AN EXPERT’S IMPARTIALITY CAN ONLY BE STRETCHED SO FAR: THE COURTS HAVE SAID THIS TYNE AND TYNE AGAIN

I am grateful to barrister Charles Holland for sending me a copy of the decision of District Judge Meek in Endless Stretch -v- Newcastle County Council. A copy can be found in the link on this page.    This case is unusual in that I am writing about a licensing decision in the Magistrates’ Court. However one of the parties introduced an expert witness.  The issues with expert evidence are of universal application.

“In any court proceedings, parties can expect the evidence on which they rely to be tested and, where appropriate, robustly so. The evidence of expert or skilled witnesses, as much as any other (arguably perhaps more so) must be able to withstand that rigorous scrutiny if it is to be afforded weight and if it is to be of assistance to the Court in the way it should be. Where the evidence is found to be lacking it is likely to effect the weight that is given to it and the assistance it can provide the court particularly where the court has other conflicting evidence on which it can rely and place greater weight.”

THE CASE

Newcastle City Council gave planning permission for a “pop up” shopping mall in Newcastle. The appellant, Endless Stretch, appealed that decision to the Magistrates’ Court. As part of its case Endless Stretch introduced the evidence of an expert, Mr Turnham.

THE JUDGMENT ON EXPERT EVIDENCE

The District Judge gave a long and detailed judgment.  This part relates to the evidence of the appellant’s expert witness.

MR ALISTAIR TURNHAM

1. Mr Turnham gave evidence for approximately two days. The report he adopted in 14 evidence in chief is 114 pages long. I do not propose at this stage to provide a review of his evidence. As with all the evidence heard and read I have taken it into account and I will refer to that which I consider to be relevant to my assessment as it arises.

2. In short his oral evidence of substance remained as his report and as set out in his conclusions for the same reasons. He remained of the opinion as set out in paragraph 193 of his report [1/14/422 – 423] that however well operated Stack would, in its current location, unavoidably add to the existing cumulative impact in Newcastle City Centre

3. Mr Turnham was presented to the court as an independent expert witness by the Appellant. There was no suggestion before the service of bundles that any expert evidence was to be relied on by either party.

4. Whilst neither Respondent submitted that Mr Turnham’s evidence should not be admitted and conceded he had some relevant experience to offer, both made forceful submissions about the weight that should be attached to his evidence given concerns they raised. They were in my view at least in part relevant concerns and did go to weight. Given that and the potentially important role of expert/skilled evidence I have considered those concerns in this section.

5. I should say at this point I was invited by both Respondents, but particularly the 1 st Respondent, to comment more generally on the role of expert evidence and the value of their evidence insuch cases. I indicated at the time I was likely to resist the invitation and remain of that view. The Magistrates’ Court is neither a court of binding authority nor a court of record. My assessment of Mr Turnham’s evidence throughout this judgment is in relation to this case, based on the evidence I heard and in the context of the decision I had to make.

6. The purpose of the Court hearing expert or ‘skilled’ evidence is to assist the Court to determine matters about which it cannot be expected to possess an appropriate degree of knowledge or understanding to otherwise do so. The evidence should be relevant to the issues the court has to determine and required to assist the court in making that determination. Such evidence will be used as part of the evidential picture and evaluation of the case as a whole. Given the nature of skilled or expert evidence, it will often form a significant part of that evidential picture and evaluation process.

7. In any court proceedings, parties can expect the evidence on which they rely to be tested and, where appropriate, robustly so. The evidence of expert or skilled witnesses, as much as any other (arguably perhaps more so) must be able to withstand that rigorous scrutiny if it is to be afforded weight and if it is to be of assistance to the Court in the way it should be. Where the evidence is found to be lacking it is likely to effect the weight that is given to it and the assistance it can provide the court particularly where the court has other conflicting evidence on which it can rely and place greater weight.

8. Evidence heard in appeals of this nature are not subject to criminal or civil rules of evidence nor the criminal or civil procedure rules each of which make specific provisions about expert evidence. Hearsay evidence can be admitted. I consider that the case law and procedural rules from those jurisdictions can provide useful guidance to a court or tribunal trying other cases when assessing the admissibility of, or weight to be attached to, expert or skilled evidence. I was referred to Kavanagh v Chief Constable 15 of Devon and Cornwall [1974] 2 WLR 762; Kennedy v Cordia (Services) LPP [2016] 1 WLR 597, in relation to expert or skilled evidence (and in turn its references to the South Australian case of R v Bonython (1984) 38 SASR 45 and the “Cresswell Principles” set out by Mr Justice Cresswell in a case known as The Ikarian Reefer [1993] 2 Lloyds Rep. 68); and Leeds City Council v Hussain [2002] EWHC 1145 (Admin), in relation to hearsay evidence – each to provide some guidance in assessing or weighing evidence admitted in appeals of this nature.

