Policy paper

Policy on enforcement action taken by the Forensic Science Regulator

Published 24 April 2024

FSR-POL-0003

Issue 1

© Crown Copyright 2024

The text in this document (excluding the Forensic Science Regulator’s logo, any other logo, and material quoted from other sources) may be reproduced free of charge in any format or medium providing it is reproduced accurately and not used in a misleading context. The material must be acknowledged as Crown copyright and its title specified.

This document is not subject to the Open Government Licence.

1. Introduction

1.1 General

1.1.1 The purpose of forensic science regulation is to ensure that accurate and reliable scientific evidence is used in criminal investigations, in criminal trials, and to minimise the risk of a quality failure.

1.1.2 The Forensic Science Regulator (the Regulator) is required to prepare and publish a Code of Practice (the Code) and take action using the statutory powers provided by the Forensic Science Regulator Act 2021 (the Act) ^{[footnote 1]} on the basis of an understanding of risk to criminal investigations and proceedings. The Code ^{[footnote 2]} came into force on 2 October 2023.

1.1.3 The Code is admissible in evidence in criminal proceedings in England and Wales and a court may take into account a failure by a person to act in accordance with the Code in determining a question in any such proceedings. The Code requires that forensic practitioners make a declaration of compliance or non-compliance with the Code and if non- compliance is declared then the steps taken to mitigate the risks associated with non-compliance must be set out in an Annex to the declaration. This provides a mechanism for the courts to understand the risks associated with non-compliance with the Code.

1.1.4 A risk to criminal investigations and proceedings may become apparent through a lack of compliance with the requirements of the Code or as a result of a quality failure or error reported to the Regulator. The use of the enforcement powers in the Act are based on the Regulator’s belief that a person may be carrying on a forensic science activity to which the Code applies in a way that carries a substantial risk (defined in the Code as risk which is more than theoretical or remote) of –

a. adversely affecting any investigation, or

b. impeding or prejudicing the course of justice in any proceedings.

1.1.5 The Regulator has identified high-level principles that will form the basis for taking enforcement action; These principles are without prejudice to the need for the Regulator to act quickly to address urgent risks, which may not allow for the typical escalation or level of communication.

1.1.6 Enforcement action taken will be:

Proactive and reactive

1.1.7 Through information provided by a Senior Accountable Individual or otherwise, the Regulator may proactively identify risk. Other risks will be identified through referrals brought to the attention of the Regulator.

Proportionate

1.1.8 The use of the enforcement powers must be proportionate to the risk posed and based on escalation, where appropriate, with the full enforcement powers under the Act being used in general as a last resort.

Fair, transparent, and consistent

1.1.9 The enforcement and compliance process must be fair and transparent, with consistency across forensic units and FSAs.

Supportive

1.1.10 The enforcement and compliance process must assist forensic units in producing reliable evidence, maintaining and encouraging the culture of self- referrals that exists in forensic science.

1.1.11 This policy document sets out the process and basis for decision making in respect of enforcement action that may be taken by the Regulator to ensure compliance with the Code and that risks are mitigated.

1.2 Compliance

1.2.1 Compliance with the Code is an absolute concept; a forensic unit either complies with the requirements set out in the Code or does not. However, the Regulator recognises that the impact of different non-compliances might not be equal, but is a continuum from minor to severe, with increasing risk

posed to the Criminal Justice System (CJS). Therefore, the process for enforcement of compliance involves the Regulator making an assessment of risk to the CJS.

1.3 Enforcement

1.3.1 The enforcement powers in the Act are not automatically triggered by a lack of compliance with the Code. However, a lack of compliance with the Code would, in the view of the Regulator, provide the basis for an intervention to assess risk which may in turn trigger use of the powers of the Act. Forensic units should therefore achieve compliance with the Code to demonstrate that risks are understood and accounted for, to reduce the likelihood of the Regulator having reason to believe that there is a substantial risk to any criminal investigation or the course of justice in any proceedings.

1.3.2 In Section 23 of the Code, requirements are set regarding the control and reporting of non-conforming work, which includes any aspect of the forensic unit’s work that does not meet the requirements set out in the forensic unit’s policies, procedures, commissioning party requirements, or the Code.

1.3.3 Section 9 of the Act includes the power for the Regulator to provide advice or assistance relating to FSAs to any person. Many incidents of failure to comply with the Code (non-conformances) and many relevant risks may be addressed through such advice and assistance, particularly where there is transparency and cooperation from the forensic units or practitioners involved.

