Gary Pugh Forensic Science Regulator — Written evidence (NTL0036)

Declaration

1. I am making this submission to the Houses of Lords Justice and Home Affairs Committee inquiry “new technologies and application of the law” in the capacity of Forensic Science Regulator. 

Evidence

2. The scope of this inquiry is very broad as are the questions posed in the call for evidence and is likely that only some of the new technologies that are of interest to the inquiry would be used in the future delivery of forensic science services. However, I would like to draw to the attention of the Committee the existing structures for regulating the use of forensic science and validation of new technologies/techniques. I will also comment on the provisions of the Forensic Science Regulator Act 2021.

3. Forensic science is a critical and important part of the investigation of crime and the administration of justice not only to identify offenders and provide expert evidence to the courts but it can be one of the strongest safeguards against false allegation and wrongful conviction. Forensic science examinations carry substantial risks and the consequences of a quality failure can be profound particularly where there is a system rather than an individual failure. The former may lead to the review of hundreds or even thousands of results generated by a flawed technique or method. The purpose of forensic science regulation is to;
• minimise the risk of a quality failure
• increase the chance of any failure being detected before it has an adverse effect
• and ensure that accurate and reliable forensic evidence is used in the investigation of crime and criminal trials.

4. The new technologies highlighted in the call for evidence along with biosensors that can detect trace amounts of DNA, technologies that allow for forensic results to be generated in minutes rather than days or weeks so called “real-time forensic”, wider use of biometrics through more modalities with expanded international search and data exchange and expert systems that allow complex forensic evidence to be interpreted more effectively all have potential applications in forensic science. This could lead to transformational change in the operating model for forensic science where results are generated within minutes of entering a crime scene or examining a victim and the evidential value the forensic results is determined by a computer system. This will require a change in the regulatory model for forensic science but the underlying principles will remain the same.

5. The current model for regulation of forensic science in England and Wales is based on each forensic science organisation operating an effective quality management system that meets the requirements of relevant standards. This provides the necessary control of processes and minimise the risk of quality failure. The key elements of an effective quality management system are;

• validation of techniques with a focus on understanding and managing the risk of error.
• defining, demonstrating and testing the competence of practitioners.
• having documented and controlled procedures, audit to ensure they are effective and being followed, complemented by processes that encourage and support continuous improvement.

6. The establishment of an effective quality management system provides the basis for senior leaders to understand and manage the risk of a quality failure. Quality management systems in forensic organisations in the UK are assessed by the United Kingdom Accreditation Service (UKAS) against international standards and guidance, primarily BS EN ISO/IEC 17025 and BS EN ISO/IEC 17020 (as explained in the International Laboratory Accreditation Co-operation document G19:08/2014). Accreditation provides an independent impartial confirmation of technical competence but it is not an end in itself. It is the leadership and active management of risk using the quality management system that will ensure the risk of quality failure in forensic science is minimised and public confidence in forensic science is maintained.

7. A critical and mandatory element of regulation is a validation study. Validation involves demonstrating that a method used for any type of analysis is fit for the specific purpose intended, i.e. the results can be relied on. It is the expectation that all scientific methods routinely employed within the criminal justice system will be validated prior to their use on live casework. The Forensic Science Regulator publishes guidance on validation, (see Validation Guidance (publishing.service.gov.uk). For example, a new algorithm or tool for matching forensic information such as fingerprints, faces or DNA profiles would be expected to include;

• the use ground truth data of the material to be matched and the validation studies would be of a scale and content that reflected the size of the application.
• the validation studies would establish error rates for false positives and false negative results.
• the validation studies would involve testing the algorithm at the limits of its capability.

8. The role of Forensic Science Regulator was established in 2007 on a non-statutory basis to set standards for forensic science and ensure compliance with the standards. This was achieved through the establishment of the Codes of Practice and Conduct, appendices covering different sectors of forensic science and general guidance documents. In 2011 the House of Commons Science and Technology Committee called for the Forensic Science Regulator to be given statutory powers, it reinforced this in two further reports and the House of Lords Science and Technology Committee also called for statutory powers. A Private Members Bill to establish statutory powers for the Forensic Science Regulator was laid before Parliament in 2019 and following amendment the Forensic Science Regulator Act 2021 received Royal Assent on 29 April 2021. The provisions of the Act are yet to be commenced.

9. The Forensic Science Regulator Act 2021 requires the Forensic Science Regulator to prepare and publish a code of practice about the carrying on of forensic science activities in England and Wales. The statutory code will build on and incorporates much of the non-statutory Codes and appendices.

10. The statutory code is based on the same regulatory model for forensic science in England and Wales in that it requires each forensic science organisation to operate an effective quality management system and achieve accreditation to relevant standards. There are additions in the statutory code to cover the provisions set out in the Forensic Science Regulator Act 2021 including investigations carried out by the Forensic Science Regulator, issuing of Compliance Notices, issuing Completion Certificates, Appeals and other functions of the Forensic Science Regulator.

11. Section 5 of the Forensic Science Regulator Act 2021 makes provisions for the Forensic Science Regulator to intervene where there is reason to believe that a person may be carrying on a forensic science activity to which the statutory code applies in a way that creates a substantial risk of;

(a) adversely affecting any investigation, or

(b) impeding or prejudicing the course of justice in any proceedings

12. The Forensic Science Regulator Act 2021 makes further provision for the Regulator to require persons to provide copies of documents and other information in the person’s possession or control as part of an investigation.

13. The role of forensic science regulation in protecting the integrity of the Criminal Justice System must be seen as one part of a framework of controls. It seeks to ensure the scientific evidence provided to the courts is reliable. The trial process, through the requirements for disclosure, the obligations placed on expert witnesses, the operation of Part 19 of the Criminal Procedure Rules (as expanded upon by the Criminal Practice Directions) and the adversarial process ensure the evidence is properly scrutinised.
14. The use of new technologies in the application of the law could lead to transformational change in the delivery of forensic science requiring a change in the regulatory model such that there is greater emphasis on the technical applications to minimise the risk of quality failure rather than organisations. It is critical that the requirements of regulation and other wider safeguards are built into the design of new technologies to minimise the risk of error, ensure that accurate and reliable forensic evidence is put before the courts and public confidence in forensic science is maintained. 

4 September 2021

3