had posed as a businessman, having created a fictional company called Xanadu Constructional and Mechanical Engineers.
  • He pretended to be a stuntman and was filmed at a stadium performing a daring motorbike stunt, injuring himself in the process.

Then there was the matter of stalking women, sometimes into their front gardens and up to their front doors, a pattern of behaviour which was as deliberate as it was distinctive. And if he could plan an attack in the grounds of Kensington Palace when the Princess of Wales lived there, why not on Jill Dando in an ordinary suburban street?

Others of George’s supporters say his protestation of innocence has been so consistent and sustained that he simply has to be believed. In fact his testimony was riddled with inconsistencies and lies – including that he’d never heard of Jill Dando. But in any case there is good reason to discount his apparent sincerity. People with Mr George’s personality disorders (in his case bolstered by Asperger’s) can live out their fantasies and are so persuasive that they can often win over others. They lie consistently and convincingly.

In fact Barry George had been hoodwinking people for decades, frequently adopting the names of rock musicians, and carrying through with his conceits for months on end.

One of George’s critics, Stephanie Hall, has been through this before. She cites the classic case of Simon Hall, convicted of a murder in 2001 but who so plausibly maintained his innocence that many people, including ‘innocence’ activists and human rights lawyers, campaigned for years to have him freed. Stephanie shared Simon’s surname because she’d known him at work, became one of his keenest supporters, and actually married him in prison. Five years later he confessed to her, revealing details including his motive for the crime, and soon after committed suicide. Stephanie has subsequently researched many similar cases, and has been vociferous about the similarities between Simon Hall and Barry George.

She was not the only such campaigner to feel betrayed. Most miscarriage of justice activists quietly bury embarrassing cases like that of Simon Hall, but one of Britain’s most prominent champions against wrongful convictions (and a one-time broadcasting colleague of mine), concedes it is all too easy to be duped. David Jessel, a former presenter of campaigning TV shows like Rough Justice and Trial and Error, and a long-time member of the Criminal Cases Review Commission concedes: “You always have to reserve a part of your brain for the possibility that the person you campaign for just might be guilty.”

One of the foremost profilers in the US, Pat Brown, says too many coincidences end up with Barry George to be ignored, and is contemptuous of armchair theorists who think he must have been either too dim or too nice to kill. Such people, she says, plainly know little about personality disorders, or indeed criminal profiling.

The fundamental particle

In short, lots of so-called ‘circumstantial’ arrows pointed compellingly in Mr George’s direction – and there’s nothing wrong with circumstantial evidence, especially when so much of it leads to the same conclusion; through criminal history it has been the bedrock on which almost all verdicts have been reached.

But in addition , a particle of firearms residue was found in the pocket of a coat Barry George had been wearing on the day. What’s more, its analysis revealed a mix of barium, aluminium and lead which matched the type of gunpowder recovered from Jill’s hair and clothing. This was the hard forensic evidence the detectives craved, or so it seemed, and it may even have finally convinced the CPS to advise police to charge Mr George with murder. But it turned out to be a poisoned chalice. We cannot know if it played any part in the jury’s decision to convict (English justice, though supposedly open, has absolute secrecy at its heart), but we know for sure that this tiny scrap of residue – just one small part of the case against Mr George and effectively a postscript which was found only after he had been arrested and charged – was what led to his subsequent acquittal.

No one argues about the fundamental science. Such particles are formed under extreme temperature and pressure and are sprayed forwards and backwards when someone fires a gun. The only uncertainty was how this one got into Barry George’s pocket. Supporters claim it led to an appalling miscarriage of justice in which an obviously innocent man was sent to prison. But what’s in question here is not so much a question of physics as of probability, and – overlooked by almost everyone involved in the media extravaganza over Jill Dando’s murder – the logic of probability points in the opposite direction. The implications are so important for English law in general that the whole trail of events deserves setting out in some detail, not least because, unless anyone can find an error in what follows, it means Mr George should not have been released from prison, and the guilty verdict should still stand.

At his trial in 2001 the forensic evidence was offered as tentative but nonetheless of evidential value. Years later, while Barry George was in prison and supporters were protesting his innocence, the Forensic Science Service had second thoughts. That prompted a review by the Criminal Cases Review Commission, a statutory body set up to investigate miscarriages of justice. (Having said that, its interpretation of miscarriages of justice is very much one-sided. It has no powers to intervene if Barry George was wrongly acquitted.) That in turn led to an appeal – in fact his second, his first having been dismissed in 2002. And at the Royal Courts of Justice in London his lawyers successfully argued the forensic evidence should be challenged, leading to a retrial. When this second trial took place, more than seven years after the murder, Mr George’s barrister, William Clegg, persuaded the judge to rule the forensics inadmissible. So the second jury was never told about the firearms discharge residue; and given that nine years on from the murder most witness memories had faded, a new verdict of not guilty was almost inevitable.

Most people have such faith in English justice that they assume the courts must have got this right. Those who always insisted Barry George was innocent felt vindicated. Most of the media, which had previously catalogued his misogyny and violence, turned on a sixpence to deplore the miscarriage of justice that had led to an innocent man’s imprisonment (and two newspapers which persisted in making allegations against him were successfully pursued for libel). The internet was abuzz with stories of his ‘wrongful conviction’, dozens of books and articles have been published to this effect, and supposedly ‘definitive’ documentaries have left viewers in little doubt that the real killer has never been caught.

But was the Appeal Court right? Was it fair that the forensic evidence was ruled inadmissible and that the second jury was kept in the dark? If not, Barry George should not have been released.

Indeed, statisticians who later reviewed the transcripts think the evidence should not have been discounted, and that, on the contrary, it provides ‘weak’ but ‘probative’ support for Barry George’s guilt. This is not mere conjecture, and nor are its implications trifling: it is literally a textbook case of how courts can get things wrong. Two statisticians who worked through the judgment (Professors Norman Fenton and Martin Neil) together with a lawyer, a psychologist and a behavioural scientist (Daniel Berger, David Lagnado and Anne Hsu) expressed serious concerns about ‘oversimplification’, ‘ill-defined assumptions’, and ‘erroneous reasoning’, and warned that the problems go much deeper than the intuitive logic that expert witnesses had proposed and that the lawyers had all swallowed.

So let’s wind back and examine why the particle was thought to be evidential in the first place, why it was then discredited, and why probability experts think it was wrong to be disallowed.

The Forensic Science Service had always conceded that the speck of gunpowder was by no means conclusive proof. It was so tiny – the smallest amount detectable – that all the scientists agreed it was most unlikely to have been planted. Inserting a single microscopic fragment into a fold of clothing would be difficult and, even if experts had gone to the trouble of framing someone, they would have scattered far more convincing evidence than just one infinitesimal speck. Even so, it could have found its way into Barry George’s pocket by accident, perhaps when the coat was handled by police. So which was mostly likely: accidental contamination, or a direct indication of contact with a firearm? At the time of the first trial in 2001 the boffins thought the latter was more likely. But five years later the Forensic Science Service was going through a period of reassessment and worried there was ‘not sufficient data on the environmental occurrence of FDR (firearms discharge residue) to give a safe interpretation of finding a single particle’. As a consequence, they adopted ‘a cautious approach’. In fact it was so cautious that by the time of the appeal they had concluded that a single speck had no practical value at all. They guessed there might be a 1% chance of finding the particle whether or not Barry George handled the gun, and accordingly the evidence was ‘neutral’. To quote their expert witness Robin Keeley:

‘It was no more likely that the single particle of FDR came from a gun fired at the time of Miss Dando’s murder than that it came from some other source.’

Strong stuff, especially as Mr Keeley is known as the founding father of firearms chemistry. Yet when one of the world’s greatest authorities on probability reviewed the Appeal Court transcript he found it, literally, incredible:

‘I cannot believe Mr Keeley said anything so blatantly incorrect.’

So let’s examine why.

On the face of things, calling the firearms residue ‘neutral’ suggests it added nothing to the question of whether Barry George was guilty or not since the chance of leaving residue would be the same in either case. The layman’s implication is that if you turn out all your pockets there might be burned gunpowder in at least one article of clothing – especially if you have been in contact with the police. There is no evidence whatever to support such an assertion. And although the Mr Keeley and his colleagues sounded convincing to the court, their reasoning seems to have gone awry.

The problem is that while they knew a lot about chemical analysis, it appears they were not experts in statistics, and nor were the judges and lawyers. Probability – the likelihood of anything happening – is far less obvious than it seems. (Indeed, the whole gaming industry might be in trouble if we all understood the counterintuitive implications of probability.)

Courts should have learned this from the injustice done to Sally Clark in 1999. She had been sentenced to life for murdering her two sons who died in infancy a year apart. An eminent paediatrician testified that the chance of two babies from the same family suffering sudden infant cot syndrome was 1 in 73 million. But his calculation was based on a false assumption. As the Royal Statistical Society pointed out, there was no reason to suppose the two cot deaths were independent events. There might have been a genetic weakness or some other overlapping cause.

In the Barry George appeal, the firearms experts made a similar mistake. They fell for what statisticians call the zero-sum fallacy: they posed a false dichotomy. They believed that if the particle got into the coat innocuously it would imply that Mr George had nothing to do with the crime; whereas if the particle came from his gun it would indicate his guilt. Since they estimated there was a one in a hundred chance a fragment would be left if he had fired the gun, and a one in a hundred chance if he hadn’t fired the gun, those probabilities were equal.

In fact, of course, those possibilities are not mutually exclusive. True, the fleck could have got there by accident if he was innocent. Alternatively, if he were guilty it could have come from his own gun. But there was at least one more possibility. If chance contamination can happen to an innocent man it can happen to a guilty one too. In other words, it could have got there by accident whether or not Barry George was Jill Dando’s killer.

The seemingly trivial distinction is important because it changes radically the evidential value of the particle. A simple illustration is to consider what happens if you make a bet. An either-or hypothesis is like a single toss of a coin. It either falls heads or tails. But the odds change when you have three possibilities, not two. It gives you another toss of the coin. Consider the chance of flipping two heads in a row: it’s 1 in 4. This is known as the prior probability and the odds are stacked against you. But if you get a head with the first spin the chance of getting two heads now rises to 1:2. This is known as the posterior probability. Now you are just as likely to win as lose. Even amateur gamblers understand this and would raise the stakes after the first roll.

Thomas Bayes, the father of probability calculations, understood this three and a half centuries before the Appeal Court overlooked it, and Bayes’ Theorem provides an exact mathematical way to calculate the posterior probability. In the Barry George case, rather than trying to flip coins, we need to know how many people touch guns.

After all, if everyone in Britain handled guns, the average likelihood – or prior probability – that Barry George handled a gun would be 100%. Everyone else would have been equally likely to have harboured similar residue, so finding a particle would tell you nothing about whether he might have been Jill’s killer. Yet if very few people have access to firearms then finding the speck would be very significant. Consider checking 100 pockets and finding the only tell-tale speck in Barry George’s one.

Similarly, if most people have a particle of burned gunpowder in their pocket, the chance of recovering one from Mr George’s pocket was overwhelming. But if only one person in ten thousand had residue in their pocket then the chance of finding one would be miniscule. In that case a finding would be significant. It is only a combination of factors that can indicate whether the residue had evidential value.

Prof Norman Fenton and a team of statisticians from Queen Mary University and University College London modelled a range of scenarios on the Barry George case so they could calculate probabilities depending on how these circumstances vary. Whatever reasonable scenario they fed into the program, it tended to indicate that finding the particle increased the chance that Barry George was the shooter.

So what is a reasonable scenario? What is the probability that the trace of residue got there without him firing the gun, perhaps as his defence counsel proposed, that it was contamination caused when the coat was removed from its evidence bag to be photographed by the police? To assess the chance of environmental pollution we need to know how many guns there are in London which could have led to haphazard transfer. More particularly we need to calculate what proportion of these particles could have found their way into police stations in the capital.

First let’s look at the number of guns. No one knows how many people in London have direct contact with firearms, but we can make an educated guess. In doing so we shall always err on the side of Barry George’s defence. Most legal guns in Britain are held by hunters and shooters in the countryside. Nonetheless some 4,600 citizens hold handgun and rifle licences issued by the Metropolitan Police. Shotguns are counted separately and leave chemically different residues, but they too could issue particles like that found on Mr George. There are roughly 26,000 licences for these. That means altogether some 40,000 Londoners have access to licensed weapons which could deposit Barry George-type traces. Then there are the police themselves: around 2,500 armed officers in London, along with staff who might handle the guns. And obviously the great majority of the UK’s armed service personnel will come into contact with live weapons, with up to five thousand of them deployed in London for big ceremonial occasions.

The big unknown is illegal guns, including those brought in by visitors. Estimates vary wildly, although one diligent researcher has amassed enough indirect evidence to suggest there are vastly more unlawful guns in circulation than one might suppose from the 400 or so seizures each years recorded by the Metropolitan Police. On the other hand, he dismisses the idea of vast caches of illegal firearms as ‘wild projections built from flimsy starting points’. He also reminds us that many illicit guns are souvenir military weapons which have been unserviceable for years. Let us exclude them (since unused guns they won’t be spreading discharge residue) and make a conservative guess that at very most there are around 60,000 illegal guns in circulation in the capital at any one time, each capable of leaving a gunpowder trace. I stress 60,000 is probably an overestimate – one illicit and operable gun for every hundred adult Londoners at the time of the murder – but an overestimate favours Mr George’s defence. Bear in mind that the more people have guns the more likely it is that a random person on whom a particle is found will be a gun owner, so the less probative the particle found in Barry George’s coat.

On this tally, at the time of Jill’s murder there might conceivably have been as many as 110,000 people in London with access to the types of gun which dispel the sort of debris found on Mr George’s coat. That’s one adult in every 55.

Next we need to know what proportion of residue particles find their way onto people’s clothing, and how the proportion varies (if at all) between shooters and non-shooters. Again we have no precise data, and findings appear to vary between forensic science labs. Even so we can make a reasonable supposition. A survey involving swab tests from 1,300 people and tested across 32 European laboratories found that the mean probability of finding at least one particle was 0.4% for the general population – a figure in line with previous studies – but it was 42.3% for subjects who had been in possession of a firearm. In other words, residue was 100 times more likely to be found on a shooter than on a non-shooter. These were tests on people’s hands, not clothing, but it is not unreasonable to suppose the general finding may hold true for both.