9. Before going further it is necessary to clarify the relationship between Mr Turnham and MAKE Associates. File 1 included a report of Make Associates [1/14/381-495]. The report is entitled “Licence: Stack An Independent Licencing and Cumulative Impact Assessment” and overleaf “By MAKE Associates April 2018”. The index to File 1 refers to this document at tab 14 as “Statement of Alistair Turnham of MAKE Associates dated 19th April 2018”. Within the report at Appendix 1 [1/14/424 paragraph 194] MAKE are described as “leaders in night time economy strategy development and licencing research” and [at para 195] under the sub title “About the researcher” it is stated “MAKE Principal Alistair Turnham undertook this study” and [at paragraph 196] sets out his previous experience and qualifications. This report was written in the first person plural and Mr Turnham’s references were in the plural when giving evidence; in describing the work done, the findings and the conclusions references were to “we” not “I”, in referring to Mr Turnham in the report there were references to him/his/he/Alistair (Turnham) rather than I. During cross examination it was established that MAKE Associates is a consultancy organisation operated by Alistair Turnham as a sole trader. He said that sometimes he/MAKE may work with other associates, researchers or organisations but not on this report. Mr Turnham had undertaken all the work alone. So MAKE Associates and Mr Turnham are one and the same as are the statement of “Alistair Turnham of MAKE Associates” in the index and the “Independent Licensing and Cumulative Impact Assessment….By MAKE Associates” report. The report itself has no clearer date than April 2018 and is not signed nor is there any form of statement of truth attached to it. It seems as if 19th April 2018 (given in the index) cannot be correct: during his evidence Mr Turnham agreed that he was still working on the report on 23rd April 2018. Copies of previous versions of the report were requested by the 2nd Respondent but not provided.

Independence and impartiality

10. The report refers on numerous occasions explicitly or implicitly to its independence and Mr Turnham reiterated this in his evidence. In evidence in chief Mr Turnham said his “brief” was whether there would be any negative cumulative impact to the area from Stack. The Respondents each returned to this during their cross examination. When he was asked by Mr Holland why his report said that his observational notes were for both positive and negative impact given those instructions his response was “that was what my brief was”. When asked why he therefore said both positive and negative he replied that “possibly I need to go back and look at the brief” and then asked why he need to do that “when I do a Cumulative impact assessment it is possible for it to be positive, negative or neutral. The reality is that the majority is negative”. When asked why he said negative only in evidence he repeated “I was briefed to look for negative only” and that “it is perfectly reasonable for someone to instruct you only to look at the negative”. When challenged that it was not reasonable to accept such instructions and then to say in the report that he was looking for both positive and negative he replied that “it may 16 be that I have cut and paste that bit in but my approach is always to look for the positive and the negative.” He was asked if there were positive matters would he put them in the report and the answer was “if that was the brief yes”. He was reminded he had said it wasn’t “in the brief” and answered “I make no bones about it that there will be benefits about Stack …….I cannot comment on every aspect of Stack….I have been objective with the brief I have been given”

11. During his evidence about the report itself more issues arose about his independence and impartiality.

12. His observational notes that were requested by the 2nd Respondent are at [1/19A/615 – 618]. His notes from visiting BPS at [1/19A/617 – 618] in noting the dispersal at 23:00 show “…But there is no fighting as would likely be seen in Newcastle City Centre..”. He had not by this time visited Newcastle to conduct his observations in preparation of this report. In his observational notes for Newcastle at page 616 at 00:33 hours at the Bigg Market and after describing it “..Confirms the area’s reputation.”

13. He considered it important to look at “churn”. He took the figures provided relating to Pilgrim Street Tipi. He sought to make comparisons with other establishments. The only comparator he drew from an establishment in Newcastle was with Harry’s Bar (the premises in which the Appellant has a financial interest) for a period of 6 weeks over the Christmas period 2017/18 on Friday and Saturday nights. It is not clear if the information came directly from Mr Robertson. The other two comparators came from establishments in London that he said were one bar/restaurant premises not of a similar nature to Stack nor the other venues he had said there was value in drawing comparisons with. They “verified that the figures we gave were in the correct range for an evening and night-time economy venue” [1/19A/583]. He was unable to provide the details of those premises for commercial reasons. I return to the churn figures in my assessment.

14. He was asked both in evidence in chief and cross examination about his Instagram post exhibited at [2/19/613] referring to his visit to a restaurant on the night of his observations in Newcastle. The post had a photograph of t 17 i. At paragraph 15 of his report [1/14/389] in describing the application process for Stack “..after objections from …..and other local businesses” – as the papers that Mr Turnham said he had considered made clear the Appellant was the only local business that objected to Stack whereas a number of other local businesses wrote letters of support to be considered by the LSC. ii. At paragraph 36 [1/14/393] he comments on what he says is a problem with the late licence for food “(if) the EHO upon visiting the site were minded to issue a temporary closure notice, it would affect all the independent food (and alcohol) retailers within the site, since in terms of their late licence they are, in reality one retailer. Normal practice in this scenario is that individual registration and late-night licencing would have been built into the licence”. The notes of the decision make it clear that this was not raised as an actual or potential issue by Ms Wallis the representative of Environmental Health responsible authority and by the time of she had withdrawn any objection to the application. Her written evidence which he had seen before the hearing said there was no such issue (as she subsequently confirmed in oral evidence). In examination in chief he conceded this was wrong but gave no explanation for its inclusion in his report. iii. At paragraph 37 of his report [1/14/ 393] he says “it is also worth noting there is no terminal hour currently ascribed to Stack…” and goes on to set out the problems of that. The papers Mr Turnham had showed there was a terminal hour in the licence granted. No explanation was provided for this error when he was cross examined about it.

