Correspondence

Forensic Science Regulator 2023 conference: questions and answers

Published 7 August 2023

Applies to England and Wales

Contact details

If you have any comments or feedback, please contact the Regulator via the following routes:

The Forensic Science Regulator
23 Stephenson Street
Birmingham
B2 4BJ
United Kingdom

Email: FSRenquiries@forensicscienceregulator.gov.uk

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

Message from the Forensic Science Regulator

I would like to thank everyone who attended my first conference as a statutory Regulator.

In the newsletter we have tried to give flavour of the presentations and discussion at the conference, and I am pleased that we are providing a consolidated response to more than ninety questions that were raised by delegates during the conference.

Thank you to colleagues from UKAS, FCN, MOJ, Chair of the Forensic Science Regulator’s Incident Examination Specialist Group, Police Digital Service, and Office of the Forensic Science Regulator who have contributed to the questions responses that follow.

Gary Pugh
Forensic Science Regulator

FSR Conference 2023 Questions and Answers

Referrals, Enforcement, and Compliance

Q1. Please clarify what you mean as a Quality Non-conformance, these are non- conformance you wish to be notified of as early as possible?

Answer: A forensic unit shall inform the Regulator about any non-conforming work if it has potential to disaffect the commissioning party such that it could attract adverse public comment, be against the public interest or lead to a miscarriage of justice, and the Regulator shall be provided with a report on the review of the non-conformity. The Regulator shall be notified at the earliest opportunity once an issue has been confirmed as a quality failure rather than after a potentially prolonged review. Basic information on the incident and likely timescale for the review may be sufficient at the notification stage.

Q2. Is there a defined threshold for a compliance notice to be served?

Answer: There is no set threshold for issuing a compliance notice. As the Regulator has set out this is based on the belief that there is a substantial risk to criminal investigations or proceedings.

Q3. Is there still some guidance from the FSR regards the complex area of reporting coming? If so, what will this look like and when can we expect it?

Answer: If this refers to evaluative opinion or interpretation generally then as the Regulator has set out a FSR Specialist Group will be established under the chairmanship of Dr Gill Tully, CBE. The first task of this Specialist Group will be to consider the requirements for interpretation and evaluation for all of the forensic science activities that will be subject to the first version of the Code. The Regular hopes the terms of reference, Membership and Workplan will be published in the Autumn.

Q4. If the FSR has not taken action regarding a provider’s non-Code compliance, will that in itself be indicative to the court when considering admissibility?

Answer: As the MoJ described there are two potential impacts from the FSR Act on the admissibility of forensic science evidence; Section 4 which allows the court to take into account a failure by a person to act in accordance with the Code and Section 5 where the Regulator has conducted an investigation and taken enforcement action. If an organisation has declared non- compliance but this has not led to any enforcement action then it would be for the court to only consider the Section 4 provisions and the mitigation as required by the Code and set out in the declaration of non-compliance.

Q5. How are the impacts/benefits of the implementation of the Code and statutory powers for the FSR going to be assessed against the risks and costs to the system?

Answer: The statutory powers and Code of Practice are a result of Parliament introducing legislation with cross party support and support in both Houses of Parliament. It would be for Ministers and Parliament to assess the effectiveness of this legislation. The Regulator is keen to ensure that regulation of forensic science is meaningful and effective and through the annual report required by the FSR Act the Regulator will be able to report on the risks to criminal investigations and proceedings and the effectiveness of regulation.

Q6. Will organisations under enforcement actions/non-compliance notices be publicly declared by the FSR?

Answer: As a general rule the Regulator will publish Compliance Notices and Completion Certificates to ensure that all those involved in the investigation of crime and the criminal justice system are aware that such notices have been issued.

Q7. If there is a s5/6 against say digital, will this have to be declared by fingerprints?

Answer: Compliance Notices and Completion Certificates under s6 and s7 of the FSR Act relate to the carrying on of a forensic science activity that is subject to the Code. A Compliance Notice and Completion Certificate issued in respect of one forensic science activity would have no bearing on another forensic science activity unless there was a general quality failure in an organisation that affected all of its activities.

Q8. Will the fact an organisation is subject to FSR enforcement action be shared with other parties, such as UKAS, CPS, HMICFRS etc?

Answer: see the answer to Q5 but the Regulator may take specific steps to inform organisations that a Compliance Notice is in place.

Q9. Will the outcome of an FSR investigation be published publicly in any format?