1.3.4 The Act allows for the carrying out of formal investigations of non- conformances referred to the Regulator when it is deemed appropriate and proportionate to do so.

1.3.5 Not all referred non-conformance will result in investigations under powers granted by the Act. Prior to the instigation of such a formal investigation, there will generally be an information gathering stage which allows for an assessment of risk that the non-conformance poses. This stage allows the

Regulator to determine a proportionate response to that risk without invoking the powers granted under the Act.

1.3.6 The Regulator anticipates that the risk presented by the large majority of non-conformances are likely to be addressed at this early stage through dialogue and cooperation with forensic units.

1.3.7 Where the Regulator believes that the risk presented by a non-conformance cannot be addressed through dialogue, then a formal investigation may be instigated using powers granted under Sections 5 and 6 of the Act.

1.4 Jurisdiction of the Regulator

Territorial extent

1.4.1 The Act sets out the Regulator’s duty to “prepare and publish a code of practice about the carrying on of forensic science activities in England and Wales.”

1.4.2 The Code establishes the quality standards which must be complied with by those undertaking forensic science activities (FSAs) to which the Code applies in England and Wales.

1.4.3 Section 11 of the Act defines “forensic science activity” thus:

(1) In this Act “forensic science activity” means an activity relating to the application of scientific methods for a purpose mentioned in subsection (2).

(2) Those purposes are—

a. purposes relating to the detection or investigation of crime in England and Wales;

b. purposes relating to the preparation, analysis or presentation of evidence in criminal proceedings in England and Wales;

c. such other purposes as the Secretary of State may specify in regulations made by statutory instrument.

1.4.4 The key provisions of the Act as described in Sections 2(1) and 11(2)(b) therefore apply only to England and Wales, and the Code only applies to

FSAs undertaken in criminal investigations and proceedings and that are undertaken in England and Wales.

1.4.5 That the Regulator cannot issue a compliance notice outside England and Wales, also negates the provisions of Section 7 (Compliance certificates) and Section 8 (Appeals) outside that jurisdiction.

1.4.6 However, the Regulator may consider using powers granted under Section 9 of the Act to provide advice and guidance when Sections 5 to 8 of the Act cannot apply. These powers allow the Regulator to:

a. prepare and publish guidance or reports on any matter relating to forensic science activities carried on in England and Wales.

b. provide advice or assistance relating to forensic science activities carried on in England and Wales to any person (including any person in a country or territory outside the United Kingdom.)

Crown Body

1.4.7 Other than for someone serving or employed for policing purposes, Section 12 of the Act sets out that Sections 5 to 8 do not bind the Crown. Where the Regulator has a specific concern about a forensic science activity undertaken by a Crown Body, the Regulator will inform the relevant Secretary of State for the Crown Body and utilise the provisions of Section 9 to give advice and assistance to the Crown Body in question to ensure that accurate and reliable forensic science evidence is used in the investigation of crime and criminal proceedings.

2. Information gathering

2.1 General

2.1.1 The Act allows the Regulator to investigate the carrying on by a person of any forensic science activity to which the Code applies where they (the Regulator) believe the activity may present the relevant level of risk. This can be either reacting to notification of non-conforming work (i.e. referrals to the

Regulator), or by proactively assessing wider compliance with the Code within the community.

2.1.2 Activity that the Regulator can investigate using powers provided by the Act, includes FSA general requirements as set out in the Code as these requirements apply to all FSAs to which the Code applies and so can be considered to be integral to those FSAs.

2.1.3 Referrals to the Regulator are ordinarily made by email through the FSREnquiries@forensicscienceregulator.gov.uk address, but can originate from a variety of sources.

2.1.4 In this information gathering stage, communication may be had with a manager or other authorised representative at a forensic unit, rather than with the Senior Accountable Individual.

2.2 Compliance - Reactive

2.2.1 Non-conformance referrals made to the Regulator are considered to be either direct or indirect.

Direct referrals

2.2.2 Direct referrals are specific communications notifying the Regulator about one or more perceived instances of non-conformance or perceived significant risk. These can be:

Self referral

2.2.3 A self-referral is one identified by the forensic unit itself and reviewed through the accepted management structure. These include:

a. referrals with a completed internal review report; and

b. referrals describing an issue still under internal review

Third party referral

2.2.4 A third-party referral is one identified externally to the forensic unit, or internally if not through the accepted management structure. These include, but are not limited to referrals from:

a. the accreditation body

b. a separate forensic unit;

c. a whistle-blower;

d. a member of the public (usually one who has been affected by the case);

e. organisations who investigate potential miscarriages of justice; or

f. a body with investigatory powers, such as CCRC or IOPC.