16. One of the photographs that he had taken whilst making his observational visit to Newcastle (fig 25 at [1/19A/611]) was considered in some detail throughout his evidence. In his caption to the photograph he said “There is an unusually high police and paramedic presence in Newcastle city centre. This ranking of vehicles to treat the wounded and extreme drunkenness is the most visible response we have seen in any UK city. This is very much a coping solution.” He referred to it in similar terms in his evidence. When asked about it in his evidence, Chief Inspector Pickett referred to it as a “safe haven” for vulnerable people to be taken to or use that was paid for by the late night levy and he described it as a proper and responsible approach to vulnerability that the police undertook in partnership with others. It is also referred to within the NCC SLP [1/12/250/paragraph 6.15.2] read by Mr Turnham in preparation of his report, specifying its location (i.e. where the photograph was taken), as an example of one of “various night time safeguarding initiatives” a “safe haven” project with its role described in much the same terms as Chief Inspector Pickett. At no point did Mr Turnham refer to it as a safe haven or recognise it, or any value of it, as such. I note that in the appendix to his report setting out his credentials at paragraph 199 is described “Alistair’s latest project, published in 2017, is the first evaluation of ‘safe spaces’…these schemes provide care for those who are intoxicated or vulnerable….MAKE’s study of these examines their contribution to reducing alcohol related injuries and crime in town centres after dark. The work was overseen by the Local Alcohol Partnerships Group and is being rolled out nationally in 2018 as part of the Home Office’s current Local Alcohol Action Areas 2 programme”.

17. The terms of his instructions were never established more objectively than as set out by Mr Turnham above in his evidence; no letter of instruction was produced although the 2nd Respondent did request it. I remain unclear whether there was in fact any letter of instruction or whether it was an oral instruction. What is clear is that Mr Turnham was  liaising directly with Mr Robertson apparently during the preparation of his report. At [2/19/608] there is an e mail from Mr Rankin to the other parties which includes an e mail from Mr Robertson to Mr Turnham of the same date providing information and saying the plans had been sent separately. He also said in cross examination that he was in direct oral communication with Mr Robertson. See also below about the images provided by Mr Robertson.

18. At [1/14/429 – 440] is Appendix 3 to the report “Media coverage of Newcastle at night” then an introductory paragraph 202. Below is a representative sample of media coverage of Newcastle’s night-time economy” following which there are a series of photographs some with newspaper articles attached to them, some dated and some with captions or descriptions above them. These photographs referred back to one of the stages of his approach [1/14/385] including “7 (iv) we collected photographic evidence to explicate the written findings of our report” (the photographs taken by Mr Turnham himself were not contained in the report, he provided them later having been asked by the 2nd Respondent). In cross examination it was established that these images had been provided to Mr Turnham by his client Mr Robertson. Mr Turnham and ESL had both been involved in appeal proceedings relating to other premises “The Alchemist” in 2016, Mr Turnham had been called as a witness for The Alchemist and ESL was the Appellant. Mr Turnham knew from this that Mr Robertson has some media images used at that appeal and asked him to provide them. He did not consider that approach would damage his independence; it could do but didn’t here as he was simply asking for something that he knew existed and would complement his own links at paragraph 68 of his report. It was subsequently established – almost by accident and in response to a different question – that he had in fact not only asked Mr Robertson for the media images he already knew he had but also to conduct an online search for other images. It also became apparent having been provided with the photographs, he had thereafter made no further enquiry about the images. In cross examination it was established that: the photographs were provided either by Mr Robertson or his assistant; the photographs were not all the same as those used in the Alchemist appeal; it was not clear that they were all in fact media images rather than photographs taken by others – for those he did not know the origins of the images nor the accompanying captions he thought some may have come from a professional photographer; for some it was not established – nor had Mr Turnham taken any steps to do so – that they were Newcastle – for one he said he thought it was as the bin looked like the bins in Newcastle City Centre; where the images that appeared to be media images some of the written (contextual) media coverage had been removed; where there were dates associated with the images they went back to 2016. Ultimately, after some extensive cross examination about the images, when asked by the court whether, in conducting his media review he had found any positive images, he said that his particular instruction was negative, that he would have seen images along the way that weren’t showing negative impact but couldn’t be sure.