Of course we must allow for the original defence case: the possibility of contamination during seizure of the coat or at police stations. There are two circumstances in which that would be likely. The first is if incriminating evidence was planted by corrupt officers, although as we have seen that was dismissed by scientists as both improbable and impractical with a single microscopic particle. The second is if the coat was handled by an officer who had just fired a gun, where the possibility of transfer is high. But the coat was collected and preserved by scene of crime officers wearing protective suits and gloves, and although it was taken out of its sterile bag to be photographed, it is unlikely the photographer had recently handled or discharged a weapon.

So what about the risk if there was no corruption and no immediately preceding gunfire either from an arresting officer or one of the exhibits team? No experiments have been conducted in the UK to test for the unintended transfer of single particles to clothes seized by police. But a good place to look for scattered firearms discharge residue is in the United States where there are more guns than people, where one in five adults carries a gun routinely, and where 1,000 suspects a year are shot dead by the police. (Even so, contrary to popular assumption, only a quarter of police officers will ever get to fire their guns while out on duty through their entire careers.) Several experiments have shown that the potential exists for the transfer from police or police property, but scientists concluded that in practice it is ‘not an overwhelming, or major concern’. For example, in Pittsburgh, with a homicide rate by firearms more than forty times higher than that of London, researchers conducted a detailed examination of tables and chairs from interview rooms, and from cells at four police stations, and were surprised at how little transfer actually took place, concluding: the risk ‘does appear to be minor at least in this police district.’ Similar results emerge from other countries where murder rates are lower but where police are routinely armed, such as Australia, or from Switzerland where scientists checked seats on police vehicles for the transfer potential of firearms particles. Moreover, where particles have been discovered they were on open surfaces; they had not found their way inside a pocket.

Obviously these ‘minor’ risks are even more minor in London where fewer than one in eight of sworn officers is armed, and where laws on gun ownership are among the strictest in the world. Indeed, even the lawyer who represented Mr George at the appeal – and who is still convinced of his client’s innocence – conceded in his memoirs (Under the Wig, chapter 21) that ‘the prosecution were able to prove there couldn’t have been any such cross-contamination’.

Nonetheless, a credible risk exists for unintended transfer and, in the absence of precise experiments of particle transmission between Metropolitan Police, it would be safer to overstate the possibility than rule it out altogether. So where should we drop the most credible pin of conjecture for a single discharge particle? We could start with caution, assuming that one in every hundred items of evidence seized by police bears undiscovered traces of firearms residue, and that one in every ten of these results in cross-contamination. (This is theoretically far-fetched, and it would render the collection of forensic exhibits almost futile, since if cross-contamination was so common with firearm residue it would also presumably be so for many other physical contaminants; and if exhibits really were so hopelessly exposed it would mean that any forensic connection with any crime would always be deniable.) Nevertheless, again bending over to be fair to Barry George, let us accept this speculation and propose that one item in every thousand gets contaminated with at least one firearm discharge particle.

That would mean we need to build in a 0.1% probability of accidental police contamination.

Set against that is the fact that the particle was in the right-hand pocket. This is of marginal significance since roughly nine out of every ten people are right-handed. Nonetheless, since a right-handed gunman would normally conceal a weapon in his right-hand pocket, it is perhaps worth noting in passing in the case of Barry George.

The photo recovered by police in which he is holding a gun shows that he professionally cradled the weapon with his left hand, but his right hand is clamped round the pistol grip and his right forefinger is on the trigger. Even so, again let’s favour the defence and set this to one side.

If we put all of this together, and if all these estimates are approximately right – that is assuming one in every 55 citizens might have occasional access to a gun, that people who handle guns are 100 times more likely to have firearms residue than those who don’t, and allowing for a one in 1,000 chance of cross-contamination after the coat was seized by the police – then, according to Bayes theorem, the evidence of Barry George handling a gun is far from neutral. In fact the probability rises from close to zero to 71%. That means there is almost three times more likelihood that Barry George handled a gun than any other explanation, which in turn means that the evidence was correct at the first trial and should not have been dismissed by the Court of Appeal. Instead of the clue being ignored it should have been considered as yet another brick in the wall of evidence against Barry George.

Perhaps what is so extraordinary about all this – the forensic scientists’ testimony to the appeal court, as well as the appeal court’s finding, and the second trial judge’s acquiescence in excluding the forensic evidence – is that they fell into a trap that is well-known in criminal trials. Court rules say explicitly, ‘it is vital to ensure that an expert does not give evidence in relation to matters outside of their expertise.’ Yet, as no less authority than a Supreme Court judge has warned, when it comes to statistical probability the rules are frequently ignored. She notes that despite the fact that, ‘humans are particularly fallible at making use of statistics to take rational decisions’, in many cases, ‘the courts take a rather impressionistic approach to what strikes the judge as helpful with little express analysis of what the data.’

Academics point out that the very adversarial nature of criminal trials tends to encourage such impressionistic thinking. As psychologist Prof David Lagnado points out – using the Barry George appeal as an example of lawyers coming to the wrong conclusion – criminal courts have only a binary option, guilty or not guilty, which promotes binary reasoning rather than logical deduction.

Statisticians themselves have been doing what they can to redress the balance, and the Royal Society has published an accessible primer to educate the courts. But as academics point out, the very adversarial nature of criminal trials tends to encourage ‘impressionistic’ thinking. As psychologist Prof David Lagnado points out – using the Barry George appeal as a classic illustration of lawyers coming to the wrong conclusion – criminal courts have only a binary option.

The doyenne of statisticians, the world’s first professor of public understanding of risk, David Spiegelhalter, has been so exercised about this case and others like it that he lectures judges and has written for the Supreme Court on how easy it is for lawyers to be fooled.

So why is the great body of well-researched and scientifically backed evidence against Barry George so widely dismissed and, by some, so vehemently denounced? Why is the narrative that Barry George is innocent so frequently talked up by commentators and why are documentary-makers scared of questioning whether the appeal system managed to put this case wrong instead of right? This bias is by no means unique to Jill Dando’s murder. And perhaps it’s unsurprising, especially among liberals in academe and media who like to be on the side of an underdog, a role that Barry George can fill with ease. It is regarded as campaigning journalism if the media claim a convicted person might be innocent; while investigators who propose a miscarriage of justice in the other direction are likely to have their programmes damned as trial by television. They are also almost certain to be sued. Indeed, anyone who seeks to change the public view of Mr George should know that for all his supposed lack of mental capacity he has proved energetically litigious.

So even I will never say Barry George is guilty (although I cannot undo the fact that I did precisely that on the steps of the Old Bailey when he was first sent down). I have long come to accept that the legend of his innocence is now almost as unassailable in the public view as it is beyond further reconsideration in criminal law.

Nonetheless, an acquittal in English law is not the same as being ‘innocent’. A verdict of not guilty simply means that the jury could not agree that the burden of proof had been met. Moreover, after his acquittal Mr George was twice denied compensation on grounds that, to quote Lord Justice Beatson and Mr Justice Irwin judgment in the High Court, “There was indeed a case upon which a reasonable jury properly directed could have convicted the claimant of murder.”

So while Barry George is unequivocally not guilty in law, it would be a falsehood to suggest there was never real evidence against him. It would be an insult to the police inquiry, to the CPS, to the Treasury Solicitor who prosecuted the case, to the first jury which convicted him – and to the multitude of coincidences that made him such a compelling suspect.


I confess I was always of the opinion that Jill was killed by someone much like Barry George, and I went on Newsnight the evening of of her death to say so. By the time of her murder I had accumulated fifteen years experience of working with police and had come to be wary of investigators’ theories. But I was also a psychologist by background, had visited prisons, and was acutely aware of the link between crime problems with mental health. It was not easy to go on presenting Crimewatch without Jill, yet even more frustrating to be appealing for information on her murder when I thought the detectives were looking doggedly in the wrong direction. Hamish Campbell, the SIO, must have found it equally frustrating that I was always downplaying the Met’s theories about criminal gangs.

Having said that I have always had less reason to be emotionally biased about this case than some have supposed. Nor do I harbour ill-feelings towards Barry George. He is plainly psychologically damaged. Indeed, I am greatly impressed by the loyalty of his sister Michelle Diskin who campaigned so hard to clear his name. I am profoundly proud of Jill’s legacy, the world-class Jill Dando Institute which pioneered the new discipline of Crime Science at UCL and finds new ways of helping police and preventing crime. It has spawned similar work in universities around the globe. And I am pleased to support the Jill Dando News initiative which encourages children to consider following Jill into journalism. But while Jill was a marvellous, hugely likeable and generously professional colleague of mine we were never especially close friends. My interest is less about this single case of murder, awful and horribly close to home as it was, than about how a narrative can take hold which swamps so much of the evidence.


Fake News

April 2019

A confection by the Mail on Sunday

Celebrity and crime make good copy for the tabloids. So my book on Crime: how to solve it and why so much of what we’re told is wrong was an attractive proposition for the Mail on Sunday. They bought serialisation rights, and they got their money’s worth. The response from readers was overwhelmingly positive. But when the paper asked for more weeks for its exclusive, and was turned down, it decided to make mischief. And sex was the most salacious target.

Much to the embarrassment of the journalist who had been faithfully editing extracts from book, his colleagues were tasked with keeping the Mail’s exclusive in the headlines by concocting a story of their own. It turned into what one publisher described as one of the greatest ever betrayals of serialisation rights – and it worked. Their headlines and their copy did all they could to make it sound as though I was a ignorant misogynist – and provoked a firestorm.

They took research I reported accurately:

Half of women who had penetrative sex unwillingly do not think they were raped and this proportion rises strongly when the assault involves a boyfriend, or if the woman is drunk or high on drugs: they led him on, they went too far, it wasn’t forcible, they didn’t make themselves clear …For them rape isn’t always rape.

But the headlines and the opening text suggested that I personally believed rape isn’t always rape. They added colour with other highly selective quotes – and found suitable women to lambast me. I was abroad at the time and so in no great position to respond, but in any case it burned so quickly almost anything I said would pour petrol on the flames. In the week that followed my reputation plunged from ‘national treasure’ to ‘most hated man in Britain’.

With the internet ablaze with scorn and angry denunciations I trended to the top in UK social media.Predictably I was vilified by attention-seeking politicians like Diane Abbott but also by supposed liberals like Brian Paddick. And to my dismay other newspapers laid in with almost equally hysterical attacks.

A Sun columnist sneeredit was no good using the ‘taken out of context card: why do middle-aged men, who will never be raped, even go there?’The Sunday Times sent a Glenda-Slagg columnist to do a unadulterated hatchet job on me, several BBC local radio stations joined in (some were sympathetic, one was downright rude) and, perhaps most hypocritical of all, The Guardian jumped onto the bandwagon, whipping up a frenzy of disdain (led, incidentally, by Martin Robbins, a contributor who calls himself a science writer and claims to revile the Mail but who gleefully embraced their cherry-picked quotes). Only The Daily Telegraph conceded the story was concocted.

I freely confess that, having never been subject to such a wall of malice and derision, I handled it ineptly.

Thankfully a lot of newspaper readers saw through the smoke for themselves, posting supportive comments: ‘The headline does the article a massive disservice’;‘questions like this need to be asked’; ‘typical, a journalist criticises media coverage of crime, and the media turn on him…’.

And when I was able to speak to my critics, even the fiercest were much more measured, and even kind. One rape victim who wrote to me in a fury was entirely reasonable when I wrote back, apologising for her language and saying she had only gone on what she read in someone’s blog. As we will come to in a moment, my fiercest critic who was headlined in the Mail on Sunday and who lambasted me in newspapers and on the BBC, completely changed her mind once she’d actually read the book.

Above all, I was hugely heartened to get support from the women who matter most in this debate: rape survivors. Some said even they were frightened to tell the truth because accounts from victims tend to be reviled unless they conform to a politically-correct view. For example, this email came from a woman who deeply resents ‘the madness’ and ‘the rants’ that drown out voices like her own:

‘I was raped twice in my teens. Neither were traumatic experiences. I didn’t feel great about myself afterwards but I put myself in situations where there would certainly have been confusion/ambiguity on the man’s part in my desires. It was to do with my generally low self-esteem at the time, but that was my problem, and not theirs’

You might say, so what? A response like this is typical of what women are expected to put up with. Alternatively, hers might be written off as a minority view; one can always find people to endorse almost any proposition. But that’s the point! Victims refuse to submit to a stereotype. We might all yearn to address the lack of self-esteem which led her to think like this, but voices like hers must not be ignored.

Another woman, who was forcibly raped by a man she knew well, emailed:

‘It sits there in my memory, and rears up and bites me when I least expect it… but the act did not blight my life, leave me traumatised [or] afraid of men. Nick is right. Tell him so please, and long may he continue to say what he thinks. I have rarely admired a journalist more.’

And another wrote:

‘In company with most people I’m getting irate about this story. I’m a victim myself and I certainly see the variations between what I experienced and what other victims in other situations might experience. It is a great shame we can’t talk seriously about the very real problem of rape because any comment that isn’t baying for the blood of all offenders everywhere is screamed down. The vitriol makes sensible discussion impossible.’

But most importantly, the woman whose front-page attacks on me in the Mail on Sunday gave the paper’s story credence, changed her mind.

Jo Wood is someone I admired: a former magistrate and science researcher who runs Merseyside’s Rape & Sexual Abuse (RASA) Centre and was awarded an MBE for her work with rape victims. In 2011 she was named Cheshire Woman of the Year.

Soon after the row exploded she downloaded my bookon Kindle, and read what I actually said. To my great relief, and to her great credit, she wrote to me to tell me she’d been set up by the Mail on Sunday:

‘The book is an extensive study on crime and the causes of crime and has very few references to rape. The excerpts published in the Mail on Sunday have in the main been taken out of context and quoted accordingly.

All those responses made by us and others have been made on the basis of “sound bite” quotes which when taken in context can actually read quite differently.’

