Chapter 4: Ensuring trust in forensic science
74.For forensic science to contribute effectively to the criminal justice system the science must be trustworthy. Two key components of this are quality standards and training.
Accreditation
75.The United Kingdom Accreditation Service (UKAS) is the sole accreditation body for forensic services in England and Wales. It is responsible for overseeing the process of a forensic science provider applying for accreditation to ISO 17020 and ISO 17025 standards, the standards that apply to forensic science. UKAS is also responsible for ensuring that accredited providers continue to operate to the expected standards.
76.A number of witnesses criticised UKAS and the quality of its assessors. Randox Testing Services said that “UKAS lack experienced, active forensic practitioners to be used as Technical Assessors within some forensic disciplines … since July 2015 [there have been 11 site visits and Randox Testing Services] have not experienced a UKAS audit with a UKAS assessor with forensic toxicology practitioner experience of biological specimen drug testing.”84
77.Complaints about the quality of UKAS assessors were echoed by witnesses from police forces. Danyela Kellett, Forensic Services Manager at Lancashire Constabulary, told us that “the assessors often do not interpret the standard in the same way and accept methods in one force which are challenged in another.”85
78.Alongside UKAS, the Forensic Science Regulator also has responsibility for ensuring the quality of forensic science. They publish codes of practice and conduct for forensic practitioners.86 Although the code of conduct is short and high level, the code of practice is a lengthy document. Infra Tech Forensics told us that “the larger FS providers such as LGC or KFS may have Quality Assurance/Control departments whose sole purpose is to interpret and help with the implementation of these requirements”. However, the amount of information in the document “has grown to such a degree that forensic practitioners operating as micro companies or sole traders are overwhelmed by the administrative burden when trying to manage these requirements.”87
The place for accreditation: ISO 17020 and ISO 17025
79.ISO 1702088 and ISO 1702589 are international standards for accrediting the processes undertaken by a provider when analysing evidence. They do not confer accreditation on individuals working within an accredited organisation and, while they go some way to ensuring consistency in analytical processes, they cannot ensure the accuracy of every result of any given examination of forensic materials.
80.Danyela Kellett echoed other witnesses when she expressed doubts about whether ISO 17020 and ISO 17025 are appropriate. While agreeing with the principle of accreditation, she thought that these standards “are not set up specifically for forensic science” and consequently “some aspects of those standards are quite difficult to evidence within a forensic environment and … sometimes you feel that you are almost performing a box-ticking exercise by having to comply with certain areas that do not seem relevant.”90
Digital forensics
81.Opinions differ on the appropriateness of the accreditation regime for digital forensics. Lorraine Turner, Business Development and Technical Director at UKAS, stated her belief that ISO 17020 and 17025 are apt for digital forensics as long as they are correctly interpreted because they test variables such as whether “the organisation has in place a management system, defined policies and processes, competent staff, suitable equipment, suitable reporting mechanisms and appropriate methods.”91 Mark Stokes, Head of the Digital, Cyber and Communications Forensics Unit at the Metropolitan Police Service, agreed, adding that the “basic principles of ISO 17025 and 17020 are good and firm.”92
82.Other digital forensic practitioners disagreed. Garry England, a digital forensic scientist, said:
“This framework has been stubbornly applied, despite more suitable ISO standards being available (ISO 27037, 27041, 27042, 27044 & 27050). Indeed, ISO 27037 is entitled “Guidelines for identification, collection, acquisition, and preservation of digital evidence”. Such standards are uniquely suited to digital forensics. Whilst it is appreciated that these currently only hold the status of ‘guidelines’ it would seem a relatively simple matter for the FSR to mandate compliance in order to achieve accreditation.”93
Professor Sommer added that it is unwise to try to apply “the model that works for trace forensics” to “situations where it does not work”,94 such as digital forensics.