Experience, expertise, qualifications and body of knowledge

19. It was not suggested by either respondent that Mr Turnham did not have any experience or qualifications of potential relevance. However again questions were raised about it, Mr Turnham’s approach was left wanting and I was left in a position where a clear assessment could not be undertaken.

20. He readily acknowledged when asked by the Respondents that there was no code of conduct for his work other than the Market Research Society Code of Conduct that was not relevant to this report, that he was not a member of any professional body, his work was not regulated by any outside agency other than “the rules of business and government etc but no specialist organisation”. He was asked about the reference to MAKE as “the world’s leading night time economy consultancy” on his e mail at [2/19/608] and his reference on a social media account to him being recognised as a world leader. To the 2nd Respondent he said MAKE was the only such consultancy so it was accurate. To the 1st Respondent when asked about the description of himself, that it was based on his being introduced as such at conferences, talks and interviews and that he was “generally regarded as the leading expert in this area” that there “are not many of us” and not wanting to blow his trumpet but people “have said to me you are the leading expert you should say so”. There was no external regulator, body or agency who had recognised MAKE or Mr Turnham as such but he was always happy to refer to himself as a leading expert and should there be any misunderstanding about that then the 1st Respondent was invited to undertake a survey of “people” in his area.

21. In his report at paragraph 196 (1/14/424] under the title About the Researcher “Alistair’s specialist subject is the evening and night time economy, a phrase he created in 1994 when he undertook the first of three degrees in the subject”. In cross examination he was challenged about the degrees it having been put to him that he had 3 degrees during examination in chief. He responded that he had corrected himself during examination in chief and that he said he had “undertook 3 degrees”. It turned out what he meant by this was he had an undergraduate degree, a masters in science and some time ago had started but not completed a PHD. It is difficult to understand his reluctance to simply set out the position in a straightforward manner. He had felt the need to correct himself when Mr Rankin asked the question of his qualifications but only to the extent to use the word “undertook”. There was then cross examination about creating the phrase “night time economy”. He said then when referred to an article dated 1990 [2/19/662] that he was “not taking the credit for night time economy. John Montgomory was already talking about it then but not in the same way we use it now”.

22. At paragraph 8 of the report under the title “Objectivity” [1/14/386] “It is important to note the although MAKE is briefed to undertake expert witness studies such as these by courts, licencing committees, barristers and legal firms…”. The  2nd Respondent made a written request before the hearing for details of such work the response to which is set out at [1/19A/613 – 614] and then cross examined Mr Turnham further about it. He said that the use of the word “generally” at page 613 explained that paragraph to refer to the “general area” of “being briefed in legal proceedings”. On further exploration it became apparent he had never been instructed by a court but on two previous occasions by parties in court proceedings; the Alchemist Appeal instructed on behalf of the Alchemist and the Horseferry Magistrates case where he was instructed by solicitors “presumably” on behalf of McDonalds. He was unable to recall if he had ever attended court and given evidence in any other cases. So far as the Licencing Committee cases referred to at page 614 it was the two involving Hammersmith and Fulham Licensing Committee where he believed he was instructed on behalf of the licencing authority. Of those, for the Fiesta Havana case he first said the request came from the Licensing Committee, then the chairman of the licencing committee, then from an officer and he believed it was for the committee. When asked when this was he was unable to give any indication but thought 2008, when suggested by the 2nd Respondent, 20 sounded familiar. For the Walkabout case the instructions came from a licensing officer for the committee.

23. So far as his experience of Newcastle is concerned, his report notes at page 385 paragraph 7 (i) that he “undertook an initial night’s observation of the Stack site, the Newcastle City Centre Stress Area and the City Centre Cumulative Impact Area from 20:00 on Saturday 7th April 2018 through until 01:00 hrs on the morning of Sunday 8th April 2018”. Notwithstanding the use of the word “initial”, his evidence was clear that this was his only visit to Newcastle in the course of this piece of work. In his evidence he said that he had 20 years of experience of Newcastle and that he had drawn on that as well as the 5 hours observation in his report. In re-examination he was asked to clarify this. There were 3 other professional visits – one to the Alchemist in the context of that appeal in 2016, one in relation to some work for a Home Office Programme in late 2017 (I am not clear whether or not that was the same work he was undertaking for the Safe Space project referred to above) and once in his capacity as a special advisor in 2008 or 2009. Other than that he had visited as a DJ (in the 1990s) or in a social capacity to visit friends over the period of 20 years. In total he estimated he had visited 20 times over the last 20 years. During those visits he had built up his knowledge of the city which in turn was backed up by his 30 years of experience in this area of work. Accordingly he said the 5 hour observational period should not be seen in isolation and it needed to be appreciated that he was able to make assessments and identify relevant issues in what may appear to be a short period of time.

Remit of report and methodology

24. Setting aside any issue about the terms of reference of his instructions in respect of objectivity, independence or impartiality to my mind there also appears to be some uncertainty about the remit of the instructions or what the report sought to provide. The report offers a range of possibilities. I will not set them out in full here but they can be found in the report’s various descriptions at the following entries: The title; background section at 1/14/384/paragraphs 1, 4 and 5; the aims of the of this licensing and cumulative impact assessment are set out at 1/14/384/paragraphs 2(6 i – v); Findings overview section at 1/14/387 paragraph 5.1/11(c); Findings context section at 1/14/388/paragraphs 10 – 12.