She went through each of the phrases for which I was derided, and, having seen the context in which they actually appear in the book, she found no fault with any one of them. For example:

  • ‘“Who is to blame for rape?”In the book this is followed by ‘It is plainly objectionable to reproach a victim for her own misfortune, so why do so many women do it’
  • ‘“Women who are flirtatious are at least partly responsible if they are raped, and a quarter feel the same way about rape victims who act provocatively” This is a section quoting the facts discovered by Amnesty International and is not a personal opinion.’
  • ‘The quote re: “we have come to acknowledge it is foolish to leave laptops on the back seats of cars…” is followed by, “No amount of incitement can ever excuse rape.” This particular section is actually making the case for rape to be looked at differently and thought about differently “it is inane to confuse explanation with justification.”’
  • ‘The rape is rape section – gradations of rape – on reading the whole chapter it is apparent that the point is that victims themselves do not always see what happened to them as rape because rape is most commonly presented as strangers down dark alleys.’

And so it goes on. She concluded:

‘Maybe they should think about who is fast becoming the victim here – and without even holding a trial. Having read the full version I am satisfied that there is no intention to criticise victims of rape and that the comments made, when read in context actually strengthen the arguments for sexual violence crimes to be treated with the empathy and respect that victims demand.’

Jo’s conclusion was about as direct a riposte as anyone could give to the howls of outrage on social media and from so many newspapers :

‘I would seriously suggest anyone who still supports the furore that has broken out – takes time out to READ THE BOOK.’

There was a curious postscript to this.

I asked Geordie Greig, then the Mail on Sunday’s editor, for a right of reply and, perhaps sensing that they had overstepped the mark, he agreed. But there were conditions. He wanted Jo Wood’s repudiation to go at the end, not highlighted at the start. Reluctantly I agreed. And true to his word he ran my response the following week….

It was set at the bottom right-hand side of a double-page spread with another concocted story attacking me again, this time citing another broadcaster: ‘Fern Britton hits back at Crimewatch founder’s book’.Fern had not read the book and, so far as I know, has no criticisms of my views.

Geordie knows how to sell newspapers, and was subsequently promoted to editor of the daily paper as well as the Sunday edition. But not, I think, for his integrity – or, come to that, his attitudes to women speaking out.

Nick Ross would watch child pornography

You might have thought it could hardly get worse. It did.

I was invited to the Hay Literary Festival – one of the most important cultural gatherings in the UK – and drew a large and friendly crowd. But I hadn’t learned my lesson.

One of the fundamental lessons of the book is that it is trite to think that crime is caused by criminals, and no more useful than to say that driving is caused by motorists. A country’s experience of crime is not dictated by the birth-rate of evil people, so much as the extent to which fewer or more of us get tempted to do wrong. Take a way the shop counter, you get shoplifting. Use chip and PIN, and card crime declines.

As one of several illustrations of how decent folk can find themselves sucked into being bad,I quoted research which showed how, in certain circumstances, ordinary people can be persuaded to look at pornography, even though they had not been seeking it and felt no interest in it. They did so out of simple human inquisitiveness, like turning to glimpse an accident on the opposite side of a motorway. I told the audience that on the basis of such research I doubted they were immune to this phenomenon, nor I, even if we tripped across child pornography.

OK, hands up to this one. For a journalist like me with thirty years experience it was naïve. If the Mail on Sunday hadn’t just whipped up a firestorm about me it might have been fine. But the news media can’t resist a shocking headline, especially when offered on a plate. The Telegraph promptly reported, ‘Nick Ross would watch child pornography’, and the rest of the press leapt joyfully in, including supposedly thoughtful papers like the Independent.

Some of it’s still there, and will be there for ever, on the Internet. I have joined the swelling ranks of women as well as men, including others far more distinguished, who have been pilloried for saying what, with time to reflect and see the evidence, most people would agree with.

Grenfell anger and Call for a National Fire Safety Agency

December 2018

This year’s Fire Sector Summit was held at Aviva Headquarters London on October II. where keynote addresses were delivered by Fire Sector Federation President Brian Robinson and National Fire Chiefs Council Chair Roy Wilsher. A rousing address was also delivered at the pre-event reception at Mansion House by broadcast journalist Nick Ross.

A Time to Be Angry

Speaking at the Fire Protection Association’s Fire Sector Summit reception at Mansion House, Nick Ross said he hoped to revive the passions the audience felt when the news of Grenfell was still fresh. “Because this is a time to be angry, and anger is sometimes the right response. This is also a time for honest self-reflection in this Industry – because so many people, including those in this sector, did not do what they should. But it’s also a time to celebrate – because our of this appalling tragedy, as with the Great Fire of London, there are lessons to be learned and good sense is at last emerging. Why should we be angry? You could argue Grenfell was an accident. But it wasn’t. It was a consequence. A consequence of decisions made and not made in officialdom.

“For heaven’s sake lets acknowledge that In a civilised country, after centuries of learning how to prevent fires and stop them in their tracks. Grenfell was a testament to bad government, to had policy, to an abdication of responsibility. First, let’s dispose of some myths about Grenfell: that we don’t know what happened and must await the official inquiries; that it was the council’s fault: that the cladding was only there to gentrify the area; that the problem is only with high-rise buildings. None of those is true.”

Mr Ross listed the factors that have become apparent – from the cause of fire in a Hotpoint fridge freezer to the performance of Reynobond cladding – and regulations, “specifically Approved Document B, Fire Safety, are difficult to follow and haven’t been updated for well over a decade.”

“We know successive ministers have been resistant to updating them. We know successive ministers have refused to require sprinklers – or even to encourage their use, let alone campaign in favour of them. I could name them all. Again let’s recall that their indifference was despite the recommendations of the Lakanal House Coroner. We know that the Grenfell scheme must have been officially approved by a building control process. In short, we know a lot.”

Mr Ross emphasised that it was not Just the council to blame and that the real culprits “are higher up the food chain.”

“For heaven’s sake, how could successive governments and successive ministers be so complacent? Sometimes politicians and their advisers get fixated on tabloid terms like ‘red tape’. Yes. by all means cut unnecessary regulation. But first check that it really is unnecessary.

Good governance can never be reflexive even if politics so often is. The people who took the decision not to have routine reviews of building regulations bear responsibility for the Grenfell deaths (and many others tool). I wonder if they still think that their slashing of red tape was really worth it Buildings regulations, like sprinklers. are not unnecessary burdens: they’re life-savers.”

Mr Ross also said it was time to reflect on Fire Service performance as well, singling out Chief Fire and Rescue Advisor Peter Holland and London Fire Brigade Commissioner Deny Cotton for praise whilst condemning the National Fire Chiefs Council for lack of action and a Service that “seems to have got more political in recent years” and “more and more obsequious.” He said the Service needs to “boldly go where politicians don’t want to go, and confront what politicians would prefer to shy away from.”

Mr Ross concluded by issuing a rallying cry for sprinklers. “Grenfell has roused us from our complacency: he asserted. ‘England has woken us. Now we must catch up with Wales. And we must turn on anger at Grenfell to positive effect.”

For Nick Ross’ speech in full click here.

Submission to Clare Marx Review on gross negligent manslaughter

May 2018

Dear Dame Clare,

Gross negligence manslaughter review

I am delighted that you have agreed to lead the inquiry into gross negligence manslaughter (GNM) and medical professionals. As you have said, there is a critical need to think through the implications and uncharted consequences.

I am a journalist and broadcaster, and am president of HealthWatch which promotes evidence-based medicine, a board member of Imperial College NHS Trust as well as of Sense About Science and the UK Stem Cell Foundation, a member of the RCP committee on ethical issues in medicine, of the RCS research steering group and the National Guardians’ advisory group, and an honorary fellow of the Royal College of Physicians. In addition, as an honorary fellow and visiting professor at UCL I am chairman of the advisory board of the Jill Dando Institute of Crime Science, and have experience of the impact of criminal law on crime rates.

Fundamentally, my recommendation boil down to the following:

DO recognise you have a once in a generation opportunity to change the law on GNM and the GMC itself.

DO NOT be put off considering law reform. GNM is misconceived. It should be necessary to prove mens rea, or intent to risk a patient’s death. Given that doctors treat people who are ill and routinely die, patient safety requires vigilance and candour. But accountability should mean learning from mistakes, not retribution. There is clear evidence that a punitive response in medicine does harm but no evidence that it improves patient safety.

DO acknowledge that the GMC processes are unnecessarily legalistic, archaically adversarial, unpardonably slow and cause considerable grief to doctors including the great majority who are eventually cleared.

I append a slightly more comprehensive summary at the end of my letter, but please bear with the narrative since, as your immediate reaction will have already testified, I am asking you to stretch your terms of reference. I therefore need to justify this approach.

In fact, despite your terms of reference – to improve how existing law, procedures and processes are applied (my italics) – Charlie Massey tells me there is nothing to prevent you questioning the law itself or from challenging fundamentals. It is essential the public is not denied a higher perspective which examines trade-offs and tests ethical assumptions that go to the heart of patient safety, and, given the tight constraints imposed on the Williams Review, I do hope that at very least you will look out over the walls before framing your recommendations to consider whether legislation should be changed.

No one is asking for doctors, or anyone else, to be above the law, but it is not seditious or subversive to question whether laws are right or not. Yesterday’s norms are superseded (with some, like the right to own slaves or criminalising homosexuality, becoming a cause of regret or revulsion) and so will many of today’s. It would reflect badly on society’s response to the Bawa-Garba crisis if all those charged to consider the matter dodged the issue of legislative reform. As Terence Stephenson has said, ‘it is everyone’s right to make representations’, and he has himself discussed with government the need for ‘a safe space in healthcare and a form of legal privilege akin to the airline industry’. Thus, I hope you and your colleagues will have the confidence to go to the heart of the matter.

I fear that if you do not explore this in the round you will have no options but to try patching a system which has already been patched many times. GNM is being applied more frequently, and the threat of prosecutions hangs like a shadow over the medical professions, leading in the cause of justice, to injustice, risk and harm.

Accordingly, I ask you to bear with me while I explain why, after much reflection, I am increasingly uneasy about society’s instinct to criminalise honest mistakes.

Why we should review the law

Gross negligence manslaughter distorts criminal justice priorities to the benefit of dangerous and recidivist criminals; it is illogical and unfair; it is subject to caprice; there is no evidence it reduces medical error; it is not necessary to ensure justice; it diverts NHS resources from patient care; it undermines a critical healthcare policy of promoting candour; and it almost certainly results in many invisible injuries and death because of risky and invasive overtreatment.

Distorting criminal justice

At first blush it might seem odd that a broadcaster best known for Crimewatch which sought to catch villains, should be opposed in principle to criminal prosecutions, but there is synergy. For a start, prosecuting people who have no intention to do harm diverts precious police and criminal justice resources from investigating those who do intend harm. This is no trivial matter, and nor should it be dismissed as not relevant to your inquiry. Bringing cases like Bawa-Garba’s to a level needed to satisfy the Crown Prosecution Service, and then through the courts, is resource intensive, and abstract skills and funds from a dwindling supply. Justice has a price. The Ministry of Justice faces unparalleled budget cuts, with equally unprecedented falls of almost 20 per cent in police numbers. Tens of thousands of serious offences are not even investigated.

You may even be able to quantify this trade-off by comparing the thousands of hours spent in criminal justice on a case like Bawa-Garba’s to that devoted, say, to recorded offences of violence against the person where 88% of cases go undetected[i].

The reality is that, in order to prosecute doctors who try to help, we allow to escape people who intend to injure. Some of their victims will require treatment from the NHS.

Illogical, unfair and capricious

What is more, GNM is in principle unjust. It is based on outcomes rather than actions, which means that the same action may be no offence or a very serious offence. Not to put too fine a point on it, it is arbitrary. By the same token, prosecuting doctors like Bawa-Garba dilutes the essence of real crime by which I mean badness as defined by mens rea, a wilful breach or an intention to do wrong.

This distinction is not arcane for an inquiry like yours into medical error and patient safety. Without the need to demonstrate evil intent, doctors are subject to fashion more than reason. As a notable law lord, Lord Atkin, observed some eighty years ago, in some periods, ‘expressions will be found which indicate that to cause death by any lack of due care will amount to manslaughter; but as manners softened and the law became more humane a narrower criterion appeared.’[ii] This was particularly so when manslaughter was a capital offence and, ‘men shrank from attaching the serious consequences of a conviction for felony to results produced by mere inadvertence.’

The GMC worries that we live in a retributive age and that it has no option but to keep in step with public opinion. True, opinion polls consistently suggest half the adult population is in favour of hanging and three-quarters believe we are soft on crime, but it was ever thus. In any case these surveys solicit answers offered in the abstract. Other evidence suggests, equally consistently, that citizens are far less punitive when presented with the facts about individual cases. The more we know, the less we rely on preconceptions and the more we tend to be nuanced. Just as clinicians expect informed consent from patients, citizens also deserve to be informed. Good public policy is not based on intuitive or presumed positions.

Whatever the reason, be it public pressure or systemic momentum, the use of GNM is on an upward trajectory. So far as I can establish there have been more prosecutions for medical manslaughter in the past 14 years than there were in the preceding 120, leaving doctors, as one lawyer observed, ‘in an almost uniquely vulnerable position regarding prosecution for making a mistake’[iii].

Not justified by evidence

Whatever is propelling these prosecutions, it is certainly not robust evidence that they do good. Evidence of efficacy is the first point where criminal manslaughter collides directly with the clinical culture. Doctors who are encouraged to practice evidence-based medicine might be surprised that the criminal justice system adduces no evidence at all that GNM as applied to the medical profession plays a role in reducing harm to patients. If GNM was proposed to a peer-reviewed journal as a broad-based evidence-based treatment it would be subject to ridicule.

One theoretical justification for punishing negligence is that, where individuals owe a duty of care to others, the threat of prison acts as a deterrent to making a mistake. But in many circumstances this is logically absurd since deterrence can only work where forethought is applied. In other words, there is a big difference between how manslaughter affects the way people plan activities and the way it affects them as they carry out their day to day routine.

Thus, the threat of prosecution may discourage a strategy of cutting corners to save money; it could influence a decision to snort cocaine or drink vodka before operating machinery; or it might persuade employers to tighten safety routines. But it cannot oblige someone not to make a mistake once committed to a course of action; it cannot help a driver or a pilot deal with information overload; it cannot prevent a busy doctor from overlooking something – for the simple reason that in the midst of routine activity people do not, and cannot, make a risk-reward calculation. For sanctions to work, any behaviours they seek to influence must be planned and wilful.

