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  Don't create a surrogate for scrutiny

The UK Register of Expert Witnesses response to the Forensic Science Regulator draws together contributions from 319 expert witnesses listed in the Register.

On 15 January 2009 the Forensic Science Regulator, Andrew Rennison, published a consultation paper looking at the future of forensic practitioner registration in the criminal justice system (CJS). It proposes sweeping rationalisation of the current arrangements. In place of the hodge-podge of current systems, which are based on various criteria testing different aspects of forensic practice assessed against a multitude of standards, the Regulator is recommending a single accreditation system operated by the UK Accreditation Service (UKAS) against a Quality Standard for forensic science based on internationally recognised ISO standards.

The following is the Executive Summary from the response of the UK Register of Expert Witnesses to the Consultation Paper. It draws together contributions from 319 expert witnesses listed in the Register.

The five principles of better regulation issued by the Better Regulation Executive (BRE) teach us that good regulation is transparent, accountable, proportionate and consistent, and it is targeted according to need.

We begin with the observation that no one has provided evidence for there being a general problem with the quality of forensic science evidence in the Criminal Justice System (CJS) in England and Wales. So, in considering the changes to the regulatory framework brought forward by the Regulator, we have borne in mind the need for them to be targeted and proportionate.

Setting a Quality Standard for forensic science that encompasses the providers, practitioners and, crucially, their analytical methods is far better than the system offered previously by the CRFP. We think it is entirely proper for the Regulator to set the Quality Standard and we agree that using the Skills for Justice National Occupational Standard (NOS) system for specific analytical techniques is appropriate. Requiring individuals to demonstrate compliance with any relevant NOS gives the right level of oversight.

However, the Regulator must ensure that the Quality Standard and NOS are not permitted to stifle innovation. Science will always move faster than the quality standards, and this must be recognised in the Regulator’s quality framework.

Where we disagree with the Regulator’s proposals is on the question of accreditation. The UK Register of Expert Witnesses has never believed that it is necessary or meaningful to accredit individuals as expert witnesses. What is susceptible to meaningful accreditation is an individual’s expertise, and that is best done by his own professional regulatory body. A forensic scientist who does not have a professional regulatory body could be encouraged to join the Forensic Science Society.

Accordingly, we welcome the Regulator moving the focus of regulation away from the CRFP model of accrediting individuals. But we believe that the Regulator’s proposal to impose UKAS accreditation against his Quality Standard on all providers is untargeted, disproportionate and potentially anti-competitive.

Accreditation may seem to offer users of forensic science services an enhanced level of confidence that all evidence, regardless of the supplier, is quality assured and directly comparable. However, the truth is that accreditation can never assure quality because quality comes from every individual’s ongoing rigorous and error-free implementation of proper procedures; a priori accreditation can only give us some measure of past performance.

On the cost front, large companies and service providers who are already embroiled in the processes and expenses associated with other ISO-based quality systems may not find it too onerous to achieve UKAS accreditation against the Regulator’s Quality Standard. But this is not so for smaller forensic science providers and individuals. A compulsory system of UKAS accreditation for all would incur disproportionately large costs on the smaller forensic science providers and individuals. Indeed, many may have to stop offering their services to the courts. We should remember that many of the failures of forensic science have arisen in the large forensic laboratories. If the Regulator wants to encourage a thriving and competitive sector, he will not wish to concentrate the skill base in a small number of large providers.

The Regulator is correct to say that quality comes from building a competency culture. So, he must take care to avoid accreditation becoming a surrogate for scrutiny. It is far better for the court to determine if the Regulator’s Quality Standards have been followed on a case-by-case basis than for accreditation of a provider and its employees to become an easy proxy for the scrutiny that should be applied properly in every case.

The Regulator’s one-size-fits-all approach to UKAS accreditation against his Quality Standard seems to us to be both untargeted and disproportionate. This is especially so given both the lack of evidence of there being a general problem with the quality of forensic science evidence and the inability of accreditation to deliver quality assurance.

Turning back to the BRE principles, the very best regulation of the quality of forensic science evidence would offer transparency, accountability, proportionality and consistency, and would be targeted according to need. We already have such a system in place – it is the detailed scrutiny that can be brought to bear by the lawyers, the judge and the other expert witnesses upon the evidence adduced in a case within the context of that case.

Of course, even with this optimal system in place problems with forensic science in the criminal justice system have arisen in the past. But these have usually stemmed from a systemic failure of the court properly to handle conflicting or novel scientific evidence, due in part to inadequate court procedures. We believe that the ongoing work at the Law Commission is the best way to tackle this systemic weakness.

You can read the full response from the Register to the Regulator in the library.



Issue 53
April 2009

Don't create a surrogate for scrutiny
CRFP - RIP... this time it's official!
Admitting expert evidence in criminal trials

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