Vera Baird

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Commissioner’s Response to the Forensic Science Regulation Consultation

21st November 2013

OFFICE OF THE POLICE AND CRIME COMMISSIONER FOR NORTHUMBRIA

Home Office consultation: New statutory powers for the forensic science regulator.

Response to the consultation from the Office of the Police and Crime Commissioner for Northumbria

 

1 Background – Current role of the Forensic Science Regulator

1.1 The Forensic Science Regulator ensures that the provision of forensic science services across the criminal justice system is subject to an appropriate regime of quality standards. Responsibilities include:

  • Identifying the requirement for new and improved quality standards in the provision of forensic science services;
  • Requiring, where appropriate, the accreditation of those supplying forensic science services to the police, including in-house police services;
  • Determining procedures for validating and approving new technologies and applications in the field of forensic science;
  • Developing standards that apply to national forensic databases, leading on the development of new standards where necessary;
  • Providing advice and guidance to ministers, criminal justice system organisations and service providers on issues related to the quality of forensic services;
  • Ensuring that satisfactory arrangements exist to provide assurance and monitoring of the standards, including the management of complaints or referrals about standards of forensic science;
  • International developments relevant to forensic science quality standards.

1.2 Although sponsored by the Home Office, the Regulator is a public appointee and operates independently of the Home Office, on behalf of the criminal justice system as a whole. This independence allows the Regulator to make unbiased recommendations and decisions.

1.3 The Regulator is advised by the Forensic Science Advisory Council and a number of specialist sub groups. A number of these groups are ad-hoc and some, listed below are standing. All are made up of representatives from the police, forensic service providers, criminal justice system and professional and scientific experts:

  • Contamination;
  • Fingerprint quality;
  • Digital forensics;
  • DNA analysis;
  • Forensic pathology;
  • Quality standards.
  1. Current Regulation

2.1 NDNAD Accreditation – Any forensic provider processing material for loading to the National DNA Database (NDNAD) must be accredited to ISO 17025, the internationally accepted laboratory standard.

2.2 EU Framework – The EU Framework decision (Council framework Decision 2009/905/JHA of 30 November 2009 on Accreditation of forensic service providers carrying out laboratory activities) requires forensic service providers to hold ISO 17025 accreditation for all DNA profiling and fingerprint enhancement laboratories. National policing leads have agreed that police facilities carrying out this work will also comply with these standards. Deadlines for gaining accreditation are staggered between 2013 and 2015. However, the UK has now opted out of EU criminal justice measures, which will remove the legal obligation to comply with these standards.

2.3 Code of Practice – The Regulator has already produced a non-statutory Code of Practice for provision of forensic services to the criminal justice system. The Code of Practice sets out the standards required for any organisation or individual working with forensic evidence. The Code adds the UK context to the requirements of ISO 17025 and gives direction on topics such as validation, contamination control and information security.

2.4 Professional Standards – The Regulator has worked with a wide range of professional and representative bodies, including the Royal College of Pathologists, the Institute for Archaeologists, the Royal Anthropological Institute, the UK and Ireland Association of Forensic Toxicologists, the Society of Chiropodists and Podiatrists, the Forensic Science Society and the Fingerprint Society to produce professional standards for those disciplines.

2.5 Commercial Standards – The Regulator has worked with the British Standards Institute to develop a standard (PAS 377) for manufacturers producing consumables (DNA kits, swabs etc.) used in the collection, preservation and processing of forensic material.

2.6 Forensics Procurement Framework – The police agree contracts for provision of forensic services on a regional basis, as part of the Home Office’s forensic procurement framework. Under this framework, contracts require providers to hold ISO 17025 accreditation and meet other quality requirements including compliance with the Regulator’s Code of Practice and compliance with investigations by the Regulator. There are contractual penalties for failing to meet these requirements, including the possibility of removing a provider from the framework entirely. The vast majority of laboratories are part of the procurement framework – but this may not always be the case. Not all of forensic service provision comes under laboratory work. The procurement framework only covers services procured externally by law enforcement agencies (the police, HM Revenue and Customs, National Crime Agency).

2.7 The Regulator investigates any potentially serious quality breach by a forensic service provider, and makes recommendations to that provider in order to ensure the error is not repeated. The Regulator may also investigate issues referred to him by relevant authorities including Ministers and the Judiciary.

  1. Why are statutory powers needed?

3.1 Currently, provision of forensic services to the criminal justice system is regulated on a voluntary non statutory basis. With the exception of accreditation for loading to the NDNAD which is compulsory, the other regulation set out above relies on the co-operation of the organisations involved. Up until now, the voluntary regulation of forensic services has been effective, as it is in the interest of forensic service providers and the police to maintain high standards and investigate failings so that forensic evidence can be relied upon in court.