As it happens we have several real-world experiments which allows us to compare fault and no-fault approaches and to test whether fear of legal sanction drives desirable behaviours, or whether liberating people from jeopardy promotes irresponsibility. We can even measure outcomes in a clinical environment. The traditional UK response to medical culpability in civil proceedings is to go to court, where the critical issue is not the outcome of the error but whether or not the defendant was liable in law. This was considered unfair in New Zealand since if no fault is proven then the plaintiff is left to bear the burden. Understandably, without recourse to the courts, complainants in New Zealand have since used other channels to voice dissatisfaction. But New Zealand has seen no rise in underlying medical mishaps. This needs to be said with caution since adverse events are not reliably recorded anywhere (as patient safety concerns and shortcomings at Mid Staffs Foundation Trust so visibly exposed in the UK). But no one has detected, or even suggested, there has been an increase in clinical irresponsibility in NZ because doctors are no longer taken to court for damages[iv].

True, we are talking about civil, not criminal, law but there is no reason to believe the effects of criminal penalties would be much different from those of civil ones. The onus must be on those who claim otherwise to produce evidence to the contrary.

Obviously, this finding does not extend to cases where people plan their actions, as in a motorist arranging to travel to a party where she expects to drink alcohol, a construction company planning to appoint subcontractors, or a clinician preparing for a surgical procedure. Here fear of the law – whether prosecution or litigation – can certainly change behaviour, as random-breathalyser laws have shown. But, even then, deterrence rarely works as one might assume, which is why prisons are bulging and millions shrug off the death penalty and still smoke cigarettes.

Not necessary to ensure justice

It is also sometimes suggested that, freed of criminal sanctions for making serious errors, doctors and nurses would be privileged and above the law. My answer to that they should not need to be a special case. All manslaughter charges, including death by careless or dangerous driving, should be restricted to cases where there is a priori evidence of wilful misbehaviour. This does not affect the so-called eggshell principle, which describes the rule by which ‘you take your victims as you find them’: when you deliberately harm someone who dies as a result or is seriously injured, you can seek no mitigation if your target was especially vulnerable. But, critically, the rule should require wilful and not just negligent behaviour.

It is also suggested that the needs of justice must trump other considerations. I hope you will join me in regarding that as facile. Every action has a trade-off. Life is a transaction between different ambitions and needs. Even if GNM always resulted in justice – and as I have said I believe it frequently leads to injustice – the important question is: when applied to medicine does it on balance to more good than harm?

Diverts NHS resources

GNM wastes NHS resources in a way that no thoughtful priority-setting would consider sensible. Healthcare systems throughout the world are struggling with cost inflation, novel treatment options, mounting drug resistance, rising expectations, ageing populations, increasing rates of comorbidity and difficulties of recruiting and retaining staff. In Britain waiting times have ballooned, the physical condition of many clinics and hospitals is in embarrassingly poor because of capital budget constraints, running costs are severely curbed with control totals imposed from above, and managers and clinical directors are struggling to make savings wherever they can. When medical error is identified they need to respond quickly and thoroughly to put things right where possible, to learn from the mistake and to implement safeguards so that in future behaviours default to safe. Having valuable and competent clinicians subjected to criminal investigations, suspended and removed from service is not conducive to raising standards of patient care.

Undermines candour

Yet there is plainly a further, much more worrying, effect. GNM is inimical to candour. It is widely recognised that failure is the best way to learn and, as I hardly need point out to you, lack of frankness is especially damaging in a clinical setting where lives are at risk. Good clinical governance requires an open learning culture which designs out risk and discourages defensive medicine.

The medical profession has known for decades that a blame-free culture is the way to establish patient safety. The National Confidential Enquiry into Perioperative Deaths (NCEPOD) was established thirty years ago to find out what went wrong when surgery resulted in fatalities, and, as its name implies, it was a specifically anonymised investigation. It developed into the National Confidential Enquiry into Patient Outcome and Death which was regarded as so important to patient safety that it became a condition of registration with the GMC that doctors must participate in the work of confidential enquiries. Liberating doctors from fear of castigation saves patients’ lives. The Francis and Berwick Reports are testament to this, and to the fact that it is uncontroversial among medical safety professionals. Patients deserve an atmosphere which promotes transparency and honesty.

The GMC is equally aware of this. It has publicly acknowledged that concerns about GNM ‘could make doctors less candid about errors,’ and Professor Terence Stephenson has made the point himself that their Bawa-Garba referral has ‘set us back’ in this regard. There are no data to substantiate the chilling effects of GNM, but the logic is compelling: criminalise clinicians for making well-intentioned mistakes and doctors will be less likely to admit to their own mistakes or to speak out about the mistakes of others.

I do not seek to suggest that GNM is the only, or even principal, cause of distorted values in the health service. Sir Robert Francis correctly identified a systemic problem of hierarchies and closing ranks: ‘too often those who raise concerns about things that go wrong become unpopular with colleagues’. In response, the thrust of a great deal of recent healthcare policy has been to encourage disclosure. These include the Nolan Principles established in 1995, the (ineffectual) Public Interest Disclosure Act of 1998, and perhaps most notably the so-called Freedom to Speak Up (FTSU) guardians, whose very title tacitly acknowledges that healthworkers do not habitually feel the freedom to speak up. I can testify as someone who supervises guardians in an acute hospital trust that even staff who do disclose are often fearful, and NHS staff surveys across the country suggest such anxieties are commonplace. As you will be aware, NHS Improvement (NHSI) has been sufficiently worried about this as to launch a formal Whistleblowers’ Support Scheme.

Candour, whistleblowing, self-reflection, learning and improvement all require a culture change which goes far beyond the legislative framework. There is also the burden of civil litigation, especially in obstetrics. But GNM is the most visible symbol of scapegoating. I submit that it is simply not credible that piling on layers of different initiatives will encourage people to speak up as they should. Patient safety deserves root and branch reform.

Indeed, not only should doctors and nurses be liberated from the threat of criminal sanctions for making a mistake; they should be discouraged from giving evidence in criminal courts against colleagues who have made mistakes. It is all very well for the medical profession to criticise parliament and the courts for pillorying doctors; but no prosecution for GNM against a surgeon or physician can succeed without another doctor denouncing the defendant. The adversarial process enjoyed by British courts is in many ways antagonistic to the scientific method, swayed by theatricality, selective in what evidence is allowable, after which elements are then cherrypicked and presented with deliberate bias, leading to evaluation by inexpert assessors forced into a binary conclusion. Despite new safeguards about expert witnesses, many are still chosen to support the prosecution or defence case, are often ‘bought’ inasmuch as court fees provide a considerable source of income, and can sound authoritative even if they are out of touch. Regrettably, it is not unknown for a specialist consultant with a relatively easy life, perhaps enjoying private practice or effectively retired, to testify against a colleague who has much less specialist experience and/or faces more intense and complex pressures.

Results in injury and death

Even if fear of prosecution drove doctors to be cautious it can put lives at risk. There is anecdotal evidence that normally diligent doctors are tempted to ‘overtreat’ and there are many academic attempts to quantify the effects of defensive medicine. Your review might benefit from a review of the literature. Excessive intervention distorts rational allocation of time and resources which, in a capped system like the NHS, robs other patients of timely care. But in many cases defensive medicine is also directly against the patient’s interests. Unnecessary investigations such as x-rays and other scans, invasive tests or unwarranted drugs and procedures given ‘just in case’ probably cause hundreds of deaths and thousands of injuries each year, although these harms are hard to identify, hard to count and often far removed in time from the doctor who ordered the investigation or the treatment. This largely invisible toll, resulting from doctors’ fear of getting things wrong, will vastly outnumber the patients like Jack Adcock who suffer from underdiagnosis and undertreatment of the sort that leads to criminal prosecution. Yet the two issues are deeply interrelated.

The once-in-a-generation opportunity for change

Even should you conclude that your terms of reference prevent you from proposing legislative changes, I hope at least you will conclude that the GMC has a duty to urge debate by parliament and the public and to point out that established laws and processes have unintended consequences. These are matters over which the GMC stands responsible and, where they are reluctant to be controversial, they need you to help give them resolve.

I have mentioned that Terence Stephenson has acknowledged it is everyone’s right to fight for a change in the law and that he himself has proposed a form of legal privilege for doctors. Yet he feels conflicted. He has also told me, ‘this is a matter for government and parliament, not for a professional regulator. The GMC cannot be above the law of the land.’

Setting aside the curious notion that it is ‘above the law’ to seek law reform, there is nothing in the Medical Act or any other protocol that obliges silent acquiescence to ageing legislation. In fact, I can think of no one better placed to propose reform than a professional regulator. Simply by standing against increasing use of GNM it could do much to reassure doctors, encourage more openness and thus shelter healthcare from a law which is intrinsically detrimental to patient safety.

The Bawa-Garba case has provided a once-in-a-generation chance to reconsider a law which has grown like Topsy, distorts healthcare and diminishes patient safety. By all means mitigate the worst effects of GNM on medicine, but since the law itself has malevolent effects the sooner it is reformed the fairer, better and safer the world will be.


Mitigating the ill-effects of GNM

This brings us safely back well within the terms of your inquiry, with the task of working out how to make the most of a bad law and injurious procedures: if the GMC chooses not to challenge the status quo, how, at very least, can it protect patients from GNM’s most damaging effects?

Does the GMC have to erase doctors convicted of GNM?

First, there is the question of whether, whatever the law, the GMC has a duty to strive officiously to enforce the verdict of a crown court as it did with Bawa-Garba. Charlie Massey has said that he acted on legal advice and that not to appeal the case would be to have gone ‘behind the verdict of the jury’. I am not a lawyer but I urge you to consult others who are. There is no general legal impediment to going behind a verdict; if there was it would be contempt to question convictions and we would not allow appeals. It is true that a junior court cannot set aside the verdict of a higher court, but a Medical Practitioners’ Tribunal does not seek to set aside a verdict. It is not a judge of criminal culpability but of fitness to practice, an appraisal it is specifically appointed to conduct and one for which it is better equipped to judge than a crown court jury.

Nor do I believe it is incumbent on the GMC to seek erasure of a doctor following a jury verdict. Having studied Section 35c of the Medical Act 1983 I believe the GMC was wrongly advised.

If I am wrong, and the legal opinion was right, you might conclude that Mr Massey’s impulse should have been to seek a second opinion, or quietly ignore the matter – or at very least refer the matter to Council. After all, to follow such advice resulted in the persecution of a doctor when, as he has conceded, her competence was not at issue. You may think it worth questioning why he did not challenge the legal advice, complain that it amounted to double-jeopardy, and resist its implications for medical candour and patient safety.

Terence Stephenson says unambiguously, ‘I wholeheartedly agree that protecting and promoting patient safety must be the first priority of the GMC’. Yet you might wonder whether with Bawa-Garba, the instinct was really to protect the public or to protect the GMC.

Should the GMC be in the business of image management?

Second, I propose that the GMC should commit to a robust review of its own statutory purpose set out 35 years ago. Essentially it has four overlapping obligations: to set standards, to oversee training, to regulate which doctors are competent to practice, and to sustain the public’s confidence in doctors. I submit that it does not do all of these well. You are not concerned with the first two duties, but I recommend you consider whether a body that determines a doctor’s moral and technical competence should also be responsible for a profession’s public relations.

The Bawa-Garba case is again a good example, but the principle is perhaps best illustrated by that of Chizoro Edohasim who has fallen foul of a similar law to GNM. Dr Edohasim was involved in a car crash which killed his own daughter, injured another and crippled himself. The vehicle’s telematics showed that on approaching traffic lights he applied the accelerator instead of the brake, achieving 100% acceleration up to the point of impact with a wall. He was convicted of causing death by dangerous driving and sentenced to four years imprisonment, reduced on appeal to three. It is not your concern that this legal sanction has bewildered and ravaged his family, nor that it will do no good, nor even that the prison authorities deny him adequate medical treatment. What should be your concern is that the GMC has warned him that, in view of his conviction, they are considering erasing him from the register.

Charlie Massey tells me such actions are necessary in order to fulfil Council’s duty to sustain public confidence in doctors. Regardless of the fact that the crash was plainly not deliberate, and that Dr Edohasim has already suffered terribly, or even that taking away his livelihood is disproportionate, will harm his family, deprive the NHS and place additional burdens on public finance, I submit that the only question the GMC should be concerned with is whether or not he is competent to work safely and effectively as a physician. Its overriding concern should be the safety of the public. It should be for others, perhaps the BMA or the royal colleges, to safeguard the profession’s reputation.

The GMC still smarts from the memory of 2004 when there was public disquiet around several doctors who had harmed patients, where the system had failed and where, in Terence Stephenson’s own words, ‘the perception was that the GMC was a doctors’ club looking after its own’. I suspect this is why it is so anxious about public perception.

But elision of the two ambitions – regulating for competence and defending the profession – has unfortunate consequences. It bars competent, and even exceptional, doctors from practice (destroying careers and creating much grief in the process) and it confuses protecting patients with protecting the profession. It is, in short, conflicted. In Bawa-Garba’s case she had a creditable record and in the two years between Jack Adcock’s death and her trial she was regarded as a perfectly good doctor. As I say, Charlie Massey accepts that he had no reason to doubt her general competence, and Terence Stephenson acknowledges that her errors must have been unusual: ‘a conviction for manslaughter by reason of gross negligence is not about everyday mistakes…. The failings must be truly exceptionally bad’. As it happens, I do not accept this. Even Professor Stephenson concedes he has, ‘certainly made mistakes as a doctor’, and many doctors say they have had similar lapses, although thankfully without such disastrous repercussions. One consulted told me he thinks he might have killed a patient, and since it was the outcome, not the error, which did for Bawa-Garba, several have said, ‘There but for the grace of God go I’.

But even if we take at face value that Bawa-Garba’s failings were truly, incomparably sloppy, no one has suggested that her blunders on this occasion were anything other than an extraordinary exception. It follows that she was erased even though this was an unprecedented and singular event. This blurring of boundaries between personal proficiency and being a professional liability is not just intellectually flabby but ethically distressing too. It means the GMC is sacrificing capable doctors on the altar of untested assumptions about public opinion, or on Council’s fretful concern about challenging the legal status quo.

