Criminal burden shifting
Is Streamlined Forensic Reporting increasing the risk of inadequate forensic evidence being presented to the court?
Streamlined Forensic Reporting (SFR) is a way of delivering proportional forensic evidence to the court. It is a two-stage process with the purpose of delivering forensic evidence proportionate to the needs of the ‘real issues’ in the case. With SFR, a short report is provided giving the initial key findings. This report is sufficient for charging purposes and early court case management hearings. A Streamlined Forensic Report incorporates advice to the court and defence stating that SFR presents forensic evidence in its shortest and clearest way and includes a reminder that each party must actively assist the court in fulfilling its duty under the Criminal Procedure Rules (c.f. CrimPR 3.2 and 3.3) in the early identification of the real case issues. The rationale is to reduce the need for full forensic evidence to be produced addressing issues that are not in dispute. Through the case management process, any areas of dispute are identified and, only where necessary, a second-stage and more detailed forensic report can be requested and produced.
When a defence team receives a Streamlined Forensic Report, it may be accompanied by a statement along the lines of:
SFRs assist courts to fulfil their duty, to further the overriding objective of the CrimPRs, by ensuring that evidence is presented in the shortest and clearest way and by facilitating the early identification of the real issues. (CrimPR 3.2). Each party must actively assist the court in fulfilling its duty (CrimPR 3.3).
The prosecution propose to rely on the forensic evidence contained in this SFR and if there is a trial,
to adduce it by way of a s10 CJA 1967 admission to the general effect that the exhibit/s listed were
forensically examined and the examination produced the result/s described. Therefore should there
be a real issue in relation to the forensic evidence below, such that the admission cannot be made,
the prosecution ask that the defence identify the issue at the earliest possible stage in proceedings. In
the absence of such notification the prosecution will proceed as if the s10 admission will be made.
The prosecution will not ordinarily undertake further forensic analysis unless and until the exact issue
that such work needs to address has been identified. And unless, in light of that issue, it is
appropriate that the next stage of analysis should be undertaken by a prosecution rather than a
defence expert. If appropriate a direction under CrimPR 3.5(2)(h) as to the order in which the expert
issues should be determined may be sought.
So what’s the problem?
SFR has been around for a few years now, but has seemed to be being more heavily promoted recently. The aims of SFR are laudable enough. Indeed, the UK Register of Expert Witnesses has long supported the idea of early involvement of expert witnesses and of ‘staged reporting’, and SFR is one type of staged reporting. If it saves time and cost and so delivers justice more quickly and cheaply, then that’s great. But to what extent is the scope of the SFR going to be limited to only those matters the police see as relevant? Will they ignore (by design or otherwise) evidence that might rebut the police’s expert’s opinion? And let’s not forget, the defence expert is, these days, often faced with significant barriers to access forensic material. How often is it the case that only after a defence expert has undertaken a full analysis (as opposed to a streamlined one) of the forensic material that the flaws in the prosecution’s case are identified?
While SFR may save time and money, if the defence team is now so constrained by other changes in the criminal justice system so as to be unable to offer the necessary checks and balances, SFR may result in the forensic evidence presented to the court being inadequate. Obviously that would be a false economy.