25. Likewise whilst Mr Turnham agreed that the section of the report entitled Approach [1/14/385/paragraph 7] set out his methodology in preparing this report in 8 stages, it became apparent that in addition in preparing his report he had also taken account of and/or relied on: his previous 20 years of experience in Newcastle none of which is documented nor referred to in the report although a small amount of information about it was obtained in re-examination (when asked about this he queried that it wasn’t referred to in his report but confirmed he had relied on it); relied on statistical information from at least www.police.co.uk but did not refer to that in his report nor provide the information relied on; obtained and relied on information from Mr Robertson and had ongoing communication with him during the preparation of the report. There was also in my view at least some confusion about the relationship between his observational notes and his report. 

Underlying evidence

26. There were few references in the report to the underlying evidence or data on which assertions were based. In large part where they were provided they were references to newspaper articles. By way of example in relation to his evidence about levels crime and disorder and nuisance. At page [1/14/391/paragraph 29] “this is due to the highest level of alcohol-related violence and nuisance in the city (and some of the highest in the UK)”. Further similar entries about crime and disorder are at [1/14/389/paragraph 13], [1/14/422/paragraph 191], [1/14/397/paragraph 57] and [1/14/401/paragraph 84] including references to having reviewed the statistics.

27. There is no reference at any of these points or throughout the report as to where these conclusions are taken from nor, if they were, the statistics on which they are based. Having been asked in writing before the hearing to clarify the basis for the final point referred to above the response was [1/19A/585/30] “The respondent could also visit as we did www.police.co.uk and search the national crime mapping for night-time proxy indicators of violent crime and ASB in the areas. This shows clearly that there are some problems in this part of the CIA, they are considerably more limited than those in the Stress Area.”

28. Having, further to a written request from the 2nd Respondent, provided his own photographs taken during his observations in Newcastle, Mr Turnham included amongst them one (Fig. 23) at [1/19A/609] with the caption including “Here the police statistics show huge amounts of public nuisance problems as well as more serious violent crime requiring a police containment operation”. When asked about the statistics used he said he had visited www.police.co.uk and thought he had referred to the site in his report but on checking he had not. When asked if he had the statistics on which the statement was based he said that he did not but he had looked at the statistics for the last year and they are as he had reported them.

29. The approach section of the report makes no references to websites or other sources of statistical information from which these conclusions can be drawn other than possibly the “assessment of relevant policies from Newcastle City Council pertinent to licensing and night-time economy including the council’s Cumulative Impact Policy (CIP) in which Stack is situated, as well as the Newcastle City Centre Stress Area (which is located adjacent to the Stack Site)”. The NCC SLP (both the 2013 – 2018 and 2018 – 2023 versions) acknowledge the impact of alcohol consumption in Newcastle and the city centre and the problems associated with it including crime and disorder. They do not provide statements comparative to those made by Mr Turnham. The current policy at [1/12/314/paragraphs 3.2.3 and 3.2.4] notes that whilst overall recorded crime has been increasing over the past few years, the proportion of crime that is recorded as alcohol related has decreased slightly over the same period and that alcohol was involved in 13% of overall crime in Newcastle which has reduced since 2014/15. Chief Inspector Pickett also confirmed a reduction in crime in the city centre including a reduction in alcohol related violent crimes in the NTE.

30. Without the source data on which Mr Turnham relies it is not possible to say whether or not his summary of the position is an accurate one in total for the city, the city centre  or the small geographical area he refers to as east of the site. In so far as they relate to the NCC SLP they are at best a subjective view of what is said within it.

31. Likewise at [1/14/396/paragraph 59] he reports that “Newcastle also suffers from a very high level of public place urination…yet despite being a crime our understanding is that it is rarely prosecuted in Newcastle”. Neither assertion was supported by any underlying evidence within his report. In cross examination he said the first assertion was based on that recorded in his observational notes of his visit to Newcastle (which record at 00.30 hours “some urination and urine trails” and in the “Crime and Disorder Count 3 urinations”) as well as a mental note of what he saw. Understanding his role 32. Mr Turnham’s report was served and relied on as “An independent Licencing and Cumulative Impact Assessment” (title) and within the background section as an “expert witness report” [1/14/384/paragraph 4]. Setting aside the concerns I have about Mr Turnham’s independence and impartiality, there were times when it appeared he did not fully understand his role as an independent expert in assisting the court or the role of the other parties in the proceedings. During the exchange about his previous instructions it became apparent he lacked understanding about the relationship between the court, the various parties to the proceedings and him as a witness and in particular who his client was. If there was no such misunderstanding then his evidence at times was misleading whether intentionally so or not.