The dual responsibility also muddies the waters. Professor Stephenson is emphatic that, ‘retribution has no place in our work.’ Yet if it is accepted that Bawa-Garba was a generally competent physician with whom patients would be safe (and perhaps no other doctor of her rank would now be more attuned to sepsis), her removal from the register can only be retributive. Her erasure may not have felt retributive to Charlie Massey and Terence Stephenson, but they were the instrument of retribution. They pulled the trigger out of fears that the public would be vengeful. We all need to face up to this reality: the fact that she took a bullet for the profession shows retribution does have a place in their work. It is forced upon them by their role in image management.

Is the GMC inconsistent or even racist?

Third, I urge you to challenge the GMC not just on principle but on its practice. Mr Massey has claimed that not to have de-listed Bawa-Garba would have set a precedent, and Terence Stephenson insists that in every case of GNM since 2004 the GMC has sought erasure. I suggest you examine its record. In a letter to Terence Stephenson of 14 February I cited two cases where physicians had prison sentences, one for manslaughter and one for negligence, neither of whom was struck off and at least one of whom, having served his time behind bars, returned to useful and subsequently unblemished service[v]. I have not yet heard from the GMC that my information is incorrect. Since then I have been told of doctors who have survived erasure despite clearly been cheats or even criminally dishonest, along with some convicted of sex offences (including, I believe, some still on the sex offender register). These make a tragic counterpoint to others like Hadiza Bawa-Garba who have been struck off for one-off clinical errors.

You will be aware of the racial implications in all this. The GMC acknowledges the persistent overrepresentation of complaints against ethnic minority doctors – some 10.2% of BME doctors were referred between 2010 and 2016 compared to 8.8% of white doctors. Clearly the GMC cannot be held responsible for those who refer complaints to them. Perhaps doctors trained overseas, with different cultural heritage and with English as a second language, are less likely than British-trained doctors to meet the professional expectations of British patients. In any case, fewer than 3 per cent of referrals are passed on to a tribunal. But many doctors I have spoken to fear there is systematic bias and, as you know, local Medical Committees (branches of the British Medical Association) have been so concerned as to have declared no confidence in the GMC.

The question of bias is the subject of a separate inquiry, but you will want to be sure that the GMC has a robust process for showing that it is sensitive to racial stereotyping, that its judgments are consistent and that its outcomes are clearly fair. If nothing else, the tension over this underlines that confidence in the GMC is shaky.

Should the GMC put doctors on trial?

Fourth, although not directly related to GNM, you may wish to consider the adversarial nature of the GMC’s procedures. As I have told Professor Sir Norman Williams, the GMC seems not to understand how much it is reviled. It inspires fear in those who have come up against it, has long and drawn out processes which can leave doctors in limbo for months or even years (sometimes with devastating effects on their families, their careers and their health), it expects defendants to pay their own expenses and travel as instructed, and makes no amends if a case is dropped or fails.

I hope you will take evidence by those who say their lives were ruined by the GMC even though complaints against them were rejected. According to the GMC’s 2016 report, of 9,140 referrals only 245 were sent to a Medical Practitioners’ Tribunal (MPT), and only about 70 are erased in any year. Nonetheless all 9,140 defendants lived in fear for months or years, often with diminished opportunities in their careers. It is simply unacceptable that the process takes so long. The great majority of cases should be resolved within 28 days.

In order to achieve that, its procedures need to be transformed, be much less long-winded, less defined by lawyers, and be refined to focus on actual (rather than perceived) fitness to practice. It should privilege retraining and upskilling over sanctions. Again, these are all issues where the GMC should be more audacious and more willing to set out its stall for regulatory reform.

Is the GMC used to suppress whistleblowers?

Fifth, again not directly related to GNM, it may be useful to consider whether, and if so to what extent, fear of the GMC is used cynically to suppress openness in the NHS. The report by Sir Anthony Hooper QC three years ago, called On the handling by the GMC of cases involving whistleblowers, reported that, ‘employers are using the process of making a complaint to the GMC about a doctor’s fitness to practise as an act of retaliation against whistleblowers because he or she has raised concerns’. I do not believe the GMC is complicit in this. As I say, more than 97 per cent of complaints are rejected without going to an MPT. What is more, by no means all these referrals come from management. Nonetheless Sir Anthony concluded that, ‘the GMC unwittingly becomes the instrument of the employer in its campaign against the whistleblower’. He also reported that employers are refusing to revalidate doctors who try to speak out. I have been advised of two senior doctors who withdrew retracted statements of concern when they were told that they would not be revalidated unless they did so.

I accept there is a more general problem here. For example, there are stories of medical directors who make it clear that consultants who raise concerns will not get discretionary points or gain support for national awards. But I have no doubt that, unintentionally, the GMC has a role in subverting safety by making staff feel it is unsafe to raise concerns. Above all of this GNM now hangs like the sword of Damocles.

Is the GMC the best way to regulate?

Sixth, this is a golden opportunity to rethink medical regulation in the round. The GNM controversy has put the GMC in the spotlight and the government’s review, Promoting professionalism, reforming regulation, is still under way even though the period for consultation has closed. It is surely important for you to liaise with that review, to share information and ideas, and to question whether reform might be beneficial.


Final words

I have many links with medicine. But they are all voluntary. I am not medically qualified, and I do not speak for doctors. My prime concern is patients.

Nor do I lack empathy with victims like Mrs Adcock whose son, Jack, died because of failings by Dr Bawa-Garba among others. I have myself suffered a form of sepsis which, were it not for the remarkable perceptiveness of a GP, could have proved fatal. I have had a major operation which I am now told was ill-advised – and perhaps unnecessary – as a result of which I have suffered serious and potentially life-threatening events. I have a close relative whose medical treatment was so inept that he required corrective surgery and is still disfigured. I can see plainly why some people want those who make serious medical mistakes not just to be held accountable but to be chastised.

But while anger and grief are understandable they do not bestow special wisdom; indeed, it is rare that they can be assuaged by seeing someone punished. Many ill-treated patients, and many who’ve been bereaved, have found comfort in pushing for more transparency and systematic accountability rather than personal blame. You may wish to hear from Melissa Mead who spoke so movingly two years ago at the Conservative Party conference. Like Jack Adcock, her little boy William died from undiagnosed sepsis – in his case after what the Daily Mail headlined as, ‘a staggering 15 failures in his care’. But Mrs Mead pointed out that a retributive response to failure invites the very dangers some activists for retributory justice seek to avert.

Mistakes will happen. But victimhood does not justify vindictiveness. Even so-called ‘unforgivable’ failings are only unforgivable when we are unable to see ourselves in other people’s shoes. We, as patients, must expect clinicians to use their best endeavours, but the pact we make with doctors should be reciprocal: we should also empathise with them.

Perhaps it is because I have spent so many years in live broadcasting that I understand how easy it is to have a lapse in attention, to have failed to prepare for an interviewee’s obvious evasion, to have missed something that in hindsight was clearly important. But mistakes in journalism very rarely kill. Mistakes in medicine frequently do. Estimates vary but there are probably between 1,200 and ten times that number of avoidable deaths in England each year in hospitals alone, and perhaps 1.4 million adverse events in total[vi].

If nothing else I hope you conclude that systemic challenges need systemic responses; not vexatious and hugely distracting harassment of a very few generally competent doctors who made well-meaning mistakes and who are already tormented by misjudgements when they were trying to do good.


Senior GMC officials have assured me you have authority to look beyond existing law and examine unintended consequences of gross negligence manslaughter, something the Williams Review cannot. Only through understanding the illogicality and unfairness of GNM in general is it possible to see why workarounds can never improve patient safety to a desirable extent.

Even given existing law I question both the legal advice given to the GMC over the Bawa-Garba case and the GMC’s motives for so quickly and actively pursuing its implications.

I suggest such actions are inimical to a culture of candour and learning. Despite many attempts to make NHS staff feel at ease in speaking out, stubborn obstacles remain. While criminal prosecution of doctors for mistakes are relatively rare, the threat of criminal sanctions is the most visible sign of their vulnerability.

Just as bad as fear of speaking out is the risk of defensive medicine. If GNM has a deterrent effect it will mostly be harmful. The threat of criminalisation cannot change decisions made in the heat of the moment but it can influence actions that are planned. Unnecessary or avoidable tests and treatments kill and injure thousands of patients each year, and though the toll is visible only through epidemiology, every life lost or damaged in this way is just as valuable as that of patients like Jack Adcock.

I ask that you see the Bawa-Garba case and the effects of GNM on doctors as a once-in-a-generation opportunity to improve the GMC more generally. While my prime concern is patient safety, I urge you to examine the terrible toll exerted on doctors by the GMC’s painfully slow and legalistic processes which each year ensnare some 10,000 clinicians causing hundreds to have stalled careers despite almost all of them eventually being cleared. There is also prima facie evidence of inconsistency and racism. Whether or not this is central to your terms of reference you are uniquely well-placed to propose reforms.

Adversarial approaches in medicine should be comprehensively discouraged. This applies equally to doctors themselves, who should stop cashing in on court cases to give evidence against colleagues. Accountability should lead to improvements in patient safety not to punishment for honest mistakes, however ‘unforgivable’ genuine errors might seem.

Medicine is a powerful and therefore dangerous business. Just as doctors should be expected to empathise with patients, so patients should be expected to empathise with doctors.

I wish you well with your deliberations.

Nick Ross

[i] Crime outcomes in England and Wales, year to December 2017: data tables (Table 3.2)

[ii] [1937] AC 576, pp581-2.

[iii] Hannah Quirk, School of Law, University of Manchester, Crim. L.R. 2013, 11, 871-888



[vi] Dept of Health & Social Care, 14 December 2017, NHS becomes first healthcare system in the world to publish numbers of avoidable deaths (; Public Administration Select Committee report, 27 March 2015, Investigating clinical incidents in the NHS (ttps://

Britain votes to leave the EU

June 2016


Not since 1933 has a European democracy engaged in such self-indulgent and dangerous democratic vandalism.

This is an emotion-loaded moment and this is an emotionally-laden reaction. A more measured one will follow. Of course Brexit itself was driven by emotion, chiefly resentment, much more than it was inspired by hope or a vision for the future. The nation which was least shackled of all EU members convinced itself it was enslaved. The areas most dependent on EU handouts felt most ingratitude. Facts were trampled as though they had no more value than opinions.

But the market reaction speaks for itself, wiping 10% off people’s pensions and stripping the UK of its golden credit rating (and that alone will cost us far more than any savings from EU membership). We have betrayed our friends in Europe, we’re about to break up the United Kingdom and we will be lucky to win a single dispensation in our negotiations, all because the old and those who contribute least to our economy – including a majority of those who are a drain on it – betrayed the young and those who build our prosperity.


As Lord Ashcroft’s remarkable poll makes crystal clear, the retired and elderly, the fearful, mean-minded and unproductive have trumped the young, optimistic, open-minded and economically active. These are generalisations, of course, with many young and successful people expressing their dislike of immigration and many conservative country folk voting for Remain. But if anyone hoped the referendum would heal divisions it has aroused bitterness and created discord. Half the country has found itself on the wrong side of the referendum, and I guess that a good proportion of those who voted for Brexit now have regrets (or at any rate second thoughts).


Ironically the more prosperous and better educated are feather-bedded compared to the relatively disadvantaged. Those who found Brexit most appealing are the ones who will get most hurt.

The stock market has crashed, big businesses are reeling and foreign investors are frozen in their tracks, financial and manufacturing industries based here are already looking to relocate, and we will haemorrhage jobs as we are ejected from European institutions – including UK-centric institutions like the European Medicines Agency. And then there are all the unconsidered consequences such as a slump in tourism, one of our biggest exports, as we are expelled from the Europe-wide visa clearance scheme. The tumbling exchange rate will help exporters (so that’s why Dyson and Bamford wanted Brexit: to damage sterling) but from now on we have lost our seat at all the standard-setting institutions and Europe’s powerful bodies that make the rules for global trade. Worse still, hardly anyone in Whitehall has experience of negotiating bi-lateral trade treaties with other nations.


In any case – and this is no small matter – we have betrayed our partners, snubbed our closest allies, stimulated nationalists and far right extremists across the continent and done the work of Islamist fanatics by damaging the world’s economy and undermining Europe.

Here at home we will soon be plunged into constitutional crises. The SNP has already signalled a new call for breakaway, and heaven knows if the Brexit vote will reignite conflict in Northern Ireland. Across the kingdom people are more divided then before, not less, with many plunging into a state of disbelief and depression. I, for one, find myself feeling like a foreigner in my own country, bewildered at how the rural middle-classes could be so myopic, saddened at how working-class voters, once the model of progressiveness, could be drawn to the anti-immigrant rhetoric of UKIP. The very constituencies once thought Labour’s heartland, in the shipbuilding north-east and the coalmining valleys of Wales voted angrily with the toffs of Norfolk and the shires.


Perhaps we shouldn’t be surprised. We have seen the surge of right-wing and neo-fascist groups in France and even Germany and watched in amazement as the anti-intellectual demagoguery of Donald Trump propelled a loudmouth and inflammatory bigot towards the White House. Too many citizens feel powerless as the world changes around them in rising cadence. It is not that people don’t like change – far from it, we crave stimulation and dislike boredom – but when change happens we like to feel in control. We often don’t use our vote when we have it (for example, look at the elections for police and crime commissioners where almost none of us bothered) but even when we do few of us feel we have much influence. The constituencies for local councillors are now as big as they were 150 years ago for MPs. So never mind that the ‘unelected’ European Commission is said to be self-serving or out of control – it is appointed by elected government leaders and all its important decisions are subject to the European Parliament and to national vetoes – the sense of alienation transcends the technical realities.


Yet the return of sovereignty is a naïve illusion, a mirage in an increasingly interdependent and global world.

Worse, it is not as though the victors in this campaign have a clue about how to put globalisation back in its box. When the new leadership sweeps in it has no published plan and will have no answers to any of the problems it set out to solve, from immigration through fishing rights to the NHS, and it will face a battleground of crises of its own making.


