Forensic Science Strategy Contents

4Standards and accreditation

Accreditation

45.Quality standards in forensic science are typically achieved through accreditation to the international standard ISO 17025; general requirements for the competence of testing and calibration laboratories. This standard is intended to ensure organisational competence, individual competence, validity of methods and impartiality within a forensics laboratory.

46.Our predecessor Committee noted in its 2011 report that all forensic service laboratories providing services for the police were required to be accredited to this standard by the Home Office’s procurement strategy, but that police in-house forensic services were not subject to the same requirement (paragraph 47). The Committee had “serious concerns about the potential transfer of the [Forensic Science Service’s] work to non-accredited police laboratories [ … ] [which] would pose significant and unacceptable risks to criminal justice”.93 In its response to their report, the Government confirmed that FSS work transferred to private forensic service providers would only be transferred to ISO 17025 accredited companies.94 The issue of non-accredited work undertaken by police forces themselves remained a point of concern for the Committee, however, as it set out in its subsequent 2013 report: “There is no legitimate reason for police laboratories to conduct forensic science in the absence of accreditation.”95

47.The Forensic Strategy noted the current situation:

All police forces are either accredited for fingerprints and DNA recovery, working towards accreditation, or share facilities with a force that already has accreditation. However, more needs to be done to ensure appropriate compliance with quality standards to maintain public confidence and reduce the potential for miscarriages of justice.96

The Forensic Science Regulator has set out a number of deadlines for accreditation in Codes of Practice and Conduct, including for digital forensics (October 2017), fingerprint comparison (October 2018) and crime scene examination (October 2020).97 The Home Office provided further information for us on other deadlines for other disciplines and the number of police forces currently accredited in particular work areas.98 The aim, as the Government put it was “to provide parity in the forensic market-place, which would involve police forces being required “to implement the same quality standards as those demanded from commercial providers”.99

48.The Regulator, Dr Tully, explained to us how getting accreditation would be a challenge:

Achieving the deadlines that I set is a huge challenge, particularly the digital forensics challenge. [ … ] It is a tremendous challenge to get everybody through in time. [ … ] Accreditation is only the final step; it is only the external validation of the fact that, yes, you are doing things to the correct standard. You have to put all the work in first of all, to get to the right standard.100

Chief Constable Debbie Simpson agreed that “it will be a challenge”.101 Tom Nelson of Scottish Police Authority noted that accreditation had increased costs in Scotland, and emphasised how the process in England and Wales could prompt police forces to consider which services they retain in-house:

There is no doubt that it will increase the cost. For laboratories like ourselves, who are fully accredited, it has increased our costs significantly, so there is a cost to accreditation. [ … ] As police forces look to see whether they want to enter the in-house market, they need to weigh up those costs and see whether it is beneficial to do the work in-house to the same standard as the external providers.102

49.Our predecessor Committee was also concerned about the lack of any requirement for accreditation of forensic evidence presented in court on behalf of the Defence. It concluded that “forensic science services conducted for the Defence should be subject to the same level of quality control as those for the prosecution. The Government should support the Forensic Science Regulator’s efforts to extend the scope of regulation to Defence experts.”103 In our current inquiry, the Regulator told us that she was in the process of developing an accreditation standard for the interpretation of forensic evidence in conjunction with the judiciary:

The standard will set out the minimum standards for how you go about interpretation and will attempt to bridge the gap between how scientists see evaluation of evidence and how the courts have sometimes seem evaluation of evidence.104

50.This could complement a separate initiative by the Royal Society (in collaboration with the Lord Chief Justice and the Royal Society of Edinburgh), announced in April 2016, to develop a series of ‘primers’ on the use of scientific evidence in the courtroom, beginning with DNA analysis.105 The primers will be peer reviewed by practitioners, including forensic scientists and the judiciary, as well as the public.106 Dr Julie Maxton from the Royal Society explained that the primers would be “short statements, in plain English [ … ] [which] will explain how far the science goes at any given time and what the limitations of the science are”.107 She did not believed that the existence of the primers would necessarily reduce the need for expert witnesses, but “it might limit the field over which the expert witnesses disagree”.108

Bias

51.There has been a long-running debate about whether the police undertaking at least some of its own forensic work could be unfairly disadvantageous to the Defence, and whether accreditation for police in-house services would mitigate any such bias.