33. There were a number of examples of errors in the report – some referred to elsewhere in this section. The conflicting information was available to him before the hearing. At no point prior to the hearing and his giving evidence did he seek to correct such errors or to provide any clarification that his opinions and conclusions had been reassessed or remained the same in light of those corrections. Some were clearly what he considered to be relevant matters to the assessment of the LSC – for example the lack of a closing time, the impact of the EHO imposing a closure order on an individual trader. They were all presumably considered relevant enough for him to include them in this report the purpose of which as an expert witness is to assist the court.

34. In response to being asked to provide additional information by the 2nd Respondent he produced a document [1/19A/582] which included the passage “There were an unusually large number of additional requests and as such this has required considerable extra work. In the spirit of cooperation, we have completed it at the earliest opportunity by displacing other work that was planned for in this time to a later date” (my emphasis).

35. When providing some of the additional information requested in relation to his description of the area to the east of the site at [1/14/401/paragraph 84] including his review of the “crime statistics” he did not provide those statistics but suggested that “The respondent could also visit as we did www.police.co.uk”. Likewise when being asked questions about the basis of his assertion to be a leading expert he invited the 1st Respondent to undertake a survey of “people in his area”.

36. When asked about the photographs he had taken on his visit to Newcastle he said that he had not included them in the report as there was insufficient time to do so further  explained in terms of the budget allowed for hours of work. He disputed that they had not been included as they were “too tame” and did not support the Appellant’s case rather that in any event they were not particularly helpful. He was challenged about the need to attach captions to them when only the photographs had been asked for, it being suggested that was an adversarial approach taken by him. He said he had put the captions in as he thought they were helpful for context (albeit he accepted that some of the captions did not relate to the individual photograph they were appended to). The request to Mr Robertson to provide the images was also in part in order to keep costs down.

37. He was asked why this report did not include the same passage contained in another report prepared by him and seen by the 2nd Respondent about not making amendments other than “typos” to a report at the request of clients. He explained that had been removed as he had specifically been asked to consider/clarify two things (about the terminal hour, dispersal and capacity between the two floors). He described that line of questioning by the 2nd Respondent as “fishing around in a report to look for things to use for collateral”.

38. He thought it was “weird” that the 2nd Respondent had referred to the Instagram post referred to above and exhibited at [2/19/613]

Accuracy, objectivity and evasiveness

39. There were several times during his evidence that I considered Mr Turnham’s answers to be evasive; by way of example during the times he was being asked about his qualifications, his former instructions, about the photographs provided by Mr Robertson, about the proximity of Stack to the SSA. He appeared unable or unprepared to answer the questions in a straightforward way. I formed the impression Mr Turnham was reluctant to concede any ground where he thought criticism was being levied at him. At times the exchanges were unnecessarily prolonged because of the way he chose to answer questions with the clear picture not coming out or being conceded by him for some time. He at times took what could be described as an adversarial approach. In my view his evasiveness in these exchanges was at times more damaging to his credibility than any actual or perceived concessions he made.

40. There were other examples throughout his evidence of what appeared to be an adversarial approach or, as the 2nd Respondent put it, “conducting advocacy” to paint Stack in the most disadvantageous light. They include: i. the photographs that were provided at the 2nd Respondent’s request after the report had been served. Having said he had not included them because he did not consider they added much to the report and/or due to budgetary constraints he then provided them but with comments by way of captions at the top of each of them. He went on to acknowledge that each of the captions did not necessarily relate to what the photograph showed. Every photograph of Newcastle that was provided [1/19A/597 – 612] (except for those at Pages 597 – 599 which simply showed the site) had negative comments attached to them and in some cases purported to give additional (negative) evidence; 24 ii. In his observational notes (prepared before the report) at [1/19A/615] he notes “Stack is on the edge of the stress area! Not as far out as it looks on the map”. At [1/14/391/paragraph 29] of his report he said that the “The Stack site is not currently in the council’s core Stress Area….However, it is worth noting that the Stack site effectively abuts the Stress Area” and seeks to clarify that statement. In his evidence he said that it was “incredibly close proximity.” The Stack site does not abut the SSA as was established in evidence. Notwithstanding his own clarifications in his report about what “effectively abuts” meant and his comments in his notes and evidence, Mr Turnham would not accept this. When asked whether he meant that the Stack is effectively next to the SSA his response was “I am saying it effectively abuts it, that is what I say and what I meant”;

41. There was in my view evidence that Mr Turnham had not fully appreciated some of the papers he said he had considered or alternatively had chosen not to present his findings in an objective way. Statements that were established in evidence to be inaccurate during the report were almost all negative to the 2nd Respondent and none were conceded by Mr Turnham before giving his evidence. No explanation was offered for the errors which would have been apparent from the papers he had available before preparing his report and, if not picked up by him then, certainly afterwards when pointed out by other witnesses in their statements. There were a number of examples some of which I have already referred to. They include: i. the lack of a closing hour; the time restaurants served in Newcastle (and here the only example he gave was a restaurant operated by the 2nd Respondent); whether a compromise was reached between the 2nd Respondent and the responsible authorities on individual matters or in general; that other local businesses objected; ii. at [1/14/421/paragraph 190]; that the “council and police – in their consideration of Stack (including after compromises were reached on ….other licensing conditions) – clearly felt that the open space inside Stack (the Plaza) was enough of a concern to restrict it to a limited number of months during the summer and winter season…”; iii. that the 2nd Respondent could simultaneously exploit both the Pilgrim Street Tipi and Stack licences.