We don’t have a parallel world so we cannot compare what actually happens with what would have happened, but we don’t need to be clairvoyants to recognise that our economy has taken a body blow and that the next few years will be bloody. Instead of increasing our authority and fighting our corner on assuming the Presidency of the European Council next year (due on July 1st) we will be pariahs.


However, we are where we are and we need to salvage what we can from the wreckage. One of the initiatives I’ve been funding is to promote evidence-based policy in government. We made progress under Cameron who personally indicated support and put me in touch with Cabinet Office people through whom we have some departments of State ready to sign up. We must fight to encourage the development of evidence-based public policy rather as doctors have increasingly embraced evidence-based medicine. It doesn’t inhibit politics, it doesn’t fight ideology; it simply asks that if civil servants (and by implication ministers) put up an idea, or quash one, they show their workings. We have a parallel movement in the US, led by Michael Bloomberg and I hope we will partner them here. We have just published a report [] by Sir Stephen Sedley, a former judge in the Court of Appeal, into the need for more rigour and transparency in government research.


If only an evidence basis had been the bedrock of the Brexit debate.

Yet the risk is that the new government will have new SPADS (‘special’ political advisors chosen because they are believers) and a new and more ideological outlook – one which thus far indicates it is more interested in bombast than evidence.

I can honestly say that I have never, not even when living in the turmoil of a quasi-civil war in Belfast, been so depressed about politics and human stupidity. Yes, the turmoil will in time die down. There will be a phoney war when it seems it might not be so bad after all. But history will regard June 2016 as an exercise in self-inflicted harm and the beginning of one of the most difficult periods of peacetime British history.

AirAsia QZ8501: how could it happen?

December 2015

AirAsia QZ8501: how could it happen?
4 January 2014
(see also Air France Flight 447: ‘Damn it, we’re going to crash’ )

Yet again a jetliner has crashed into the sea, this time with the loss of 162 passengers and crew. How can this happen; and – since flying is supposed to be so safe – how big is the risk?


The easy part to answer is the risk. It is almost infinitesimal. Commercial jets have been getting safer and safer for fifty years (although there was a blip in the 1980s due to terrorism). Nowadays the odds of being killed on a flight with reputable airlines is about one in twenty million. Even with the worst performing carriers you could expect to take a million and a half flights before being involved in any event in which somebody was killed. The global fatality rate about 1,000 a year, compared to over 1,000,000 deaths on the road, so mile for mile or minute for minute flying is much safer than driving. But the aviation industry can’t rest on its laurels. Every crash makes headlines so with passenger numbers rising five per cent each year the safety factor has to grow by five per cent simply to keep pace.

Hence the AirAsia disaster is not just a terrible tragedy for those involved, but a huge worry for the industry in general.

The safety authorities – like Britain’s Air Accident Investigation Branch – are usually tight-lipped at times like these. Hasty inquiries can miss key facts and jump to unjustified conclusions, apart from which official verdicts can ruin careers and prompt multi-million dollar law suits. Accordingly they try to stick to facts and avoid public speculation, usually taking months and sometimes years before they issue their reports.

That doesn’t stop the media, of course, which respond to public anxiety and to the human impulse to make sense of uncertainty. This can lead to wild conjecture in the early days but usually reporting converges over time so that there are few surprises by the time the official reports are published.

Initial radar tracks indicate the plane gained altitude at an alarming rate. If this is borne out by data from the flight recorder it might explain the crash, perhaps through jammed control surfaces, with such ascent creating catastrophic damage to the airframe, or simply causing loss of forward speed.

And yet that doesn’t necessarily mean that the aircrew climbed too steeply to avoid the storm. The theory sounds credible because it was just such pilot error that caused the loss of AF447, the Air France Airbus that disappeared into the Atlantic in 2009. One pilot’s relentless anxiety to climb slowed the plane so much that it stalled and fell out of the sky. There is, in my view, an intrinsic risk in the Airbus design that contributed to the A447 tragedy – a design that makes it harder for one pilot to see what the other one is doing so the error wasn’t spotted by the flying officer’s colleagues until it was too late – but the Air France crash was so seminal that every airline beefed up training and every commercial pilot in the world would be allergic to the danger. It would be both astonishing and scandalous if AirAsia’s crew remained somehow unenlightened.

What seems more plausible is that the storm itself caused the aircraft to malfunction. Thunderstorms can generate enormous updraft, although it’s hard to imagine a  current so sustained that could lift a 70-tonne fully-laden airliner for more than a few seconds.

Big jets like an Airbus are remarkably robust. They can be hit by lightening, buffeted by turbulence, baked by sun on the tarmac and frozen at high altitude. Their engines are so reliable they almost never fail. They can cope with huge variations in air temperature, rain, snow and with rare exceptions even ingesting foreign object such as after bird strikes.

At least one weather event has proved dangerous – one that is hard to predict and largely invisible to radar.

When moist air rises rapidly above tropical sea, supercooled droplets of water can freeze when they encounter the cold surfaces of a high-flying airframe. This is rarely a problem because small ice particles melt on impact with the heated windscreen and vaporise in the engines. But sometimes convection storms can cause moisture to freeze so rapidly it forms crystals, and these so-called convective crystals have been known to cause damage to planes and temporary power loss.

Each engine on an A320-200 Airbus like AirAsia’s QZ8501 sucks in around a ton of air each second. A very heavy concentration of ice crystals could conceivably overcome the enormous momentum of the turbines and kill off forward thrust. The pilots would than have to glide the aircraft while they fought to revive the engines. They would have ample time to do so. A wide-bodied jet can glide about eight miles for every 1,000 feet of altitude. Famously, in 1982 a British Airways jumbo flew for 13 minutes without power after flying through volcanic ash. It was still at 13,000 feet when first one and then the other engines came back on line. If convective crystals had done for QZ8501 what volcanic ash had done for BA09 two decades earlier then, depending on the weather, the Airbus should have had a range of at least 50 or 60 miles.

If the engines couldn’t be re-started then Captain Iriyanto would have had no option but to try landing in the sea. That would be hard enough in tranquil conditions on flat-calm water, like the ditching of US Airways flight 1549 in the Hudson six years ago. But QZ8501 would have come down in tumultuous turbulence into mountainous waves. At more than 70 tonnes and 37-metres long it would not have stood a chance.

The idea of a pancake landing in heavy seas would account for the fact that large pieces of the fuselage appear to be intact at that bodies have been found floating on the surface. Had the aircraft fallen vertically, as some reports suggest, it would impacted the water as though hitting a concrete wall.

flight path

On the other hand an attempted landing assumes that the pilots had control. Why in that case was there no Mayday call? Why was the crash site so close to where the last radio contact was made, suggesting the Airbus really had dropped rapidly? This brings us back to those reports that the plane rose more like a fighter plane that a commercial airliner, perhaps caught in freak updrafts and downdrafts which threw it around the sky and then hurled it into the Java Sea.

We will know the answers soon. Unlike Air Malaysia’s MH370, still missing in the southern Indian Ocean, the AirAsia wreckage is in water shallow enough even for recreational divers. Only foul weather, with 4 metre waves, strong currents and poor visibility, has been frustrating efforts to locate and recover the flight recorders located near the tail. Horrifying though the crash has been, it will soon yield its secrets and, though of little consolation to those who have been bereaved, it will contribute to make flying even safer than it is already.

The rape of Richard Dawkins

June 2015

The ‘rape’ of Richard Dawkins

Richard Dawkins, the biologist and proselytising humanist, used the sensitive subject of rape to illustrate a logical point: that “to judge something bad and something else very bad is not an endorsement of the lesser of two evils. Both are bad.” This proved too much for some, who prefer to think in absolutes, and others for whom sexual crimes must be subject to absolutist condemnation.

Professor Dawkins’s Tweets included, “Date rape is bad. Stranger rape at knifepoint is worse. If you think that’s an endorsement of date rape, go away and learn how to think,” and, “Mild pedophilia is bad. Violent pedophilia is worse. If you think that’s an endorsement of mild pedophilia, go away and learn how to think.”

Few of his critics appear to have read his explanation for choosing sex crimes to illustrate his point: just because they are so often taboo. “Rationalists like us should be free to follow moral philosophic questions without emotion swooping in to cut off all discussion, however hypothetical.”

Poor Richard Dawkins. The reaction to his comments on rape quickly turned to angry and sometimes gleeful vilification. The Twittersphere and blogs revelled in sneering condemnation and people will be reluctant to come to his defence because they themselves will be courting trouble and be caricatured as defenders of the indefensible.

The vituperation would have taken aback a lesser man than Dawkins, as it did me when I was rounded on a year ago, plummeting instantly as one writer described it from national treasure to public enemy number one. In my case the Mail on Sunday, having serialised my book on Crime, confected a story which made me out to be a rape-condoning misogynist, and quoted an especially wounding comment from Jo Wood, a highly respected rape crisis campaigner. The media pounced on me as they have on Dawkins. Actually having read my book Jo Wood told me she felt she had been set up, that my words, far from being misogynistic had been twisted into sound bites and that when read in context, they “actually strengthen the arguments for sexual violence crimes to be treated with the empathy and respect that victims demand.” She went on: “I would seriously suggest anyone who still supports the furore that has broken out – takes time out to READ THE BOOK.”

The Mail On Sunday offered a right of reply – which it promptly buried under a repeat of the allegations against me, and no other newspaper bothered to rebalance its portrayal.

This time even the redoubtable and usually thoughtful Shami Chakrabarti allowed herself to be dragged in to the fray. What is disconcerting is that someone of her perceptiveness, sensitivity and intelligence should appear ready to join a chorus of angry abuse. It was a reaction that brooks no argument, and she, of all people, should not seek to close down a debate.

Let’s be clear what Professor Dawkins has been saying: that some crimes can be worse than others and that some victims’ experiences of a crime can be more terrible than others. He is urging us to shun absolutism. Had he illustrated his argument by citing homicide he might have won general assent. Even the law, which sometimes require us to see the world as binary, acknowledges differences between culpable murder, manslaughter and infanticide. But it is dangerous to voice anything outside the new orthodoxy when it comes to rape.

Dawkins used the word “mild” to describe the least intrusive spectrum of paedophilia – perhaps meaning those who yearn but do not touch. Never mind that in the cool logic of a philosophy tutorial his choice of adjective might have been reasonable. In the world of social media, where reflexes are often framed by sound bites, it was tantamount to incitement. It was widely, and wrongly, assumed that he’d used the word to describe penetrative rape. The resulting furore was an ironic illustration of precisely what he was trying to convey: that there are gradations in almost every human behaviour and experience but that such nuances are too often elbowed out.

There are reasons to be especially sensitive in discussing any sexual crimes. For many years victims were discouraged from complaining and if they persisted they were frequently debased by the police and humiliated by the courts. The growth in recorded sexual offences is testament to greater confidence in the system but trial by jury remains as much a trial for the principal witness in rape cases as it is for the defendant. In some cultures victims dare not speak out at all. It is entirely reasonable to be critical of anyone who belittles the crime of rape.

But that does not mean that all rapes are the same. Only those who think in slogans can say otherwise and it is not helpful to anyone to insist on a one-size-fits-all platitude. Abusing Dawkins down does not help us to frame more appropriate ways to tackle what is in reality a multitude of problems. But it is also deeply patronising to many victims with diverse experiences.

In fact it is not just those whom Shami Chakrabarti calls “clunky” men of a certain age who think rape isn’t always of the same severity. Several female commentators have also provoked outrage with similar observations. But above all, listen to the victims. I have met and worked with victims over many years and they do not accord to a simplistic model and did not all experience the same degree of trauma, revulsion, self-blame, or any other standardised emotion that campaigners sometimes seem to want to attribute to them. Nor is the evidence just anecdotal. A large scale survey revealed that around half of women who had penetrative sex against their will did not consider themselves to have been raped. They are wrong, of course, on any definition, but are we to drown out their experiences because they do not comply with the way we think they should think? Are we to accuse them of foolishness, or of letting the side down, or – worse – of not being victim enough?

Some countries take a more sophisticated view, with a graduated judicial approach which recognises differences between sexual assault and, say, aggravated assault with a weapon. We should go further and finally accept that conventional adversarial trials are not always the appropriate way to tackle intimate violence.

For more on this see the thoughtful response in The Times by Carol Sarler, who has been a victim both of date rape and serious sexual assault by a stranger, and who points out that, “they are so obviously different”.

Sexual harassment and predation will not be tackled through shouting down people like Richard Dawkins. If ever there was a subject that should recoil from insults and deserves rational reflection this is it.

Medical Innovation Bill

May 2015

From The Daily Telegraph 2 June 2014

The ‘Saatchi Bill’: can a PR guru cure cancer?

Lord Saatchi’s medican innovations Bill won’t encourage good research – and, in its original form, could have opened the door for dangerous quackery

By Nick Ross

Lord Saatchi has promoted a private Bill whose supporters have implied it might help to cure cancer. Unsurprisingly his idea has drawn a lot of approval from the public, and even from the Telegraph. After all, who could be against innovation in medicine?

Sadly the Bill is misnamed and misguided. It will not promote invention, it will not help cure cancer or any other disease and it could be harmful. Thankfully it is being substantially revised, but even so it could well set the clock back.

How is that possible?

The answer is that Lord Saatchi, though a grieving widower and a PR genius, is not a medical researcher, or even a scientist. He believes that doctors are held back from prescribing innovative treatments out of fear of litigation. Many have told him there is an “invisible red light” which holds them back. But it is a fantasy, and if some doctors misunderstand the facts they need to be better advised. Neither he nor his supporters can cite a single instance where legitimate research has been hampered in this way. Medical research faces too much red tape but it is not besieged by hyena lawyers. The NHS Litigation Authority says such claims are vanishingly rare. In fact clinical research accounts for only 0.01 per cent of NHSLA payments, and these were cases where recklessness was alleged. The biggest defence group in the world which defends doctors against litigation is the Medical Protection Society and it too opposes the Bill. It says bluntly it has “seen no evidence that a fear of clinical negligence claims is holding back medical innovation”.

It wouldn’t be so bad if the Bill was simply unnecessary, but as first drafted it was positively dangerous. It proposed to give clinicians legal immunity if they try new things out. But breakthroughs in medical research are made systematically, one step at a time involving scrupulous trials with ethical oversight and peer review. It would be reckless to return to the age freelance have-a-go heroes who experiment on their patients. This would undermine evidence-based medicine.