Effect on small and niche providers
83.Accreditation to ISO standards is not compulsory, but there is increasing pressure for work to be commissioned only from accredited providers. The Forensic Science Regulator would like ISO 17025 to be mandatory for all providers of forensic services.95
84.While many supported initiatives to raise quality standards and build trust in forensic science, witnesses told us about the prohibitive cost of obtaining accreditation and the likely effects of making it mandatory on small and niche providers.
85.Keith Borer Consultants explained that the accreditation process “requires that every scientific activity be individually assessed, irrespective of its complexity and similarity to other processes already within a workflow. This makes accreditation prohibitively expensive for any small organisation offering a wide range of scientific services.”96 Forensic Video Services Ltd told us that they are already aware of “some small businesses ceasing trading or changing the scope of their provision away from the legal sector on grounds of affordability and the onerous paperwork and documentation practices involved.”97
86.Infra Tech Forensics (Video) Ltd outlined the costs of obtaining accreditation:
“The March 2017 meeting of the Forensic Imagery Analysis Group at KFS in Coventry was attended by the FSR. A colleague stated that he had “set aside £14,000 for accreditation costs.” This figure was not refuted by the FSR. The continuation costs for re-accreditation in year 2 are estimated at half of the initial cost.”98
87.In addition, because of the diversity of forensic science disciplines, there are some practitioners who are called on to work on cases only once or twice a year. Dr Karl Harrison, a lecturer in Forensic Archaeology at the Cranfield Forensic Institute, Cranfield University, cautioned that “if their organisation or university is suddenly required to invest in the production of standard operating procedures that would lead them towards an ISO qualification, that will potentially freeze a lot of specialists out of the market.”99
88.John Welch, a forensic scientist, highlighted that the loss of small or niche providers due to compulsory accreditation was likely to have a greater adverse effect on defendants needing to commission forensic testing because small companies “are the main sources of forensic science for defendants in criminal cases. Compulsion will make it much more difficult for defendants to have prosecution forensic evidence checked and challenged.”100 This could lead to miscarriages of justice since, as Garry England explained, “the absence of these providers could lead to an inappropriately low level of probity being applied to evidence produced by law enforcement. The lack of probative challenge to this evidence has the potential to result in erroneous convictions.”101
89.While it is troubling that the defence may be adversely affected by mandatory accreditation, the Forensic Science Regulator explained:
“I have carefully considered whether there could or should be some form of exemption from compliance with the standards for small businesses … the impact of poor-quality forensic science on any particular case is not proportionate to the size of the company delivering it. Considering the users of forensic science, from police investigators to prosecutors, counsel and courts, should there be a lower expectation of quality when it is delivered by a small company? Surely not, nor from the perspective of a complainant or a suspect.”102
Dr Tully went on to say that, despite this, she was working with UKAS and the Chartered Society of Forensic Sciences to “determine whether the costs of achieving the same quality standards could be reduced for small businesses. This work is at pilot stage, and it remains to be seen what savings can be made.”103
90.The Forensic Science Regulator should work with UKAS to find a proportionate way to reduce costs of accreditation for niche and smaller private providers. Exemptions from accreditation should exist for providers using new or non-standard techniques which could not yet be accredited, but the court should be made aware of this.
91.We see a clear benefit in ensuring that most forensic science providers are accredited to the appropriate ISO standards. The Forensic Science Regulator should review the current regulation framework and make any necessary changes to ensure that it promotes good practice.