Answer: see the answer to Q5, the Regulator may also publish through the FSR website guidance, reports or lessons learnt reviews as covered by s9 of the FSR Act.

Q10. If declaring a compliance notice, when a completion certificate is granted can you stop declaring?

Answer: The completion certificate nullifies the compliance notice. The Regulator will keep compliance notices on record for trend identification, but there’s no requirement by the Regulator for them to keep being declared once spent. However, the Criminal Practice Directions identify the following as potential areas for disclosure in respect to the reliability of expert evidence;

• a. a history of failure or poor performance in quality or proficiency assessments;
• b. a history of lax or inadequate scientific methods;
• c. a history of failure to observe recognised standards in the expert’s area of expertise;
• d. a history of failure to adhere to the standards expected of an expert witness in the criminal justice system.

Q11. Can we have a list of the type of referrals the FSR expects to receive under the new codes, so we have an idea of the level of issue we need to refer to you?

Answer: It would not be practical to produce a list of every type of referral. In the statutory Code at Section 23.1 Control of non-conforming FSA related work the requirements and basis for informing the Regulator of nonconformances or quality failures are set out. See also answer to Q1.

Q12. If admissibility in court is a question, is there a risk that those convicted prior to the new codes can argue they now need an appeal?

Answer: The Code does not apply retrospectively but it has always been the case the Regulator will take referrals and may conduct an investigation into historic cases where there is a potential risk to criminal investigations or proceedings.

The Code

Q13. Will reports issued by the Drugs Expert Witness and Valuation Association be covered under the new code and if so, how will compliance be assessed?

Answer: The statutory Code is not based on who undertakes a forensic science activity but what forensic science activity they are undertaking. If a person is undertaking a forensic science activity that is subject to the Code they will need to declare compliance or not as required by the Code.

Q14. How can we ensure that innovation is not stifled, and novel approaches can still be applied where case circumstances dictate?

Answer: The Code requires that an effective quality management system is in place and allows for infrequently used and new methods. The Regulator does not want to stifle innovation, but any novel approaches should be validated and undertaken by individuals who are competent.

Q15. Can you expand on the distinction between accreditation to ISO 17025/17020 and accreditation to the FSR Code?

Answer: First it is important to recognise that the statutory regulation of forensic science requires a declaration of compliance to the Code of Practice not a statement about accreditation or quality standards. The Code sets requirements that include international standards such as ISO 17025 and ISO 17020 but also specify additional requirements. Accreditation to ISO 17025 and ISO 17020 alone does not allow an organisation to declare compliance with the Code.

The established quality standard for many forensic science activities is ISO 17025, the Regulator highlighted that ISO 17020 as applied to incident examination is relatively new and he has asked that the Incident Examination Specialist Group to give thought to the forensic science activity specific requirements and guidance on this new standard learning from our experience to date.

Q16. If the FSA is not compliant to the FSR statutory codes and this is reported in an SFR1, is an annex detailing mitigations still required?

Answer: Yes.

Q17. If the FSA is partially compliant to the codes or sub activities are not accredited but the FSA is required to be compliant, are annexes required for SFR1s?

Answer: Yes.

Q18. What are the opinions of those in the criminal bar with respect to admissibility of forensic evidence which is not compliant with the FSR Code?

Answer: Individual barristers have responded to the statutory consultation, but the Criminal Bar Association has not expressed a view about the admissibility of forensic science evidence which is not compliant with the Code.

Q19. Why was QMS chosen over validation as an indication of lower risk, when validated methods is key to mitigate the risks of quality failure?

Answer: Validation is a key element of any quality management system that needs to meet quality standards such as ISO 17025. A quality management system is much broader than validation and would include for example the need for individuals to demonstrate competence, requirements to have controlled procedures and audit and assurance processes.

Q20. Is there a danger that this is becoming too complicated, and we see reductions in the use forensic evidence? Costs outweigh benefits.

Answer: Forensic science is very complex using a wide range of science and technology and the impact of a quality failure can be profound particularly where it is a system failure. There are also human reputational costs to a quality failure in forensic science.

Q21. Nearly 50% of practitioners responding to the FSR survey said the Code was not clear enough in relation to actions to ensure compliance. Is that not a concern?

Answer: Yes, it is forensic practitioners who will need to declare compliance with the Code or not and will need to be able to explain the mitigation of a non-compliance to the court should there be an admissibility challenge. The Regulator is encouraging all Senior Accountable Individuals to ensure their staff who undertake forensic science activities that are subject to the Code fully understand the Code and their obligations. The Regulator welcomes feedback on the Code where there are ambiguities.