Until this week the Bill required that there must be “plausible reasons why the proposed treatment might be effective”. But it did not require scientifically plausible reasons. To quacks, faith healers, fools and conmen (and sadly even some qualified physicians) almost anything is plausible, including meridians, spirits, water memory and laying on of hands.

In any case, plausible theories can be, and have often proved to be, spectacularly and fatally misleading. Laying babies to sleep on their stomachs (so they don’t ingest vomit) was a plausible idea that resulted in thousands of cot deaths. Dozens of other half-baked ideas – giving oxygen to premature babies or steroids for brain injury – have taught how persuasively dangerous credible notions can be.

Maurice Saatchi invited me to discuss my concerns with him three months ago and graciously accepted that the Bill should be amended (a) to avoid opening the flood gates to quackery or to buccaneering experimentation on vulnerable patients; and (b) to provide for the essential importance of disseminating results.

Meanwhile, the magnificence of the Saatchi marketing machine has overshadowed the fact that bulk of the medical research community has since come out against the Bill including the NHS Health Research Authority, the Academy of Medical Royal Colleges, medical research charities such as Cancer Research UK, the General Medical Council, the Medical Protection Society, the British Pharmacological Society and senior lawyers like Robert Francis QC. [You can see a selection of the opponents here.]

To his great credit Maurice Saatchi has been listening. His new version is to be published on Thursday and it will embody fundamental changes. For a start it will specifically exclude research – the very thing it was touted to be liberating. And, thank heavens, it will now require consultation with appropriately qualified colleagues, including any relevant multidisciplinary team. Of course if appropriately qualified doctors and multi-disciplinary teams are all outside the scientific consensus, as is the case in dubious clinics in Switzerland and Mexico for example, even downright quackery would be covered by this clause. But above all the revised Bill is likely to retreat from its founding principle, which was to insulate doctors from common law. It will now specifically acknowledge that nothing in the Bill is intended to stop patients suing doctors for negligence.

In essence then, the revised Bill will simply allow doctors to do what they can do already, which is to try out last-ditch remedies. But there will be an advance. Although it is not yet in the one-and-a-half-page draft to be published this week, his staff have made me a “copper-bottomed” promise that Lord Saatchi will make further amendments to seek to collect results of all these desperate measures and will disseminate results.

Since more work is to be done maybe the Bill could yet be turned to much greater advantage. I have proposed to Lord Saatchi that he could rebalance the Bill to tackle the real problem of healthcare litigation. This is the 99.99 per cent of claims that have nothing to do with innovation but drain the health service of £2.25 billion a year, are of serious concern to clinicians, create a burden on legal aid and cause a great deal of personal distress. Claims against surgeons and physicians range from the spurious, sometimes whipped up to a froth by greedy lawyers, to the tragic, which damaged patients sometimes find hard to pursue; but all of them are hugely expensive and a big distraction. The legal costs can dwarf the actual damages awards and they very frequently deter health authorities from challenging questionable claims.

Claims should first go to mediation or arbitration with some right of appeal to an ombudsman. The ombudsman’s decision would be binding but in turn he or she could, if a case was thought to be particularly serious or of public importance, refer the matter to the courts.

There are good precedents for legally binding arbitration, and the ombudsman system is well-established and highly regarded. But in any case the principles of reconciliation and escalation would be a big advance on the damaging adversarial process we now have. And it could save the NHS a ten figure sum each year.

Meanwhile a Bill which promises to free us from unnecessary restraint, and is riding the surf of a brilliant publicity campaign, misses the big picture to solve a problem which is largely just one of perception.


Saatchi debate March 2015

AF447 ‘Dammit we’re going to crash’

July 2009

The mystery of Air France Flight 447’

In the early hours of June 1 2009, Air France Flight 447 from Rio de Janeiro to Paris went missing, along with 216 passengers and 12 crew. The Airbus A330-200 disappeared mid-ocean, beyond radar coverage and in darkness. It took a shocked and bewildered Air France six hours to concede its loss and for several agonising days there was no trace. It was an utter mystery. No other airliner had vanished so completely in modern times. Even when wreckage was discovered the tragedy was no less perplexing. The aircraft had flown through a thunderstorm, but there was no distress signal, and the jet was state-of-the-art, a type that had never before been involved in a fatal accident. What had caused it to fall out of the sky?

The official report by French accident investigators is due in a month and seems likely to echo provisional verdicts suggesting human error. There is no doubt that at least one of AF447’s pilots made a fatal and sustained mistake, and the airline must bear responsibility for the actions of its crew. It will be a grievous blow for Air France, perhaps more damaging than the Concorde disaster of July 2000.

But there is another, worrying implication that the Telegraph can disclose for the first time: that the errors committed by the pilot doing the flying were not corrected by his more experienced colleagues because they did not know he was behaving in a manner bound to induce a stall. And the reason for that fatal lack of awareness lies partly in the design of the control stick – the “side stick” – used in all Airbus cockpits.

Anything to do with Airbus is important. The company has sold 11,500 aircraft to date, with 7,000 in the air. It commands half the world market in big airliners, the other half belonging to its great American rival, Boeing.

The mystery of AF447 has taken three years to resolve, involving immensely costly mid-Atlantic searches covering 17,000 square kilometres of often uncharted sea bed to depths of 4,700 metres. So remote was the place the airliner went down, in equatorial waters between Brazil and Africa, that it was five days before debris and the first bodies were recovered. Finally, almost two years later, robot submarines located the aircraft’s flight recorders, a near-miraculous feat that revitalised the biggest crash inquiry since Lockerbie.

Prior to the recovery of the recorders, the cause of the disaster could only be inferred from a few salvaged pieces of wreckage and technical data beamed automatically from the aircraft to the airline’s maintenance centre in France. It appeared to be a failure of the plane’s pitot (pronounced pea-toe) tubes – small, forward-facing ducts that use airflow to measure airspeed. On entering the storm these had apparently frozen over, blanking airspeed indicators and causing the autopilot to disengage. From then on the crew failed to maintain sufficient speed, resulting in a stall which, over almost four minutes, sent 228 people plummeting to their deaths.

But why? Normally an A330 can fly itself, overriding unsafe commands. Even if systems fail there is standard procedure to fall back on: if you set engine thrust to 85 per cent and pitch the nose five degrees above the horizontal, the aircraft will more or less fly level. How was it that three pilots trained by a safe and prestigious airline could so disastrously lose control? Either there was something wrong with the plane, or with the crew. Airbus and Air France, both with much to lose, were soon pointing accusing fingers at each other.

In July last year the French air crash investigation organisation, the Bureau d’Enquêtes et d’Analyses (BEA), published its third interim report. For Air France the conclusion was crushing: the crew had ignored repeated stall alerts and kept trying to climb, instead of levelling off or descending to pick up speed. The A330 had become so slow that it simply ceased to fly. Its reputation on the line, Air France came as close as it dared to repudiating the finding. The pilots, said the airline, had “showed unfailing professional attitude, remaining committed to their task to the very end”.

But the airline’s case seemed thin. All indications suggested the aircraft had functioned just as it was designed. The black box recordings showed that the plane was responsive to the point of impact. The case against the pilots looked even worse when a transcript of the voice recorder was leaked. It confirmed that one of the pilots had pulled the stick back and kept it there for almost the entirety of the emergency. With its nose pointed too far upwards, it was little wonder that the Airbus had eventually lost momentum and stalled. But this analysis begs the question: even if one pilot got things badly wrong, why did his two colleagues fail to spot the problem? The transcript of increasingly panicky conversations in the cockpit suggests they did, but too late.

AF447 was four hours into its 11-hour overnight journey when it was overwhelmed by disaster. Many passengers, including five Britons, would have been trying to grab some sleep, only half aware of the turbulence buffeting the A330. There were eight children onboard, including Alexander Bjoroy, an 11-year-old boarder at Bristol’s Clifton College. Also travelling was Christine Badre Schnabl and her five-year-old son, Philippe. She and her husband had purposely chosen separate flights to Paris, possibly because of their shared fear of air crashes. He had taken off earlier with the couple’s three-year-old daughter.

Two hours in, Marc Dubois, the veteran captain, was heading for a routine break. His deputy, David Robert, a seasoned flier with 6,500 flying hours under his belt, was perfectly capable of coping with the tropical thunderstorm AF447 was flying towards. Pierre-Cédric Bonin was at the controls and, though the most junior pilot, he had clocked up a respectable 2,900 hours on commercial jets.

As the airliner entered the worst of the weather, Bonin told the cabin crew to prepare for turbulence. Eight minutes later, everyone on board would be dead. Bonin himself seems to have been spooked, calling attention to a metallic smell and an eerie glow in the cockpit. Robert reassured him that it was St Elmo’s fire, an electrical fluorescence not uncommon in equatorial thunderstorms. A few moments later the outside air temperature plummeted, the pitot tubes iced up and an alarm sounded briefly to warn that the autopilot had disengaged. From this moment, Bonin’s behaviour is strange. The flight recorder indicates that, without saying anything, he pulled back on the stick and, seemingly against all reason, kept the nose up, causing a synthesised voice to warn, “Stall! Stall!” in English as the airspeed began to drop dangerously. Robert took 20 or 30 seconds to figure out what was happening before ordering Bonin to descend. “It says we’re going up. It says we’re going up, so descend.” Seconds later Robert again called out, “Descend!” and for a few moments the plane recovered momentum and the stall warning ceased. But Robert was now anxious enough to call for the captain to return to the cockpit. Meanwhile, Bonin’s instinct was again to pull back on the control stick. He left it there despite the stall warning that blared out some 75 times. Instead of moving the stick forward to pick up speed, he continued to climb at almost the maximum rate. If he had simply set the control to neutral or re-engaged the autopilot, all would have been well.

A minute after the autopilot disconnected, Bonin muttered something odd: “I’m in TOGA, huh?” TOGA stands for Take Off, Go Around. Bonin was apparently so disorientated that he believed he was operating at low altitude, in a similar situation to a pilot having to abort a landing approach before circling for a second attempt. Standard procedure on abandoning a landing is to set engines to full power and tilt the aircraft upwards at 15 degrees. But Flight AF447 was not a few hundred feet above a runway. Within a minute it had soared to 38,000 feet in air so thin that it could climb no more. As forward thrust was lost, downward momentum was gathering. Instead of the wings slicing neatly through the air, their increasing angle of attack meant they were in effect damming it. In the next 40 seconds AF447 fell 3,000 feet, losing more and more speed as the angle of attack increased to 40 degrees. The wings were now like bulldozer blades against the sky. Bonin failed to grasp this fact, and though angle of attack readings are sent to onboard computers, there are no displays in modern jets to convey this critical information to the crews. One of the provisional recommendations of the BEA inquiry has been to challenge this absence.

Bonin’s insistent efforts to climb soon deprived even the computers of the vital angle-of-attack information. An A330’s angle of attack is measured by a fin projecting from the fuselage. When forward speed fell to 60 knots there was insufficient airflow to make the mechanism work. The computers, which are programmed not to feed pilots misleading information, could no longer make sense of the data they were receiving and blanked out some of the instruments. Also, the stall warnings ceased. It was up to the pilots to do some old-fashioned flying.

With no knowledge of airspeed or angle of attack, the safest thing at high altitude is to descend gently to avoid a stall. This is what David urged Bonin to do, but something bewildering happened when Bonin put the nose down. As the aircraft picked up speed, the input data became valid again and the computers could now make sense of things. Once again they began to shout: “Stall, stall, stall.” Tragically, as Bonin did the right thing to pick up speed, the aircraft seemed to tell him he was making matters worse. If he had continued to descend the warnings would eventually have ceased. But, panicked by the renewed stall alerts, he chose to resume his fatal climb.

Yet if Bonin was now beyond his knowledge and experience, the key to understanding the crash is Robert’s failure to grasp the mistake being made by his colleague. It is here that Airbus’s cockpit design may be at fault.

Like all other aircraft in the modern Airbus range the A330 is controlled by side sticks beside pilots’ seats, which resemble those on computer game consoles. These side sticks are not connected to the aircraft control surfaces by levers and pulleys, as in older aircraft. Instead commands are fed to computers, which in turn send signals to the engines and hydraulics. This so-called fly-by-wire technology has huge advantages. Doing away with mechanical connections saves weight, and therefore fuel. There are fewer moving components to go wrong, the slender electronic wiring and computers all have multiple back ups, and the onboard processors take much of the workload off pilots. Better still, they are programmed to compensate for human error. The side sticks are also wonderfully clever. Once a command is given, say a 10-degree left turn, the pilot can let the stick go and concentrate on other issues while the 10-degree turn is perfectly maintained. According to Stephen King of the British Airline Pilots’ Association, it’s an admired and popular design. “Most Airbus pilots I know love it because of the reliable automation that allows you to manage situations and not be so fatigued by the mechanics of flying.”

But the fact that the second pilot’s stick stays in neutral whatever the input to the other is not a good thing. As King concedes: “It’s not immediately apparent to one pilot what the other may be doing with the control stick, unless he makes a big effort to look across to the other side of the flight deck, which is not easy. In any case, the side stick is held back for only a few seconds, so you have to see the action being taken.”

Thus it was that even when Bonin had the A330’s nose pointed upward during the fatal stall, his colleagues failed to comprehend what was going on. It seems clear from the transcripts that Robert assumed the plane was flying level or even descending. Robert himself was panicking: “We still have the engines! What the hell is happening? I don’t understand what’s happening.” Ninety seconds after the emergency began the captain was back in the cockpit demanding: “What the hell are you doing?” To which both pilots responded: “We’ve lost control of the plane!” Dubois took the seat behind his colleagues and for a while was as perplexed as they were. It was pitch black outside, warning lights were flashing and some of the screens were blank. The men in front partially blocked his view and evidently he did not take much notice of a horizon indicator, which must have shown the plane was still being held nose up. The Airbus was soon falling through the night at 11,000 feet per minute, twice as fast as its forward travel. Only 45 seconds before impact Bonin blurted out that he had been trying to climb throughout the emergency, giving his colleagues the first indication of what had been going wrong. There is one final, dramatic exchange:

02:13:40 (Robert) “Climb… climb… climb… climb…” 02:13:40 (Bonin) “But I’ve had the stick back the whole time!” 02:13:42 (Dubois) “No, no, no… Don’t climb… no, no.” 02:13:43 (Robert) “Descend… Give me the controls… Give me the controls!” Robert takes control and finally lowers the nose, but at that moment a new hazard warning sounds, telling them the surface of the sea is fast approaching. Robert realises the ghastly truth – that he hasn’t enough height to dive to pick up speed. The flight is doomed. 02:14:23 (Robert) “Damn it, we’re going to crash… This can’t be happening!” 02:14:25 (Bonin) “But what’s going on?” The captain, now acutely aware of the aircraft’s pitch, has the final word: 02:14:27 (Dubois) “Ten degrees of pitch…”

There the recording ends.