52.Our predecessor Committee’s 2011 report on the Forensic Science Service concluded that there were risks to impartiality of forensic evidence when it was produced by non-accredited police laboratories:

A nebulous fear or perception of impartiality is insufficient reason to condemn police in-sourcing of forensics, although the perception of impartiality is crucial to the courts and public confidence in the criminal justice system. However, given that so few police forensic laboratories have been accredited to ISO 17025, a standard that demands a level of impartiality, we must express concerns about the risks to impartiality of forensic evidence produced by non-accredited police laboratories.109

53.In our current inquiry, many smaller private sector forensic service providers saw a need to separate policing from the management and delivery of forensic science, to help ensure impartiality.110 The Forensic Science Regulator, on the other hand, told us that she had no inherent objection to forensic work being undertaken within police forces but that accreditation would address any impartiality:

It is extremely important that forensic scientists are allowed the independence to come to their conclusions without being unduly influenced by investigators, but that can happen even within a police environment as long as the right organisational, procedural and cultural safeguards are in place. [ … ] One of the things that accreditation brings is that the accreditation to the international standards that we use includes an assessment of impartiality.111

54.Dr Tully nevertheless saw “a major risk around unconscious bias” arising from decisions about what evidence is collected at the crime scene and what forensic tests are commissioned.112 Such ‘cognitive bias’,113 as the 2011 public inquiry on the 1999 Scottish McKie case found,114 can arise from information about the case being given to the forensic scientist, or knowledge about another scientist’s conclusion on the same examination. A number of techniques can be used to mitigate the effects of cognitive bias, including effective case management strategies (limiting who has access to what information), blind verification (making sure a second examiner does not know the outcomes of the first test) as well as much more sophisticated methodology and examination procedures.115 In 2015, the Forensic Science Regulator issued guidance on cognitive bias and how to manage them.116 In addition, judges in the High Court, Court of Appeal and the Supreme Court have received training on cognitive bias and how it may affect forensic results.

55.Accreditation of all forensic laboratories and scientists to the industry’s standards is essential, including police in-house services. We welcome the important work being done by the Regulator in negotiating accreditation deadlines and in developing further standards, and by the Royal Society and others in developing ‘primers’ to assist courts in dealing with forensic evidence effectively. Such standard-setting and accreditation should also help dispel any concerns about ‘cognitive bias’ in the police commissioning and undertaking forensic examinations. The Government must be clear that, while some police forces may face particular challenges in securing accreditation, there must be no failure to meet the Regulator’s deadlines.

Statutory powers for the Regulator

56.The effectiveness of standards and guidance, and of the accreditation of those adhering to them, will depend on how well they can be enforced. The Criminal Cases Review Commission emphasised that “all stages of the criminal investigation and trial processes should be based on common quality standards underpinned by statutory requirements”.117 The Regulator highlighted the difficulty of moving towards accreditation when “there is not a clear ‘What if I don’t?’ ”118 Dr Anya Hunt of the Chartered Society of Forensic Sciences told us “until that stick is in place, it is very difficult to enforce that.”119

57.Our predecessor Committee’s 2011 report concluded that “it is time for the Forensic Science Regulator to have statutory powers to enforce compliance with the quality standards and Codes of Conduct that [the then Regulator] has developed through what appears to be a robust process”, and recommended that the Government “bring forward proposals to provide the [Regulator] with statutory powers immediately”.120

58.The Committee’s July 2013 follow-up report reiterated that recommendation; specifically that the Government “decide on a statutory role by March 2014”.121 In its response in November 2013, the Government announced a consultation:122

on proposals to put the role of the Regulator, and the scope of regulation, on a statutory footing, and to make adherence to the quality standards set by the Regulator mandatory for all providers, including those supplying the defence. We expect to decide on the outcome of that consultation following the appointment of the next Regulator in early 2014.123

59.It was not until July 2015, however, that the Government published an analysis of the response to the consultation, without any Government opinion, stating simply that “the way forward will be published alongside the [Forensic Science] Strategy”.124 When the Strategy was published in March 2016, it contained a commitment to granting the Regulator statutory powers by the end of this Parliament:

We will develop proposals to give the Forensic Science Regulator statutory powers, put the current remit and the associated Codes of Practice on a statutory basis and enable the Forensic Science Regulator to investigate non-compliance where necessary.125

60.The Regulator, Dr Tully, believed that “it will not be possible to ensure full compliance with the standards without statutory powers”.126 She told us that she was “disappointed that the timescale for that is not specified earlier than the end of the Parliament”.127 She highlighted her doubts that, in the meantime, the accreditation deadlines falling due over the next few years (paragraph 46) would be universally met:

[For police forces,] it is a tremendous challenge to get everybody through in time. I am sure that some will not make it [ … ] I am also concerned about the small commercial providers, particularly sole traders and very small SMEs, who do not appear to be making the progress that I would want to see.128

Chief Constable Debbie Simpson thought that giving the Regulator statutory powers was “the only way to ensure compliance and to ensure that standards are achieved”.129

61.The Home Office told us that they were waiting for an appropriate legislative vehicle to provide the statutory powers. The then minister, Mike Penning MP, wrote in July to tell us that “we were unable to include proposals in the Policing and Crime Bill, as priority had to be given to key measures to further reform policing, and enable important changes to the governance of fire and rescue services. [ … ] Officials are currently exploring options for inclusion of these measures during the second [Parliamentary] Session.”130

62.Mike Penning also told us in July 2016 that, despite there having been a consultation in 2013, there would be a consultation “on the exact powers”.131 His recent successor, Brandon Lewis, informed us in September that this latest planned consultation “will not involve a repeat of the public consultation carried out in 2013/14, but an informal consultation and engagement process with police forces and private sector suppliers as well as with partners from across the [criminal justice system] to ensure that the proposals are both sensible and proportionate”.132

63.Statutory powers for the Regulator are essential, to ensure that she has sufficient levers to ensure compliance with quality standards by all forensics service providers. We are left with serious doubts about the Government’s commitment to deliver this, however, because nearly three years have been allowed to elapse since the 2013 consultation on such powers, only for it now to initiate a further internal consultation, and because there is still no identified legislative vehicle. The Government must without further delay, and certainly before the end of the current 2016–17 Session, bring forward the legislation necessary to give the Forensics Regulator the statutory powers needed to ensure accreditation and standards compliance.

93 Science and Technology Committee, The Forensic Science Service, Seventh Report, Session 2010–12, HC 855

94 Home Office, Government response to S&T Committee: Forensic Science Service, Cm 8215 (October 2011)

95 Science and Technology Committee, Forensic science, Second Report, Session 2013–14, HC 610

96 Forensic Science Strategy, Cm 9217, para 17

97 Forensic Science Regulator, Codes of Practice and Conduct for forensic science providers and practitioners in the Criminal Justice System (Issue 3: February 2016). See also Q3.

98 Home office (FST0033)

99 Ibid.

100 Q4

101 Q66

102 Q72

103 Science and Technology Committee, Forensic science, Second Report, Session 2013–14, HC 610

104 Q26

105 Royal Society, ‘National academies and the law collaborate to provide better understanding of science to the courts’, announcement (11 April 2016)

106 Q107

107 Q105

108 Q110

109 Science and Technology Committee, The Forensic Science Service, Seventh Report, Session 2010–12, HC 855

110 For example Linked Forensic consultants Ltd (FST003) and (FST028), Angus Marshall (FST007), ArroGen Forensics Ltd (FST010), Principal Forensic Services Ltd (FST022), Forensic Access (FST026)

111 Q29

112 ibid

113 POST, Unintentional Bias in Forensic Investigation, POST Brief 15 (October 2015)

114 Scottish Government, The Fingerprint Inquiry Report (December 2011)

115 POST, Unintentional Bias in Forensic Investigation, POST Brief 15 (October 2015)

116 Forensic Science Regulator, Guidance: Cognitive Bias Effects Relevant to Forensic Science Examinations (2015)

117 Criminal Cases Review Commission (FST006)

118 Q12

119 Q13

120 Science and Technology Committee, The Forensic Science Service, Seventh Report, Session 2010–12, HC 855

121 Science and Technology Committee, Forensic science, Second Report, Session 2013–14, HC 610

122 Home Office, Consultation on new statutory powers for the forensic science regulator (November 2013)