Q22. Is evaluative reporting in or out of the code for 2 October?

Answer: Evaluative reporting is an important part of Forensic Science and there are some requirements in the Code to this effect. With regard to the development of Evaluative Opinions Appendix to the current non-statutory Codes of Practice and Conduct, this will be published as a guidance document under section 9 of the FSR Act. See also answer to Q3.

Q23. The declarations do not include the declaration to use when there is a mix of accredited and unaccredited FSAs.

Answer: The Regulator will be publishing further guidance on making declarations but the declarations in the statutory Code should be used as the basis for declaring compliance with the Code.

Q24. Interested based on the questions in how many here actually read the FSR Act and Code rather than waiting to be told.

Answer: The Regulator hopes that all practitioners and those involved in the delivery of forensic science activities that are subject to the Code have read and understood the FSR Act and the Code

Q25. Will there be any central training from the OFSR?

Answer: The Regulator has no plans to provide training.

Q26. New versions of ISO standards allow 2 years for transition. Is the effect of less than 6 months transition for the Code fully understood?

Answer: The transition is only for those organisations who are accredited to issue 7 of the current Codes of Practice and Conduct and allows them to transition to the new statutory Code based on successfully completing the process that has been outlined by UKAS. The transition does not involve introducing new or amended quality standards.

Q27. Does the regulator accept that financial costs on forensic units to arrange UKAS visits is too great when other regulated areas (education) don’t burden this?

Answer: There is a cost to meeting the standards set by the Regulator and this was acknowledged when the legislation to put forensic science regulation on a statutory footing was considered by Parliament. Equally there are human and reputational costs to the CJS where there are quality failures in forensic science. The Regulator is fully aware and appreciates the impact of establishing an effective quality management system and will be working closely with law enforcement, commercial, criminal justice organisations and UKAS to ensure that forensic science regulation is meaningful and efficient in minimising the risks to criminal investigations and proceedings.

Q28. The lack of technical managers out there is a big risk and the public sector can’t compete financially with the private sector. What’s your view on this?

The Regulator acknowledges that the introduction of a statutory basis for forensic science regulation may require significant change and will need leadership commitment and oversight. The Regulator has introduced the role of Senior Accountable Individual (SAI) in the Code. The SAI shall be accountable for the strategic leadership of the forensic unit’s compliance with this Code and be accountable for risks related to any FSA undertaken by, or under the control of, the forensic unit from the date the Code comes into force. It is critical that the individual who undertakes the SAI role has the empowerment and authority to allocate and draw on resources and instigate change that enables compliance with the Code and the management of risk. It is up to the SAI to decide on resource matters.

Toxicology questions

Q29. Is there a date set yet for the Section 5a (DTN 102) working group discussion and also can you confirm who will be involved?

Answer: The date of a meeting to look at the forensic science activity involving analysis of drugs driving samples under section 5A has not been established. The s5A working group comprises a small group of representatives from industry, academia and independent practice who will review the FSA-specific requirements for drug driving analysis and provide recommendations to the Regulator on how these can be improved for clarity and to reflect practice. The group will convene for the first time in Q2 this year and will devise a program of work for the next 10-12 months to review the specifications before consulting on this with a broader range of stakeholders.

CPS questions

Q30. How will cases be managed by CPS that have been reported before the 2nd October 2023 but does not appear in court until after this date?

CPS Answer: Any FSA conducted before 2 October 2023 will remain subject to the prescribed standards and/or codes that were applicable at that time and thus, will be managed by CPS as they are now. Where a forensic practitioner conducts an FSA before the Code comes into force, but is providing the report after 2 October 2023, they should state that the work was carried out before the Code came into force and declare whether or not it was compliant with the prescribed standards/codes that were applicable at the time.

With regards to any change in a provider status for an FSA that is subject to the Code and that was conducted post 2 October 2023 to produce a report, cases will have to be managed on a case-by-case basis. The relevant declarations will have to be made at the time any report is prepared but the Criminal Procedure Rules, Criminal Practice Direction, and statutory Code (e.g. see sections 24.5, 37.1, and 37.3) do impose an obligation to notify and confirm in writing if for any reason an existing report requires any correction or qualification. That could for example cover action taken by the FSR under the Act in between the time a report was prepared and the appearance of the expert in court to give evidence.

Q31. How are we ensuring that there is a consistent approach to compliance/ non compliance across the CPS and CJS nationally?