Mercifully, data recordings and impact damage on debris confirm the Airbus was still more or less level when it hit the sea. Some of the passengers might have dozed throughout the descent; others may have attributed it to violent buffeting. Those in window seats would have seen only darkness. There is reason to hope that there was not too much panic on board, but this is small consolation.

It seems surprising that Airbus has conceived a system preventing one pilot from easily assessing the actions of the colleague beside him. And yet that is how their latest generations of aircraft are designed. The reason is that, for the vast majority of the time, side sticks are superb. “People are aware that they don’t know what is being done on the other side stick, but most of the time the crews fly in full automation; they are not even touching the stick,” says Captain King. “We hand-fly the aeroplane ever less now because automation is reliable and efficient, and because fatigue is an issue. [The side stick] is not an issue that comes up – very rarely does the other pilot’s input cause you concern.”

Boeing has always begged to differ, persisting with conventional controls on its fly-by-wire aircraft, including the new 787 Dreamliner, introduced into service this year. Boeing’s cluttering and old-fashioned levers still have to be pushed and turned like the old mechanical ones, even though they only send electronic impulses to computers. They need to be held in place for a climb or a turn to be accomplished, which some pilots think is archaic and distracting. Some say Boeing is so conservative because most American pilots graduate from flying schools where column-steering is the norm, whereas European airlines train more crew from scratch, allowing a quicker transition to side stick control.

Whatever the cultural differences, there is a perceived safety issue, too. The American manufacturer was concerned about side sticks’ lack of visual and physical feedback. Indeed, it is hard to believe AF447 would have fallen from the sky if it had been a Boeing. Had a traditional yoke been installed on Flight AF447, Robert would surely have realised that his junior colleague had the lever pulled back and mostly kept it there. When Dubois returned to the cockpit he would have seen that Bonin was pulling up the nose.

There is another clever gizmo on the Airbus intended to make life simpler for the pilots but that could confound them if they are distracted and overloaded. Computers can automatically adjust the engine thrust to maintain whatever speed is selected by the crew. This means pilots do not need to keep fine-tuning the throttles on the cockpit’s centre console to control the power. But a curious feature of “autothrust” is that it bypasses the manual levers entirely – they simply do not move. This means pilots cannot sense the power setting by touching or glancing at the throttle levers. Instead, they have to check their computer screens. Again Boeing have adopted a different philosophy. They told the Telegraph: “We have heard again and again from airline pilots that the absence of motion with the Airbus flight deck is rather unsettling to them.” In Boeing’s system the manual handles move, even in automatic mode.

All the indications are that the final crash report will confirm the initial findings and call for better training and procedures. With the exception of Air France, which has a vested interest in avoiding culpability, no one has publicly challenged the Airbus cockpit design. And while Air France has modified the pitots on its fleet, it has said nothing about side sticks.

It is extremely unlikely that there will ever be another disaster quite like AF447. Crews have already had the lessons drummed into them and routine refresher courses on simulators have been upgraded to replicate AF447 high-level stalls. Airbus has an excellent safety record, at least as good as Boeing, and the A330 is an extremely trustworthy aircraft. Flying is easily the least dangerous way to travel, far safer than a car. But while more of us take to the air each year, a single crash is enough to damage confidence.

Critics of side sticks may now argue that Airbus should return to the drawing board. A feature designed to make things better for pilots has unintentionally made it harder for them to monitor colleagues in stressful situations. Yet there is no sign that the inquiry will call for changes to the sticks and Airbus remains confident about the safety of its technology. It will resist what it regards as a retrograde step to return to faux-mechanical controls. The company is unable to speak openly during the investigation, but a source close to the manufacturer says: “The ergonomic systems were absolutely not contrived by engineers and imposed on the pilot community. They were developed by pilots from many airlines, working closely with the engineers. What’s more, it has all been tested and certified by the European Aviation Safety Agency and regulators in the United States, and approved by lots of airlines.”

As Captain King points out, a belief in automation and the elegantly simple side sticks in particular, is integral to the Airbus design philosophy: “You would have to build in artificial feedback – that would be a huge modification.”

A defender of Airbus puts it thus: “When you drive you don’t look at the pedals to judge your speed, you look at the speedometer. It’s the same when flying: you don’t look at the stick, you look at the instruments.”

There is a problem with that analogy. Drivers manoeuvre by looking out of the window, physically steering and sensing pressure on the pedals. The speedometer is usually the only instrument a motorist needs to monitor. An airline pilot flying in zero visibility depends upon instruments for direction, pitch, altitude, angle of climb or descent, turn, yaw and thrust; and has to keep an eye on several dozen settings and lights. Flying a big airliner manually is a demanding task, especially if warnings are blaring and anxiety is growing.

Multimillion-euro lawsuits could follow any admission of liability and it is certainly preferable from Airbus’s point of view that Air France should shoulder the blame for the night when AF447 plunged into the void.

However, no one would suggest that, when it comes to the aircraft we all rely on every day, commercial considerations should come anything but a distant second to safety.

This blog was published by the Daily Telegraph 28 Apr 2012. It led to a meeting with the chief of the UK’s Air Accident Investigation Branch, a submission to France’s equivalent, the BEA, meetings with Airbus officials in Toulouse and to US TV coverage.

Suzy Lamplugh

November 2018

After Suzy, the questions for our law

It’s more than 30 years since the Suzy Lamplugh case first featured on ‘Crimewatch’. Now Nick Ross asks if it’s time the public were less reliant on the police.

There is fascination about a crime like the disappearance of Suzy Lamplugh. Perhaps it’s a very human part of our concern for others and our instinct for self-preservation, or perhaps it borders on the ghoulish. But for me the hunt for her body in Sutton Coldfield invokes two other emotions: remarkable memories of her family, and a gnawing worry that shocking crimes like this distract us from being more thoughtful about policing and crime in general.

We had started <Crimewatch> in 1984, two years before Suzy went missing. BBC bosses thought they had commissioned a run of three public service appeals to pad out the summer schedules, but Crimewatch was an unexpected hit. Long before the age of X-Factor this was a show where viewers could influence the outcome. What’s more, with crime then rampant (older people forget how bad it was) it was a subject everyone could feel engaged with.

But the disappearance of Suzy Lamplugh was special. It evoked a sense of premeditated evil with the added frisson that she might be being held alive, plus the ‘it-might-happen-to-us’ disquiet that an estate agent could be abducted by a potential customer. There was even a blackly comic side, that the client had given his name as Mr Kipper. But much more than that. Suzy Lamplugh had three qualities that, rightly or wrongly (and frankly, wrongly) made the story sensational: she was female, she was pretty, she was middle-class.

Challenges: Nick Ross, with Sue Cook, his co-presenter on the BBC’s Crimewatch, which highlighted the Lamplugh case in 1985

An integral part of Crimewatch was that we re-enacted scenes in the hope of finding witnesses or provoking informants to call in. For reasons of accuracy, but also courtesy, we would often show these reconstructions in advance to the victims or their families, and, as you might imagine, the viewing could be a harrowing affair. I can’t recall the details of our first appeal for Suzy – this was more than thirty years ago and I can’t even remember if Cannan’s name emerged from that first appeal – but I was struck by the demeanour of Suzy’s parents. Some victims are bitter, some insist the offender won’t win and are determined to shrug off their horrible experience, and some set out to create good from evil. Paul and Diana must have been crushed with anxiety but they made the best they could of it. They set up the Suzy Lamplugh Trust and, while still no news emerged of what had happened to their daughter, for the next seventeen years they poured all their spare energies into it until, sadly, Diana was diagnosed with early onset dementia.

The idea of closure is just a cliché – the pain of losing someone close doesn’t go away because someone gets the blame

By then I had experienced murder close to home myself. In my case it was a colleague, not a close family member, and so, while Jill Dando’s death in 1999 was emotionally draining for me and all the team, it was a long remove from what Paul and Diana were going through. Nonetheless, like them I was determined not to be dragged down by anger and vengeance. Yes, of course I was anxious to know who the killer was, but from years working to catch offenders I knew that even an arrest and conviction could never assuage the loss. The idea of closure is just a cliché – the pain of losing someone close doesn’t go away because someone gets the blame. By then I also come to realise a broader truth about crime, that we could never arrest our way out of the problem; there had to be a smarter way. Jill’s death proved to be a catalyst. I had wanted to establish a new approach to crime, but now I also wanted to create a lasting memorial to her. Partly at the prompting of John Stevens, then Met Commissioner, the two ambitions merged into one.

The Jill Dando Institute was created by public subscription – supermarket tills offered forget- me-not badges in memory of Jill – and it has since grown into an entire department at UCL and one of the world’s largest academic centres devoted to cutting crime. It was genuinely original, a truly multidisciplinary approach with a task I described as, ‘examining the chains of events that lead to crime, to find and cut the weakest link’. The term I coined for the new discipline was Crime Science.

I had once thought the weakest link was the offender. In other words, if we caught more people we’d all be safer. But it turns out people are surprisingly hard to change. It was fine to lock up the thief but far more effective to lock the car, or the front door; or in today’s world, to put passwords on our laptops or search baggage at the airport. What’s more, to my surprise, evidence mounted that if you designed out the temptation and the opportunity to commit offences, not all crime was displaced. Most of it just stopped, or, better still, you created a halo effect. The proof that we can conquer crime is crystal clear. It’s what ordinary citizens say is their experience: a huge and consistent quarter-century decline in being a casualty of crime from the mid 1990s onwards. It was achieved largely by designing better products, services and built environments. What’s more, international victim surveys, along with hospital and other records, show it happened not just here in Britain but around the world. Even more surprisingly, it happened everywhere regardless of how tough or liberal criminal sanctions were.

Of course crime is illegal and so hard to measure, with only half what we experience reported to police, including violence. That makes police statistics rather flaky, which is why listening to victims themselves is so important. But even if we take police figures at face value, it’s clear that crime, like disease, is a multitude of sins. Some is still falling (when did you last hear of safe-breaking?), much is intractable, while some (as with knife crime) seems to have been on the rise. Meanwhile calls on the police service are expanding hugely as more of us report intimate offences like sex crime, unacceptable behaviour like racism, or political priorities such as modern slavery. To make matters worse, other helping agencies are stretched and the police are always everyone’s last port of call.

Which begs the question: are we using our police to focus on the most important things?

No one is suggesting that a case like Suzy Lamplugh’s shouldn’t be investigated. Given fears of an abduction it was rightly a matter of extreme urgency, especially while there were hopes she was alive. And it must surely remain a high priority so long as there were fears the offender would strike again. But if we want kidnapping and homicide to have a high priority, what are we prepared to concede is low priority? This is the question Sara Thornton bravely raised this week. Sara now heads the National Police Chiefs Council, and I declare an interest: I sit on one of her advisory boards. Given huge reduction in police funding and the number of sworn officers, what do we want from the resources they have left? Can police be expected to investigate misogyny, or even minor theft? If so, what will we give up instead: investigating shoplifting, mugging, domestic violence? Sara Thornton was daring enough to question the value of historical investigations – especially those where the suspect is now dead, or perhaps, as in the Suzy Lamplugh case, where the prime suspect is already locked away in prison.

These are tough questions. As a society we have shied away from them but they won’t go away, and it’s good that Cressida Dick, the Met Commissioner has now joined Sara to encourage adebate.

I would go further. Where should the balance lie between securing justice for what happened yesterday and devoting resources to heading off crime tomorrow? Indeed should police conduct any investigations at all? For a long time they themselves didn’t think they should. The founders of modern policing were adamant that their role was to prevent crime not detect it. In any case there are other professionals, some better qualified to do investigations, and diversity is usually a good thing. This is especially true as crime migrates from physical, geographically-located offences like car crime to the virtual world and fraud where the police have precious few skills. Incidentally, in my experience even journalists are better at keeping secrets than many detectives.

In any case, crime detection owes much less to individual brilliance, as in the Sherlock Holmes approach, than to great teamwork, generous resources, seamless communication, clever protocols, good IT – and chance. We instinctively overrate conspiracy theories and underrate the influence of chance. But most crime is partly or wholly opportunist, a fact which is so unsettling that writers of crime fiction tend to shy away from it. Thrillers require a satisfying narrative, a plot that inevitably leads you to whodunnit. But in the real world of crime detection, things are much messier. Sometimes the crucial clue just falls into place, sometimes it is frustratingly elusive, and sometimes the mystery is impossible to solve.

Perhaps we need to ask even more disconcerting questions, including whether we as citizens should be less reliant on the police. For centuries it was the duty of everyone to solve crimes for themselves, to raise hue and cry, bring the suspect to justice and sometimes even pay the legal costs. The introduction of policing changed all that but maybe the pendulum has swung too far, leaving too much to the State and too little responsibility with us. The idea of taking the law into our own hands has become disparaged. Nowadays we tend to think of vigilantes as dangerous villains. But as society become richer, there is more to steal (and counterintuitively, crime tends to rise with wealth not poverty). Assuming the world continues in general to prosper then, inevitably, unless we all want to pay a lot more tax, we will be able to rely less and less on the thin blue line.

These big questions are so rarely posed because we are naturally drawn to the dramatic, and especially the most striking – like the case of Suzy Lamplugh. But just as her parents strove so hard to bring forth good from evil, maybe we should think more about the challenge posed by Sara Thornton. Whatever the results of the dig in Sutton Coldfield, we are left with big unanswered questions: what are our own responsibilities and civic duties, and how to balance the resources we have to make us all as safe as possible.