Accrediting individuals
92.While accreditation from UKAS may give a level of confidence in a forensic science provider, there is no accreditation scheme or certification for individual practitioners and expert witnesses. Some disciplines, particularly those that have a forensic science element but are primarily non-forensic science, have professional bodies which may accredit practitioners.104 However, Professor Tim Thompson, Professor of Applied Biological Anthropology at Teesside University said that even within these disciplines, “different professional bodies have different mechanisms by which they do that, so there is no consistency across the different disciplines.”105
93.The dangers of not accrediting individuals were explained by Forensic Video Services Ltd:
“If you can convince a judge that you are ‘expert’ in your field, your evidence may be admitted. This can result in unqualified experts offering flawed opinions, or in having a qualified expert undermined by an unqualified one because of their being given the opportunity to offer opposing opinion to the jury by the judge. This is exacerbated by the fact that a number of forensic working groups under the umbrella of the Chartered Society of Forensic Sciences undertake no scrutiny or vetting of their members’ qualifications before granting membership106 (membership of such a body can easily be misconstrued as expertise when read out to a jury).”107
94.The Serious Fraud Office argued that this was an issue that was likely to become more pressing as digital evidence became more ubiquitous in criminal trials. The “provenance and integrity of material obtained from digital devices is a key area … Expert evidence should therefore have some form of regulation or a mechanism by which agreed criteria or standards are adhered to.”108
95.Sir Brian Leveson agreed that it was important for courts to have confidence in the experts appearing before them. He explained that judges “issue judgments that specifically undermine the expertise that was said to have been correct” but that was then disproved through “rigorous forensic analysis.”109 However, the onus was on the expert, when giving evidence in future, “to say, “Well, actually, I was not believed on this area of expertise for this reason””.110 There is little evidence to show whether experts who have been criticised in the past admit to that fact when subsequently giving evidence before a different judge.
96.Accreditation for individuals is not straightforward. Forensic science relies not only on accurate and reproducible detection and analysis of relevant materials, but also on evaluative interpretation of those materials in a specific context. Dr David Schudel told us that it “is very difficult to accredit an opinion. You can have two people working at the same accredited lab using the same methods, and they can have a difference of opinion because it is based on individual education, training and experience as well as what information they have seen.”111
97.Dr Tully explained some of the practical difficulties of a system of individual accreditation. While she audited each forensic pathologist on the Register of Forensic Pathologists, which had led to improvements in standards, the scheme was “costly, both in terms of the annual audit and the costs of removing a practitioner from the Register. The approximate cost of removing a practitioner from the Register was an initial c. £500,000 tribunal, which could be followed by legal challenges.”112 Dr Tully thought that the “system works well for forensic pathology because the number of practitioners is low (there are currently c. 35 pathologists on the Register)”; she did not think it would be feasible “to scale up to thousands of forensic science practitioners”.113
98.While we are not recommending an accreditation process for individual practitioners of forensic science, an independent tribunal mechanism should be established within the Forensic Science Regulator with the power to prevent individuals from providing expert testimony in court where the individual has been found to have presented misleading or insufficiently evidenced opinion. This debarment should apply until the tribunal is satisfied that the individual has demonstrated their competence to resume giving expert testimony. The Regulator should also have powers to issue fines and improvement notices to individuals who do not deserve debarment and those individuals should have the right to appeal to the tribunal.
99.The Forensic Science Regulator should also maintain a register of forensic science practitioners who have been debarred from giving evidence in court.
Accreditation of police forces
100.The take up of accreditation is patchy across forensic science. While most large private providers are accredited to the ISO standards because they need to be able to win police tenders, many police forces have not been accredited “in the full range of disciplines within the timeframes set by the Forensic Science Regulator”.114
101.We heard a number of reasons for these missed deadlines. Danyela Kellett attributed it, at least in part, to the Forensic Science Regulator’s lack of mandatory powers, “because there has not been any compelling driver to get them, unlike for the providers who had to have accreditation to be able to enter the tendering process.”115
102.Carolyn Lovell explained that the timing of the accreditation was challenging because it occurred at the same time as “austerity measures” which “ led to a fewer staff numbers … Operational demand is up and as such we are placing both demands on the same staff at the same time.”116
103.Police budgets have been reduced over the last few years. The National Police Chiefs’ Council told us that “Chief Constables have carefully balanced and allocated scarce and reducing resources to the threats and risks causing the greatest harm in their communities, aligned to priorities set in local Police and Crime Plans.”117 In that context, accreditation for forensic processes is, perhaps unsurprisingly, not always accorded priority status.