CPS Answer: The CPS does not control the approach that is taken by the CJS and the courts, the question of admissibility is ultimately a matter for judges and magistrates. The CPS is preparing guidance for prosecutors on the approach to take to evidence that is not compliant with the FSR Code when charging and reviewing cases. This will include an assessment of risk (along the lines of the Risk Categorisation Model being developed by MoJ) but each case will have to be considered on its own facts. If for example a case depends entirely on one piece of non- Code compliant forensic evidence that will inevitably be subject to greater scrutiny than a case in which such non-compliant evidence is only one of several different pieces of evidence.

Q32. What education is being provided to CPS at a local level?

CPS Answer: CPS Legal Guidance is being prepared for prosecutors (see 31 above). Early briefings to senior managers and to staff through a monthly law digest have been provided. Training is also being considered.

Q33. What training has been provided to CPS and the judiciary in relation to the new act?

CPS Answer: CPS Legal Guidance is being prepared for prosecutors (see 31 above). That will be available to all through the CPS website. Further training in the form of on-line training or podcasts is also being considered.

Q34. I am grateful for the input from CPS but this overcomplicated the issue and will lead to significant issues during investigation and court hearings.

CPS Answer: This is not a straightforward issue especially because it may take some time before we see any caselaw from the appeal courts setting out the view of the courts on the impact of the FSR Act and the Code. Investigators, prosecutors and courts will always want to see the best available evidence collected and used in the trial of criminal cases but if that best (FSR Code compliant) evidence is not available then decisions will have to be made on a case- by-case basis about the reliability of that evidence and whether that affects the realistic prospect of a conviction (the evidential stage of the CPS Code test).

Q35. Is the CPS risk assessment disclosable to the defence?

CPS Answer: This is presumably a reference to the proposed Risk Categorisation Model and any assessment made by prosecutors (or others) of where a piece of forensic evidence sits in that model. The information that feeds into that assessment will be disclosed as part of any expert report (compliance with the FSR Code and if not any mitigations) so it is arguable whether any further disclosure is necessary. The Criminal Procedure Rules do provide that in serving an expert report it should be accompanied by “notice of anything of which the party serving it is aware which might reasonably be thought capable of undermining the reliability of the expert’s opinion, or detracting from the credibility or impartiality of the expert…”. So, any evidence that is FSR Code compliant would not need any disclosure of a risk assessment. It is arguable whether in other cases a risk assessment may be disclosable given that the issues involved will have been disclosed in the expert report but this is an issue that CPS will consider as part of their legal guidance.

Q36. Given the issues with application and use of SFRs by CPS and defence, how sure can we be that compliance will be understood by the courts?

CPS Answer: It may take time before the effects of the FSR Act and Codes are apparent and widely understood. The wording of section 4 of the FSR Act is not very specific (a court may in particular take into account a failure by a person to act in accordance with the code in determining a question in any such proceedings) and we will have to see how the courts interpret that provision. That may involve appeals (from both defence and prosecution) and ultimately some guiding principles from the appeal courts but the Act and Codes will increase scrutiny of forensic evidence and focus attention on Code compliance and accreditation in a way that the courts have not done in the past.

Q37. Do CPS have an initial view on where they might set the risk threshold from the matrix for not using forensic evidence, e.g. moderate risk or high risk?

CPS Answer: This will have to be a case specific decision particularly in relation to the presence and strength of “other” evidence. But it is obviously preferable for forensic evidence to be compliant with the FSR Code (where that applies).

Q38. We are only too familiar with national inconsistencies, how will CPS/MOJ ensure local interpretation doesn’t drive up over engineering of forensic science?

CPS Answer: Parliament has decided to set regulation for forensic science activity following several years of debate and that should encourage national consistency, not inconsistency. If there are issues as between policing and CPS locally these should be addressed through the usual local escalation processes and through local Joint Operational Improvement Meetings (JOIM formerly the PTPM Prosecution Team Performance Meetings). For the courts see earlier comments about possible appeals (from defence or prosecution) but note that for the prosecution, appeal routes are limited and may involve arguing that a court decision was “Wednesbury” unreasonable (a decision no reasonable tribunal could have reached).

Q39. Great to have the MoJ here but I would also like to see the DPP here to understand their direction to CPS. This is what is really worrying investigators.

MoJ/CPS Answer: Although the DPP has not been directly engaged on this, the MoJ has been working closely with officials from the CPS throughout the process.