3.2 However, some of the safeguards above, such as contractual obligations, do not extend to the provision of forensic services to the defence (defendants and their legal representatives), nor to any force that might choose to operate outside of the procurement framework. There is also the possibility at some point the standards requirements could be forced out of the contracts under the framework due to pressure to reduce costs. Adoption of the Code of Practice is not a legal requirement, and without the co-ordinating and gate keeping role of national police leads and the Crown Prosecution Service, standards for forensic service providers for the defence rely on a case by case assessment by legal representatives procuring the service.

3.3 For both defence and prosecution services (and it should be noted that many companies supply both), the forensic landscape is changing as more private companies including smaller enterprises, and police forces themselves, enter the market. Organisations are entering and leaving the market more rapidly and there is also more pressure on all sides to reduce cost.

3.4 All of these factors mean there is an increased risk that in the future, a forensic service provider (or police force carrying out forensic work in house) may decide not to comply with the existing non statutory standards and Code of Practice set by the Regulator. Equally an organisation could, in the future, refuse to comply with an investigation or suggested improvements instigated by the Regulator following a serious quality breach.

3.5 The main aim of any statutory regulation would therefore be to provide an equal and fair environment in which all forensic service providers, both public and privately run, may operate, as well as to ensure that the UK Criminal Justice System continues to receive high quality services.

4 Government’s proposal

4.1 The Government’s proposal is:

  • To put the role of the Regulator on a statutory basis. The role will be defined in broad terms, and initially is likely to be interpreted in terms of traditional forensic disciplines, but with the possibility to increase the scope if required in the future.
  • To put the Regulator’s existing Code of Practice on forensic standards on a statutory basis, and incorporate the EU requirements for ISO 17025 accreditation. There will not be an extensive enforcement regime initially; however non-compliance with the statutory Code of Practice will be admissible as evidence in court. It is likely this will be sufficient as a deterrent.
  • To give the Regulator investigative powers for quality failures which carry a serious risk of a miscarriage of justice. This will include powers to access information and, therefore, exemption from the Freedoms of Information Act. A number of sanctions for non-compliance with an investigation or recommendations for improvements made by the Regulator are considered, including a public register of non-compliant organisations.

5 Role of the regulator

5.1 For each of the stages in the forensic evidence process listed below, please state whether you think they should, or should not be covered under the remit of the Regulator’s statutory powers.

  • Manufacture of forensic consumables – No should not be covered
  • Collection of evidence at the crime scene – Yes should be covered
  • Collection of samples from individuals – Yes should be covered
  • Preservation, transport and storage of evidence – Yes should be covered
  • Screening and selection of evidence – Yes should be covered
  • Examination and testing of evidence – Yes should be covered
  • National forensic databases – Yes should be covered
  • Assessment or review of examination and test results – Yes should be covered
  • Reporting and presentation of results with associated expert interpretations and opinions – Yes should be covered

We do not currently see how the regulator could be responsible for a manufacturing process and be able to have a credible role in it, particularly if consumables are manufactured overseas. All consumables purchased should be manufactured to appropriate industry standards.

5.2 For each of the forensic science disciplines below, please state whether you think they should, or should not be covered under the remit of the Regulator and his statutory powers (definition of forensics)

  • DNA extraction and profiling – Yes should be covered
  • Fingerprint enhancement, development and comparison – Yes should be covered
  • Toxicology (alcohol/drug testing) – Yes should be covered
  • Footwear comparisons – Yes should be covered
  • Trace evidence examination such as fibres, glass and paint – Yes should be covered
  • Facial identification – Yes should be covered
  • Other CCTV analysis e.g. gait analysis (CCTV cameras themselves come under a separate regulatory regime – only scientific analysis of the images is covered here) –

Yes should be covered

  • Drug identification and analysis – Yes should be covered
  • Firearms and ballistics – Yes should be covered
  • Gunshot residue – Yes should be covered
  • Explosives – Yes should be covered
  • E-forensics (Computer / mobile phone analysis) – Yes should be covered
  • Blood pattern analysis – Yes should be covered
  • Toolmarks – Yes should be covered
  • Tyre examination – Yes should be covered
  • Document analysis – Yes should be covered
  • Medical forensics including victim and suspect sampling in sexual assault cases – Yes should be covered
  • Forensic pathology – No should not be covered
  • Forensic dentistry/odontology – No should not be covered
  • Fire examination – Yes should be covered
  • Vehicle examination – Yes should be covered
  • Forensic anthropology – No should not be covered
  • Forensic archaeology – No should not be covered
  • Forensic palynology – Yes should be covered
  • Accident investigation and reconstruction – Yes should be covered
  • Disaster victim identification – Yes should be covered
  • Forensic accountancy – No should not be covered
  • Forensic psychiatry – No should not be covered
  • Forensic psychology – No should not be covered

There are professions within the list above that are covered by existing professional bodies (medical and financial) and we feel that the Forensic Science Regulator having a statutory role overseeing them would be unnecessary and duplicate existing bodies.