104.Chief Constable James Vaughan explained that the lack of individual accreditation had been exacerbated by the siloed nature of policing in England and Wales. This meant that police forces had been trying to gain accreditation in “43 different ways. When you have a small capability and you try to do it disparately, you make slow progress”.118 One of the aims of the Transforming Forensics programme is to help forces to meet all the requirements for accreditation by 2020. However, this will be effective only if the Transforming Forensics programme is able to achieve buy-in from all 43 polices forces.
Forensic Science Regulator
105.The post of Forensic Science Regulator was created in 2008. The role is sponsored by the Home Office, but the regulator is an independent public appointee who works 3.75 days per week (0.75FTE). The regulator is assisted by three civil servants with scientific training. The Home Office lists the regulator’s responsibilities as:
- identifying the requirement for new or improved quality standards;
- leading on the development of new standards; and
- where necessary, providing advice and guidance so that providers of forensic science services can demonstrate compliance with common standards.119
Despite calls for the regulator to be given statutory powers and assurances from the Government since 2013 that they would be, the regulator still has no mandatory powers.
106.Almost all our witnesses were clear that the Forensic Science Regulator should be given statutory powers in order to be effective in raising standards. We heard a number of suggestions for powers they should be given, including:
- “powers for the Secretary of State to create standards through secondary legislation to speed things up”120
- “powers to advise the Legal Aid Agency to not authorise a company or practitioner if under investigation for irregularities”121
- powers to “accredit or certify courses of professional development for members or stakeholders of the criminal justice system”122
- “power to close a forensic science delivery organisation for failing to meet the accepted standards”123
- “power to rescind accreditation in appropriate circumstances”124
- “power to inspect, at no notice, a previously accredited organisation”125
- power “to actively mediate in disputes in relation to accreditation status.”126
Many agreed that Chris Green MP’s private member’s bill127 was a good start. It would allow the regulator to “investigate and take enforcement action in relation to forensic science activities carried on in a way that creates a substantial risk of adversely affecting any investigation, or impeding or prejudicing the course of justice in any proceedings”.128
107.The Chartered Society of Forensic Science told us that the lack of statutory powers “sends out completely the wrong message regarding important matters concerning forensic science and practice, particularly when regulators in other areas in Government do hold such powers.”129
108.It is hard to understand why, despite Government assurances since 2012 that statutory powers would be forthcoming,130 the Forensic Science Regulator still lacks powers they need. The Rt Hon Nick Hurd told us that “the powers of the regulator need to be put on a statutory basis. I have committed to do that at the Dispatch Box. In practical terms, our mechanism for that is a private member’s bill. We have a private member—Chris Green—who is keen to take it forward.”131 However, it is clear that a private member’s bill which still has not received its second reading in the House of Commons will not be passed before the end of this session. The minister said that “if that route feels hopeless, we will resort to primary legislation and government business”132.
109.Since 2012, the Government has given assurances that statutory powers needed by the regulator would be forthcoming but has taken no action. We consider that seven years is an embarrassing time to delay legislation, particularly as time has been found for several other Home Office Bills. The Forensic Science industry is in trouble; such action is now urgent. The Government should introduce statutory powers for the Forensic Science Regulator. Private members’ bills cannot be relied on to do this. The Government should demonstrate its commitment to this issue by introducing a Government bill giving the Forensic Science Regulator the following properly funded statutory powers:
- The power to issue improvement notices and fines (see para 98).
- The power to prevent individuals from providing expert testimony to courts with a corresponding appeals process (see para 98).
- The power to investigate a forensic science provider and take enforcement action.
- The power to rescind a forensic science provider’s accreditation.
- The power to inspect, without notice, accredited forensic science providers.
Skills and training
110.It is important not only to train the next generation of forensic scientists but also to provide ongoing development opportunities for practitioners.
