Regulation of experts.  Is the proposed cure worse than the disease?

The House of Lords Select Committee on Science & Technology recently published a report1 with a recommendation to provide the Forensic Science Regulator with statutory powers.  We disagree that this ‘solution’ is proportionate, necessary or adequate.  The report states,

“The evidence we received points to failings in the use of forensic science in the criminal justice system and these can be attributed to an absence of high-level leadership, a lack of funding and an insufficient level of research and development.”[1] 

We agree these problems exist and would emphasise that the last is a sine qua non for any of the other solutions proposed by the Committee.  In that regard, we support the creation of a body to provide strategic direction and funding for research to support claims made by forensic practitioners[2].  However, the Forensic Science Regulator has lobbied for statutory powers to enforce ‘standards’ across the entire spectrum of expert evidence. We cannot support the imposition of any ‘standard’ until we are clear about what a standard means, who it will apply to, and who will create and agree them.

Since the advent of attempts to regulate forensic experts in the UK, some form of accreditation has been the general goal, even though it has apparently failed if the problem remains as every forensic laboratory used by the police is now accredited.  This raises serious, but yet unanswered, questions.  For example, who will require to be accredited?  Legal casework involves everything from murder to breaches of health and safety law.  Will every expert require some form of accreditation or certification?  The effect on those lawyers involved in defence work could be severe, with the choice of defence expert restricted only to ‘state-approved’ experts.

It is clear, however, that the Regulator intends an extensive scope to her powers in terms of the individuals and organisations affected.  The Select Committee not only support this ill-defined aim, but propose an extension of the Regulator’s role to include market regulation which has little or nothing to do with the quality of science.

Although the Report and the Regulator appear to be concerned with the quality (undefined) of evidence provided in court, there is little, or no evidence provided to support that assumption.  The major concerns appear to be financial and commercial.

In 2011, the Law Commission published a report entitled “Expert Evidence in Criminal Proceedings in England and Wales“, in which it argued for a which would require the expertise of any purported expert witness.   Perhaps it is time to consider the Law Commission’s 2011 recommendations for a statutory admissibility test for expert opinion evidence which deals with this on  a case by case basis rather than vest power in a single authority.

There is a single chapter in the Report which ostensibly focuses on the quality of scientific evidence; chapter 4.  Most of that chapter is devoted to highlighting the inadequacies of the current accreditation system overseen by UKAS.  There is nothing in that chapter, or anywhere in the Report, that reassures that regulatory compliance with the accreditation standard (currently ISO17025) will actually improve the quality of the science delivered to court.

The Report appears ignorant of the legal framework and the nature of science.

In terms of the legal framework, it has been written elsewhere that;

“… the procedure leading to trial is specifically designed to give the defendant the fullest opportunity to receive disclosure of the information in the possession of the Crown and, with the benefit of that disclosure, to investigate the evidence and, in particular, the forensic evidence. At the trial, the prosecutor acts as a “minister of justice”. Further, the trial itself, and resulting convictions, are subject to review by the Court of Appeal Criminal Division.

This thorough and layered procedure provides the general and main safeguard against wrongful convictions.[3]

This identifies the first and in our opinion the best opportunity to improve the quality of evidence against a defendant; full disclosure of evidence to enable the defence an opportunity to diligently and thoroughly test the evidence against them by examining the underpinning science and results.   If the court accepts the expert evidence as admissible then the normal adversarial process applies.

As regards the science; many people, including most scientists, would regard a standard as an objective measure such as how big, small, accurate or precise a result should be.  There is no part of the report which describes what a standard will look like, and there is no evidence that the results of testing will be made more accurate because the Regulator has statutory powers.  To create statutory powers to enforce some yet to be defined or widely agreed standard is not likely to solve whatever problem is perceived to exist. One major difficulty with the development of standards is the lack of fundamental research.  This has again been made known to a previous Parliamentary committee[4] and appears to be accepted, insofar as the need for more research, by the Report from the House of Lords.

In the United States, the term ‘general acceptance’ is used when discussing the status of some scientific matters in court.  There is no attempt to enforce conformity.  Science is not a democracy and indeed different experts may rationally and reasonably come to different conclusions about the same evidence.  We naturally fear that the subtext of regulation is conformity.  This is an anathema, antithetical to science and scientific progress.

 

Ironically, in a debate about expert evidence, neither the Select Committee nor the Regulator provide any concrete examples of current systemic failures causing an erroneous verdict.  Indeed, while the Regulator has appealed for statutory powers the history of the Regulator’s investigations does not indicate that they are likely to be the improvement perhaps envisaged by the Select Committee[5].  This, linked with the inadequacy of the accreditation process, implies that more consideration is needed to enable any statutory route to be effective and acceptable.

At the time of inception of the ‘forensic marketplace’, one of the undersigned wrote,

“The introduction of a Forensic Regulator is a positive step in the provision of quality assured forensic science to law enforcement; time will tell if the scope and practice go along the right road.”[6]

The introduction now suggested of statutory powers across the board is the wrong road and too broad a scope.

Accreditation and certification can provide some reassurance of the reliability of testing and opinion, but is no guarantee.  Neither is it the case that non-accredited or non-certificated organisations and experts are unreliable.  The largest purchasers of forensic science are the police.  The obvious solution to improve quality is to educate the police to create contracts where quality is built in to the contract specification.  The role of the Regulator is to assist the police in those specifications.  Whatever appears in court should be supported by scientific research which by its nature is simply the best that we can know at the moment.  We fear that regulation will be regarded as obviating the need for spending money where it will have the greatest effect in improving the quality of scientific evidence in court; more research and more rational Legal Aid.  Both of these appear to be supported by the House of Lords Select Committee, and are by the undersigned.

We urge rejection of any gift of statutory powers to the Forensic Science Regulator meantime.

[1] Forensic science and the criminal justice system: a blueprint for change. Science and Technology Select Committee, HL Paper 333 (2019) https://publications.parliament.uk/pa/ld201719/ldselect/ldsctech/333/33302.htm

[2] The suggestion has already been made to the Parliamentary Science & Technology Committee by one of the signatories; “Perhaps properly funding this essential research is the obvious, logical, and necessary step to prevent the feared decline of standards in forensic science.” https://publications.parliament.uk/pa/cm201011/cmselect/cmsctech/writev/forensic/m65.htm

[3] Kevin Nunn and The Chief Constable of the Suffolk Constabulary and The Crown Prosecution Service. Neutral Citation Number: [2012] EWHC 1186

[4] “It cannot be known whether any provider has met the scientific standard if there is no scientific research to measure the standard against,” https://publications.parliament.uk/pa/cm201011/cmselect/cmsctech/writev/forensic/m65.htm

[5] https://www.heraldscotland.com/news/14234863.forensic-report-in-gerbil-murder-case-branded-a-whitewash/

[6] https://publications.parliament.uk/pa/cm201011/cmselect/cmsctech/writev/forensic/m65.htm

 

Professor Allan Jamieson, Dr Scott Bader, Ms Sara Gomes; for and on behalf of The Forensic Institute, Glasgow.

*Jamieson and Bader are the editors of A Guide to DNA Profiling (Wiley, 2016)

 

 

 

 

 

 

 

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