Related Sector: Expert Witness
On the 13th January 2021, Dr.Gillian Tully published her final report after 6 years in her role as Regulator and she pulls no punches in her review of the “state of the nation” in forensic science.
The Report is divided into two parts: Part A reviews progress and change over the last 6 years; Part B looks more specifically at progress since the previous report.
View the Forensic Science Regulator’s Annual Report 2020
This is essential reading for all those involved in the provision of forensic science services.
The Report identifies a number of areas in which there have been improvements: more disciplines now have documented scientific validation of their methods; more practitioners have objective evidence of their competence; there is continuing work to standardise the interpretation of findings according to robust scientific principles.
The implementation and evolution of quality standards
Perhaps one of the most significant gains has been in the implementation and evolution of quality standards, and what is described as a “significant upturn” in compliance with those quality standards; for example, the implementation of ISO 17025, setting the standards for calibrating and testing laboratories, so that there can be confidence in the quality and reliability of the tests carried out, and results provided, by accredited laboratories. In one organisation in the West Midlands, compliance with ISO 17025 has resulted in fewer CPS requests for additional work, fewer challenges from the defence and fewer court appearances by the forensics team, all of which go to prove the value of compliance.
Compliance with quality standards
Although quality standards exist for all areas of forensic science, compliance is not in evidence across all disciplines.
The Report notes a high level of compliance with quality standards in DNA Analysis and Sampling and in Detecting Contamination. In Fingerprinting, however, there is “much further to go”; interestingly, notes are only now routinely being kept to record the basis of each comparison and the expert’s interpretation – a change brought about only by the need to attain ISO 17025 accreditation.
The Report highlights low levels of compliance in Image Comparison and Digital Media Investigators; in Digital Forensics, compliance is “increasing slowly”.
Incident Scene Investigations, both in Serious Crime and in Digital Scenes, are moving towards compliance and finding benefits and challenges along the way; Forensic Collision Investigation is embracing the adoption of standards “with enthusiasm”.
Governance of Biometrics and Facial Recognition
The FSR has ongoing and major concerns over the governance of Biometrics and Facial Recognition. There is now a new body (albeit not a statutory one) reviewing developments in this field, the National Biometrics Strategy Board and an independent review of biometrics governance is being carried out. The Regulator warns of the dangers of deploying technology before legal, policy and procedural safeguards are in place.
The provision of forensic science evidence to the courts
The Report goes on to focus on the provision of forensic science evidence to the courts, both in written reports and in oral evidence, and urges thorough knowledge of, and full compliance with, the Criminal Procedure Rules and Practice Directions relating to expert evidence (CrimPR Part 19 and its accompanying Practice Directions).
The effective use of forensic science depends on the work being done correctly in the laboratory and on the results being properly reported and properly used in the Criminal Justice System; the first of those is covered by compliance with quality standards; the second is “heavily dependent” on compliance with CrimPR19.
The Regulator raises two questions: firstly, are reports transparent enough to enable challenge; secondly, are reports presenting the evidence as being factual, when it is, in reality, more an issue of “inference, uncertainty and opinion”? This, in turn, raises the question of whether or not forensic scientists are fully aware of their obligations under Part 19.
The Courts need to be told when the expert is providing them with scientific or technical facts and when the expert is providing them with expert opinion, which interprets those facts; if they are being given technical facts, what inferences can the court safely draw for itself from those facts? Those distinctions are not always being made clear by the expert witness.
Quality of evidence, according to the Regulator, now has a “higher profile”, which can only be good for all who are affected by forensic evidence – the police, the courts, complainants, defendants and society at large – all of whom have a stake in the quality of the evidence in the criminal justice system.
Radical change is on its way - there is legislation currently going through Parliament which, if enacted, will give enforcement powers to the FSR for the first time. This has the potential to have a huge impact on the quality and standards of service and science provided by the forensics sector, ensuring that those who do not meet the required standards are no longer in a position to provide those services.
Dr.Tully concludes her report by saying that she leaves the role with optimism, in the light of improvements that have been made, and also with genuine concern about structural and governance failures.
Dr.Tully left her role as the Forensic Science Regulator on the 16th February and her successor is due to be announced soon. Whoever is appointed will take on the role at a time when the quality of forensic science provision has improved as a result of the last 6 years’ scrutiny; there will be a need to build on that foundation and to continue to engage with the wider criminal justice system, and with Government, in order to address the issues that still remain.
To quote from Dr.Tully’s foreword to the Report: “If we are to achieve a fully functioning system, with enough capacity to ensure timely delivery, there is also an urgent need for more fundamental change”.
Since 1994 Bond Solon have been at the forefront of improving the standards of expert witnesses in the UK through the provision of knowledge and skills based learning and certification. We offer specific courses on report writing, giving oral evidence and criminal law and procedure.
Author: Nick Deal, Barrister and Lead Expert Witness Trainer at Bond Solon
This article was first published on Monday 22nd February 2021