Indirect referral

2.2.5 An indirect referral reflects a situation where the Regulator becomes aware of non-compliance via a route that is neither a self-referral nor a third-party referral. That awareness may come from places such as:

a. adverse Judicial comment not reported specifically to the Regulator, but which the Regulator becomes aware of in a judgment; or

b. a press article.

2.3 Compliance - Proactive

Compliance Survey

2.3.1 The Regulator will determine overall levels of compliance with the Code amongst forensic units by carrying out a compliance survey, or by providing some other method for forensic units to provide relevant information.

2.3.2 Such an exercise might reveal non-conforming work relating to

a. a specific FSA being carried out by a specific forensic unit;

b. multiple FSAs being carried out by a specific forensic unit;

c. a specific FSA being carried out across multiple forensic units; or

d. multiple FSAs being carried out across multiple forensic units.

2.3.3 Issues of non-compliance with the Code identified in this way will be subject to the same process as non-conformance identified in other ways.

2.3.4 A compliance survey also serves to identify areas where the Regulator might issue guidance to enhance the levels of compliance.

3. Investigations according to the Act

3.1 Section 5 – Investigations by the Regulator

3.1.1 An investigation under Section 5 of the Act is likely to be brought in one or more of the following circumstances:

a. Following an evaluation of the ongoing risk posed by a non- conformance, the Regulator determines that the risk presented is substantial and cannot be addressed through dialogue and co- operation alone.

b. The person has not engaged with the Regulator in addressing a non- conformance through dialogue and co-operation.

3.1.2 In the above, ‘person’ can be taken to mean an individual, or a group of individuals who may, or may not form a company or other organisation

3.1.3 The Regulator will ordinarily inform the person in writing that they are being made subject to a formal investigation under Section 5 of the Forensic Science Regulator Act 2021, but may not do so if informing the person could prejudice the investigation.

3.1.4 The Regulator may issue a request under Section 5 requiring the person to provide information. This request will set out:

a. a description of the information required;

b. a date or time by which the information is to be provided; and

c. the format in which the information is to be provided.

Declaration

3.1.5 An investigation under Section 5, is an information gathering stage. It is a formal process, but does not of itself necessarily constitute an adverse finding by the Regulator.

3.1.6 Unless the Regulator states otherwise, there is no requirement that an investigation under Section 5 should be subject to a declaration provided that the request for information is complied with.

3.1.7 The Regulator may bring proceedings for an injunction, or interim injunction, to enforce a Section 5 request if it is not complied with. The Regulator may require a declaration to be made if an injunction is served.

3.1.8 Non-compliance with a Section 5 request means that the Regulator cannot assess the risk posed to a criminal investigation, or to any proceedings; such non-compliance may draw adverse comment from the Regulator.

3.1.9 If a Section 5 request is not complied with, a Section 6 compliance notice may be issued, requiring that person on whom the notice is served to declare that they are subject to an investigation by the Regulator.

3.2 Section 6 – Compliance Notices

3.2.1 A compliance notice is one which may be served on a person and may prohibit them from carrying on any FSA (including any specific sub-activity or preparatory work) to which the Code applies. Such a notice may be issued if the Regulator believes that immediate action is required.

3.2.2 Such a belief may arise where:

a. a person has been requested to provide information under Section 5 of the Act, but has not complied with that request; or

b. the circumstances of the non-conformance are such that the Regulator requires immediate action to be taken.

3.2.3 Restrictions will be specified in the notice and will apply until the Regulator is satisfied that one or more specified steps either have been taken or do not need to be taken.

3.2.4 A compliance notice will be served in writing and should be served by one of the following methods:

a. By hand to the person;

b. By tracked first class post, document exchange or other service which provides for delivery on the next working day to:

i. an address specified by the intended recipient;

ii. the usual or last known address of the intended recipient;

iii. the principal place of business of the intended recipient; or

iv. the principle office of the company or corporation of the intended recipient.

c. By e-mail to an e-mail address, or to e-mail addresses which may be used for service, including to any two relevant addresses where service by email is effected only by sending to multiple addresses. Any email issuing a compliance notice should be tracked to ensure that it can be confirmed that it has been received and read; or

d. When served on a forensic unit, the notice can be left with someone holding a senior position. This could be the Senior Accountable Individual.