42. At least three such errors were referred to in the conclusions of Mr Turnham’s report as to the “likely impact of Stack on the licensing objectives in Newcastle City Centre” [1/14/418 – 423]. There were also other matters that he reported and concluded on that in my view appeared to either miss out or demonstrate a lack of awareness of relevant facts. Again they related to conclusions that were not favourable to Stack. i. [1/14/418/paragraph 181] when referring to the reliance of ‘Boxparks’ on alcohol to cross subsidise retail, food and community events having commented on its dominance elsewhere and the lack of retail at BPC he makes no reference to the minimum and maximum caps for different types of use at Stack. 25 ii. [1/14/419/paragraph 183] having said at page 392 (paragraph 30) that timescale is “not something we consider overtly relevant to any impact on the licensing objectives in this case. However it is worth nothing that both BPS and Pop Brixton are now established on a more permanent footing” he considers it a relevant conclusion that “these ‘pop up’ malls should be considered long-term additions to the neighbourhoods….Licensing and planning conditions and considerations should reflect this even if the initial lease is for only two to five years” He makes no mention at this stage of the time limited nature of the planning consent or premises licence for Stack.

43. There were repeated and unnecessary references in his report pointing out that the Stack site is in the CIA or its proximity to the SSA. For example at [1/14/384 – 5] in setting out his aims and approach there are three such references. He reports at [1/14/391/paragraph 29] that “Stack is not currently in the council’s core Stress Area”. It is difficult to understand why it is necessary to include the word “currently” other than to suggest it is likely to be in future. Either way it is clearly something he considers as relevant yet does not note that the new NCC SLP that was adopted in March 2018 amalgamated and extended the former two City Centre Stress Areas but not such that it included the site for Stack. He made more than one reference to the comparable area in Shoreditch being extended to include BPS (albeit at the time of his report that had not actually happened but was proposed). See also above regarding the site effectively abutting the SSA.

44. There is at least some indication of preconceived ideas or early conclusions being drawn again that were disadvantageous to the 2nd Respondent. These were either his own or those he believed others may have:

i. I have already referred to the comments in his observational notes “….but there is no fighting as would likely be seen in Newcastle City Centre..” relating to the dispersal at BPS before visiting Newcastle and about the Bigg Market where his observations “Confirm(s) the area’s reputation.”

ii. When visiting Newcastle the first observational note he makes on arrival “…will make a big impact to this area – positive (day retail – hinge site) and but mainly negative (evening)”. By the time of his evidence the “mainly negative” impact had changed to “I was able to get a pretty clear picture that there may be some positives but from a cumulative impact point of view it would be overwhelmingly negative” which in answer to a further question became a “very serious effect”.

iii. At the same time in his notes he concluded that Northumberland Street was “not one that many people are using to get to the city centre to access its NTE”. In his evidence he said that remained the case throughout his observations. There are no further references in his notes. There was no reference to the travel movements referred to in council framework and policy documents exhibited to the statement of Mr Wright. He was unaware of and unable to describe the residential area or demographic of residents to the north of Northumberland Street. 26

iv. In his observational notes at [1/19A/615] at 20.25 hours the restaurants are “not as busy as we might expect for a city centre at weekend” and at 20.55. “Circuit city centre (e.g. Collingwood Street and Bigg Market) not as busy as expected”. v. when being asked about the Instagram posting in evidence “the scenes in and about the Bigg Market are known to all”.

vi. During his evidence when being asked about the location and numbers of licensed premises close to the site he thought it was “no secret and the court would use its own experience”.

vii. The issue about whether the site abuts the SSA arose from his initial misinterpretation of the maps he viewed before his visit but he was not prepared to alter that notwithstanding his later observations.

viii. When asked about his motivation for the images he had included in his report he said he was “putting it in to show the kinds of things which we all know and some of which I saw on a smaller scale”.

45. The exchange and his evidence about the “safe haven” and the photographic image at [1/19A/611] that I have already referred to.

46. At [1/14/389 paragraph 13] having said it was unusual, the report says in this case “we also examine the protection of children from harm as this emerged as a key concern for residents” so raising it as an important issue in the “Context” section of his report. There is thereafter no such examination although there are sections in the report that consider each of the other licensing objectives [1/14/397 – 399 paragraphs 57 – 66].