111.Routes into forensic science are varied, with no clearly established paths to a career as a forensic science practitioner. Ongoing training for forensic scientists is also varied, with police forces and private providers having to organise training and development of their staff.
112.David Tucker, Faculty Lead for Crime and Criminal Justice at the College of Policing, told us that the College of Policing had ceased delivering training in forensic science because “many forces were not taking up our forensic training delivery. Those that were found that our products were insufficiently targeted at their particular need.”133 However, this has left a void in training provision for in-house forensic scientists. It was the consistent view of in-house (police) practitioners who gave evidence that there “should be national oversight for training, probably by the College of Policing or the Chartered Society for Forensic Sciences. Forensic Scientists from all disciplines and for all organisations should be required to have consistent and accredited training and there should be a register of authorised practitioners.”134
113.At a time when police budgets are constrained it is neither practical nor realistic to expect each police force to invest adequately in forensic science training.135 The same is true for private forensic science providers, many of which, as outlined in Chapter 3, are operating at the limit of profitability.
114.The situation cannot continue. We heard worrying evidence about the expertise of forensic scientists. The Leverhulme Research Centre for Forensic Science told us that they did not believe that:
“forensic scientists in general are sufficiently well trained in basic numeracy, the foundations of statistical and probabilistic analysis and in how to use data to support or refute a variety of competing propositions with the probable exception of DNA evidence. Neither are they well trained in how to undertake research or in some instances, differentiate good quality scientific research from poor quality work.”
They identified a further gap in practitioners’ training: “Forensic scientists are also … not particularly well trained in the legal framework and in the expectations that the courts have in terms of the requirements of being expert witness”.136
115.This lack of training, coupled with the loss of expertise in some forensic science disciplines (see paras 63–65 in Chapter 3), could further destabilise the provision of forensic science services in England and Wales.
116.The Forensic Science Board, with input from the College of Policing and the Chartered Society of Forensic Sciences, should develop a strategy for the ongoing training of all forensic science practitioners, with a particular focus on maintaining competence in niche disciplines and providing expert evidence in a legal setting.
85 Written evidence from Danyela Kellett (FRS0035). See also written evidence from Mrs Angela Forshaw (FRS0046).
86 Forensic Science Regulator, Codes of Practice and Conduct for forensic science providers and practitioners in the Criminal Justice System (October 2017): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651966/100_-_2017_10_09_-_The_Codes_of_Practice_and_Conduct_-_Issue_4_final_web_web_pdf__2_.pdf [accessed 12 February 2019]
88 ISO/IEC 17020:2012, ‘Conformity assessment—Requirements for the operation of various types of bodies performing inspection’: https://www.iso.org/obp/ui/#iso:std:iso-iec:17020:ed-2:v1:en [accessed 25 March 2019]
89 ISO/IEC 17025:2017, ‘General Requirements for the Competence of Testing and Calibration Laboratories’: https://www.iso.org/obp/ui/#iso:std:iso-iec:17025:ed-3:v1:en [accessed 25 March 2019]
103 Ibid.
104 See, for instance, written evidence from Forensic Geoscience Group (FRS0012), Institute of Traffic Accident Investigators (FRS0023), and Dr Anna Williams and Professor John Cassella (FRS0024).
106 Dr Anya Hunt, the Chief Executive of the Chartered Society of Forensic Science confirmed that this was the case, though the Society hoped to provide accreditation in the longer term.
110 Ibid.
113 Ibid.
119 Forensic Science Regulator, ‘About us’: https://www.gov.uk/government/organisations/forensic-science-regulator/about [accessed 5 February 2019]
123 Written evidence from EFS (FRS0063). See also written evidence from Metropolitan Police Service (MPS) (FRS0064) and Mr Garry England (FRS0076).
125 Ibid.
126 Ibid.
127 Forensic Science Regulator Bill [Bill 180 (2017–19)]
128 Explanatory Notes to the Forensic Science Regulator Bill [Bill 180 (2017–19)-EN], p 2
132 Ibid.