3.2.5 The compliance notice shall set out:

a. The Regulator’s reasons for serving the notice. These might include:

i. Reasons around non-compliance with the forensic unit’s own Quality Management System (QMS); or

ii. Reasons around non-compliance with the Code, including the forensic science activity to which the Code applies.

b. Any prohibitions imposed by the Regulator on the carrying out of FSAs by the person on whom the notice is served.

c. The Regulator’s requirements, including the following:

i. Any steps that the person on whom the notice was served should take to address the reasons why the notice was served.

ii. The timescale within which those steps are to be completed;

iii. The format that any evidence should take to demonstrate that the required steps have been taken.

d. The right to appeal the notice; and

e. The consequences of not complying with the notice

3.2.6 To secure compliance with any step or prohibition specified in a compliance notice, the Regulator may bring proceedings for an injunction, or interim injunction.

3.2.7 The person on whom a compliance notice is served has the right to appeal that notice, either in part or in its entirety. That process is outlined further in this document.

3.2.8 In the first instance, the person on whom the notice has been served may contact the Regulator’s office setting out their reasons for wishing to challenge the notice.

3.2.9 The person on whom the notice is served may appeal to the First Tier Tribunal (General Regulatory Chamber) ^{[footnote 3]} for which the Regulator may need to provide evidence to support the content of the notice.

3.2.10 The Tribunal may confirm, vary, or cancel the notice, or may remit that decision to the Regulator.

3.2.11 The Regulator can, at any time, vary or cancel a compliance notice after it has been served by giving notice in writing to the person on whom it was served.

3.2.12 The Regulator will ordinarily publish details of active compliance notices that are issued, including:

a. details, subject to considerations of data protection legislation, of who the notice was served on;

b. the reason(s) for serving the notice;

c. any relevant prohibitions; and

d. the steps that the Regulator requires to be taken

Crown Bodies

3.2.13 The Regulator will ordinarily publish details of any advice or assistance given to a Crown Body under section 9 of the Act where the Regulator has a specific concern about a forensic science activity undertaken by that Crown Body.

Declaration

3.2.14 The serving of a compliance notice by the Regulator amounts to an adverse finding by them as set out in Criminal Practice Directions ^{[footnote 4]} 7.1.4(e), requiring that such adverse finding be disclosed.

3.2.15 The Regulator also requires that anyone served with a compliance notice declares that fact according to declaration guidance^{[footnote 5]} published by the Regulator. The declaration should detail the reasons why the notice has been served.

Consequences of not meeting the requirements of a Compliance Notice

3.2.16 The Regulator will set out in a compliance notice the consequences that will arise if the steps set out in that notice are not taken.

3.2.17 Those consequences may include a further compliance notice, prohibiting the person on whom the notice is served from carrying out any forensic science activity in England and Wales specified in the notice until the Regulator is satisfied that a step specified in the notice has been taken, or does not need to be taken.

3.3 Section 7 – Completion certificates

3.3.1 Once the Regulator is satisfied that steps specified in a compliance notice have been taken, or do not need to be taken, a completion certificate will be issued.

3.3.2 A completion certificate can be issued when all of the steps specified in a compliance notice have been taken, or a certificate of partial completion can be issued where some, but not all of the steps have been taken.

3.3.3 A person on whom a compliance notice is served may at any time apply for a completion certificate.

3.3.4 The Regulator will respond to an application for a completion certificate within the period of fourteen (14) days beginning with the day after the day on which the Regulator receives such an application. This does not necessarily equate to the date on which an application is made.

3.3.5 The response to an application for a completion certificate will be either:

a. a completion certificate relating to the compliance notice; or

b. written notice of the Regulator’s decision not to issue such a certificate, together with the Regulator’s reason(s) for that decision.

Declaration

3.3.6 A compliance notice ceases to have effect to the extent specified in a completion certificate relating to that notice on the date that the certificate is issued.

3.3.7 Where a certificate of partial completion is issued, then the person on whom the compliance notice was served is still required to make a declaration in respect of the remaining steps from the compliance notice that have not been taken.

3.3.8 Once a completion certificate is issued to acknowledge that all of the steps in the compliance notice have been taken, or do not need to be taken, then the person on whom the compliance notice was served is no longer considered to be subject to an adverse finding by the Regulator.

3.3.9 Consequently, the Regulator does not require that any specific declaration in respect of a compliance notice needs be made once a completion certificate in respect of all the specified steps on that compliance notice is issued.

3.3.10 The issuing of a completion certificate does not alter the fact that the person on whom the compliance notice was served has been subject to an adverse finding by the Regulator. The duty to disclose the compliance notice continues insofar as required by Criminal Practice Directions [4] 7.1.4(e) .