47. In his report and evidence Mr Turnham asked me to give careful consideration to the letters of objection from the public when BPS had applied for a variation of their licence. He pointed out that they were individual letters and not of the generic type often seen. The nature and number of the letters he said was important. At [1/14/408/paragraph 121] “We cannot vouch for the veracity of each individual complaint” but at [1/14/419/paragraph 184] “…residents have been able to provide reliable accounts of this (problems with the licensing objectives)”. I did consider those letters. At least 10 of them contain the same significant passage from (using the letter at 1/14/465 as an example) “1. The premises are located in the Shoreditch Special Policy Area……” through paragraphs 1 – 5 and then a concluding paragraph “..Should the licence be deemed suitable …… ancillary to a meal”. I do not agree with Mr Turnham’s assessment of the letters in total not being of generic type and therefore more persuasive to the extent I consider them relevant to my decision about Stack. As to relevance, in any event, many of the issues raised in these letters are – as one might expect them to be – particular to BPS, its management, its operation and its location and environs.

48. Having considered all of his evidence I was left with the clear impression that Mr Turnham, whether because he was influenced by his initial instructions or otherwise, did not produce an independent or impartial study or give independent or impartial evidence. I cannot reconcile his explanation about his impartiality within the ambit of his instructions to consider negative aspects not least because on occasions when he  was asked about the partiality of aspects of his evidence he referred back to the limitations of working within those instructions. On one reading of at least sections of his evidence it appears that he was not only impartial but determined in his instructions and made positive efforts to point out the negative. I was also concerned about Mr Turnham’s understanding of his role within the proceedings – whether it was a neutral role to assist the court or an adversarial one to maintain his own position or benefit his client.

49. There were times when I considered he adopted an inappropriately adversarial approach and others when I considered him to be evasive particularly when he considered himself or his findings to be being subject to challenge. At times I was equally, if not more, concerned about the manner in which he dealt with questions as with the answers that finally came. I regret to say that Mr Turnham’s approach to questions when he was, or perceived he was, being challenged or criticised all too frequently led to evasive and obstructive exchanges. On occasions he appeared affronted or surprised that he was subjected to rigorous cross examination about relevant issues or that the Respondents had undertaken a forensic approach to his evidence.

50. There were errors, inaccuracies and omissions in his report about matters of varying significance. They were almost always adverse to the 2nd Respondent and were not acknowledged until his live evidence and then remained unexplained. Given their nature I consider them difficult to understand. There are a variety of possibilities none of which, particularly in light of my view of his independence, are particularly attractive in the context of an independent expert providing evidence to a court. At best they suggest that he had not read or thoroughly understood the documentation he had been provided with.

51. I too accept that Mr Turnham has some experience of relevance to this appeal. I do not suggest that his evidence is inadmissible or should be given no weight at all. I was unable to undertake any comparative assessment of his expertise not least given his own evidence about the shortage of supply of such experts or consultancies and his area of work being unregulated or monitored or attached to any professional body. On the basis of the evidence I heard I consider that his report was presented in a way that in some respects over exaggerated his experience, the reach of MAKE Associates and the resources that had been deployed in preparing the report. This not so much in a dishonest way but in a manner that, whether inadvertently or otherwise, painted a less than accurate picture.

52. The images presented in his report that had come from Mr Robertson, whilst not necessarily the most significant issue themselves, although not insignificant, captured a number of my concerns that also arose elsewhere: they demonstrated partiality and an adherence to his instructions rather than an adoption of the approach he previously said he had taken to present the negative, positive and neutral notwithstanding his instructions; that he had as part of his preparation of the report obtained source material from his client and not just that which he knew his client had already but also asking his client to carry out a review; they were out of date; he made assumptions about them and demonstrated a lack of attention to detail and enquiry that would be expected from an independent expert witness; he was evasive when being questioned about them; the way in which he chose to present them in the report arguably added to the lack of 28 objectivity; he presented them as illustrative of his point; when questioned about them he did not see, or was unprepared to see, any problem with his approach.

53. When he was re-examined by Mr Gouriet QC about the criticisms that had been made of him his answers afforded me little comfort. He confirmed that whatever else may be said his evidence was truthful, he had not exaggerated or minimised it to benefit his client or damage the 2nd Respondent, he did not change anything in his report at the request of third parties nor did he set out determined to find negative cumulative impact (although again said that was what he was asked to look for). He was asked if he had reflected on the criticisms that had been made in cross examination and whether he could see some force in them. He thought there were some legitimate concerns about presentation. Asked if he would carry forward some lessons for the future his response appeared to acknowledge that the underlying detail on which conclusions were based was not made available. The concerns about his evidence cannot be dismissed as presentational, they are more fundamental than that. It was also a little late to acknowledge the failing in underlying detail. In my view his responses did not demonstrate any real acceptance of those criticisms nor that he understood the impact of them.

54. I make it clear I do not consider that Mr Turnham was dishonest in his evidence. My concerns were not of the truth or lies variety. Nonetheless, there were real issues about credibility. For the reasons I have given I do not accept that Mr Turnham’s evidence as independent expert evidence. For the same reasons the weight I feel able to give his evidence of substance is reduced.