5.3 For each of the groups listed below, please state whether you think they should, or should not be required to have regard to a statutory Code of Practice on forensic standards.

  • Manufacturers of forensic consumables – Should not have regard
  • Suppliers of ‘DNA free’ components to manufacturers – Should have regard
  • Police forces – Should have regard
  • Other law enforcement agencies, such as the Serious Organised Crime Agency and military police – Should have regard
  • Police and Crime Commissioners – Should have regard
  • Forensic Service Providers – for the police / prosecution – Should have regard
  • Forensic Service Providers – for the defence – Should have regard
  • Individual experts – Should have regard
  • Legal Aid Agency – Should have regard
  • The Crown Prosecution Service – Should have regard
  • The Home Office (as the organisation responsible for the national DNA and fingerprint databases) – Should have regard

Procurement of forensic consumables would be a more appropriate area to be under the code to ensure standards are met rather than manufacturing which would be difficult to monitor particularly if consumables are imported.

5.4 To what extent do you agree or disagree that admissibility of the Code in court, contractual penalties and a power to investigate serious breaches, is sufficient to ensure compliance with the Code? (Please select one option a to e):

  1. a) Strongly agree
  2. b) Tend to agree
  3. c) Tend to disagree
  4. d) Strongly disagree
  5. e) Not sure

It would seem sensible to proceed with the proposed enforcement of a statutory code of practice without the introduction of an inspectorate and licensing regime and the associated costs burden. However we feel strongly that the Regulator should keep this under review to ascertain whether it is effective.

5.5 To what extent do you agree or disagree that putting the existing Code of Practice on a statutory footing will be beneficial? (Please select one option a to e):

  1. a) Strongly agree
  2. b) Tend to agree
  3. c) Tend to disagree
  4. d) Strongly disagree
  5. e) Not sure

If there is to be a regulator it is sensible that they have some measure of recourse that a statutory footing will supply and we support the intention to allow sufficient time for compliance with the Code and any changes that are made to it.

It would be helpful if the document for all users was straightforward and readable, not unnecessarily complex in layout, utilising plain language where ever possible.

6 Investigations and access to information

6.1 For each of the powers below, please state whether you think they are necessary on a statutory basis:

  • Powers of entry.
  • Access to information (documents and records).
  • Power to impose an improvement plan.
  • Discretionary power to produce a report.

All of the above powers should be available to the Regulator. If a regulator is to be backed by statutory powers then they need to have the necessary tools at their disposal to carry out investigations where it is deemed appropriate and necessary. If these powers are not in place then there is a danger of the Regulator being a ‘toothless tiger’ and rendering the process largely an irrelevance.

6.2 For each of the sanctions below, please state whether you think they would or would not be effective for organisations that refuse to co-operate:

  • Refer organisation to UKAS for review of accreditation status
  • Give the Regulator the power to recommend an organisation be suspended from the procurement framework
  • Financial penalty per day of non-compliance
  • Removal or suspension of work written into any public sector contracts
  • Public report or register
  • Requirement to disclose that subject to an improvement plan
  • Requirement for contracts with FSPs to require compliance with any Regulator investigation.

We would support all of the recommended actions proposed above except the financial penalty at a daily level for non-compliance. We do not feel monetary penalties will impact larger scale providers and may make it more difficult for newer providers to get to grips with their process as they strive to establish their service provision, however new providers will need to be fit for purpose from the start of their operation.

6.3 To what extent do you agree or disagree that the Regulator should have a statutory power to access information supplied to UKAS and subject to its confidentiality requirements? Please explain your answer.

We would support the Regulator having a statutory power to access information supplied to UKAS as this is already supplied on an informal basis. We would also support the extension of the Regular to be covered under existing whistleblowing legislation.

6.4 To what extent do you agree or disagree that statutory powers to investigate will be beneficial? Please explain your answer.

The key to the Regulator successfully fulfilling its responsibilities is transparency and ensuring maximum possible confidence in the process. While there will be costs associated with this move we are comfortable that our own process used in Northumbria are striding to become compliant with new guidelines to ensure we continue to be for purpose, this will extend scrutiny and re-enforce confidence as the market grows and ensures a commonality of standards in forensics within criminal justice system for prosecuting counsel and for the defence.

7 Costs and Benefits

7.1 Which of the following best describes you or the organisation or sector that you represent?

Office of the Police and Crime Commissioner.