3.4 Section 8 – Appeals against a compliance notice

3.4.1 Representations in respect of the requirements set out in a compliance notice served by the Regulator should be made in writing to the Regulator. This should be by email at FSREnquiries@forensicscienceregulator.gov.uk, or by registered post to the address listed at Forensic Science Regulator - GOV.UK (www.gov.uk).

3.4.2 The Regulator may temporarily vary any notice until such time as an appeal is determined, withdrawn, or abandoned.

3.4.3 The Regulator will generally seek to respond to such representations within fourteen (14) days or such other timeframe as has been agreed between the Regulator, the person on whom the notice was served and the First-Tier Tribunal, with regard to deadlines for service of any appeal against the notice.

3.4.4 The Regulator may confirm, vary or cancel a notice following the receipt of representations, or at any time.

3.4.5 A person served with a compliance notice also has the right of appeal directly to the First Tier Tribunal (General regulatory Chamber) against the decision to serve the notice. Any such appeal should be made within 28 days of the service of the compliance notice. The Tribunal can extend this time limit.

3.4.6 The grounds for appeal to the First Tier Tribunal are that:

a. The Regulator’s decision was based on an error of fact;

b. The Regulator’s decision was wrong in law;

c. The Regulator’s decision was unreasonable; or

d. Any step or prohibition specified in the notice is unreasonable.

3.4.7 The First Tier Tribunal may:

a. Confirm the notice;

b. Cancel the notice;

c. Vary the notice; or

d. Remit to the Regulator the decision whether to confirm, cancel, or vary the notice.

3.4.8 The same right of appeal on the same grounds, and within the same timeframe, applies if the Regulator varies a compliance notice that has been served.

3.4.9 The same right of appeal, and the same timeframe, applies in respect of a decision by the Regulator not to issue a completion certificate. In this instance, the First Tier Tribunal may:

a. Confirm the Regulator’s decision not to issue a completion certificate;

b. Require the Regulator to issue a completion certificate; or

c. Remit to the Regulator the decision whether to issue a completion certificate.

3.4.10 The First Tier Tribunal, and the Upper Tribunal where a First Tier Tribunal decision is appealed, may suspend any requirement or prohibition specified in the compliance notice until the appeal is determined, withdrawn or abandoned.

4. Review

4.1.1 This document is subject to review by the Forensic Science Regulator.

4.1.2 The Forensic Science Regulator welcomes views on this document. Please send any comments to the address as set out at the following web page: www.gov.uk/government/organisations/forensic-science-regulator or send them to the following email address: FSREnquiries@forensicscienceregulator.gov.uk.

5. Modification

5.1.1 This is the first issue of this document

5.1.2 The PDF is the primary version of this document.

5.1.3 The Regulator uses an identification system for all documents. In the normal sequence of documents this identifier is of the form ‘FSR-###-####’ where

(a) (the first three ‘#’) indicate letters to describe the type of document and

(b) (the second four ‘#’) indicates a numerical code to identify the document. For example, this document is FSR-POL-0003, and the ‘POL’ indicates that it is a policy document. Combined with the issue number this ensures that each document is uniquely identified.

5.1.4 If it is necessary to publish a modified version of a document (for example, a version in a different language), then the modified version will have an additional letter at the end of the unique identifier. The identifier thus becoming FSR - ### - #### - #.

5.1.5 In the event of any discrepancy between the primary version and a modified version then the text of the primary version shall prevail.

Published by:

The Forensic Science Regulator
c/o Home Office Science
23 Stephenson Street
Birmingham
B4 2BJ

www.gov.uk/government/organisations/forensic-science-regulator

6. References

1. H. Government, Forensic Science Regulator Act 2021, HM Government. ↩

2. F. S. Regulator, “Forensic Science Regulator,” [Online]. Available: Forensic science activities: statutory code of practice. [Accessed July 2023]. ↩

3. GOV.UK, “Ciminal Practice Directions,” 2023. [Online]. Available: Criminal Procedure Rules 2020 and Criminal Practice Directions 2023. [Accessed 22 November 2023]. ↩

4. Courts and Tribunals Judiciary, “First-tier Tribunal,” [Online]. Available: General Regulatory Chamber. [Accessed 22 November 2023]. ↩

5. Forensic Science Regulator, “Guidance - Declaring compliance with the Code Of Practice,” [Online]. Available: Declaring compliance with the code of practice. [Accessed 22 November 2023]. ↩