The issue that will be of concern to investigators is whether forensic evidence is reliable and whether the courts will allow that evidence to be admitted as a consequence of the FSR Act and statutory Code. That is also the concern of the CPS because part of the function of the CPS – as set out in the Code for Crown Prosecutors (in particular paragraph 4.8) – is to assess whether there is sufficient evidence to provide a realistic prospect of conviction. This means that prosecutors should ask themselves (amongst other things):

• whether the evidence can be used in court (is there any question over the admissibility of certain evidence and what is the importance of that evidence in relation to the evidence as a whole); and

• whether the evidence is reliable (is there any reason to question the accuracy or integrity of the evidence).

CPS is preparing legal guidance for prosecutors. The CPS Director of Legal Services has agreed that the CPS will not adopt a binary approach to admissibility (prosecutors should not dismiss potentially useful forensic evidence because it is not Code compliant) but should make a case-by-case decision about such evidence in accordance with the Code.^{[footnote 1]}

Accreditation questions

Q40. How will you deal with extension to scope that are currently being granted against v7 but almost immediately will be non-compliant with the FSR Act?

Answer: If a forensic unit successfully transitions from the FSR Codes of Practice and Conduct V7 to the FSR Code V1 before the 2nd October 2023 then unit’s schedule of accreditation will be updated to reflect this and will extend to all existing accredited forensic activities listed on the schedule.

Q41. How is UKAS capacity for inspections looking post October?

Answer: UKAS has recruited 6 new Technical Assessors for Incident Scene Examination in the past 12 months and we currently have 11 in training. UKAS are cognisant of the resource that will be required with the anticipated increase in extension to scope applications (ETS) resulting from the introduction of the FSR statutory Code. The 2nd FSR baseline compliance survey should inform our resourcing plans more accurately. UKAS will be requesting further information about each units’ plans. It would also assist UKAS if forensic units could keep their Assessment Manager informed of their ETS activities and timeframes for any applications they are intending to submit.

Q42. How well staffed and equipped are UKAS to accredit all forces across all FSA’s and over what timescales?

Answer: UKAS have a rolling program of recruitment underway and have onboarded 6 new Assessment Managers since September 2022 and have 3 additional trainee Assessment Managers joining with 2 in September and 1 in November 2023.

In addition we currently have 21 Technical Assessors in training across a variety of forensic disciplines. There are adverts on the UKAS website for Technical Assessors in the fields of forensic analysis of drugs and biology. The resourcing plans will be affected by the number and timing of ETS applications.

Q43. How will the relationship between the FSR and UKAS work in terms of ensuring interpretation of the Code is as intended and also in terms of national consistency?

Answer: UKAS has regular interactions with the FSR. The existing Agreement between the parties is being revised and this will facilitate information exchange and outline the enhanced respective obligations. The aim of the MoU is to ensure a strategic and effective operational relationship to facilitate effective regulation.

Q44. Given the similarities in process between volume and major crime scene investigation how are UKAS able to separate the two so cleanly in the master schedule?

Answer: This is under consideration by the Incident Examination Specialist Group and will be the subject of Incident Examination Specific Requirements that will be incorporated into the statutory Code. UKAS has developed its Master Schedule to reflect the activities and competencies it has assessed, taking into account the views of stakeholders. The original focus on volume crime was agreed with the NPCC Performance and standards group.

Q45. There are niche forensic science activities for which UKAS does not have technical assessors. Are there tangible plans for UKAS to be able to accommodate these?

Answer: Please refer to the response for Q41-42. UKAS is able to engage technical experts to work with Lead Assessors in niche forensic science areas.

Q46. What are UKAS doing to support the longer-term streaming and simplification of accreditation?

Answer: UKAS accreditation is delivered in accordance with international standards and guidance. UKAS continues to develop its processes to ensure they remain relevant and are efficient and effective and to consider new approaches taking into account, for example, the use of technology. In the absence of a specific forensic discipline to which this question refers the forensic and development sections within UKAS work together closely to progress the application of accreditation in new areas and this includes consideration of any efficiencies in terms of approach and cost which can be implemented.

Q47. Is transition being prioritised over existing ETS, as there are some in DF for example that have not been responded to since June 22?

Answer: UKAS, with the agreement of the FSR, is prioritising the transition from Codes to Code via a dedicated transition team alongside business as usual. Any concerns about the progress of any specific ETS applications should be highlighted to the forensic unit’s Assessment Manager in the first instance.

Q48. UKAS interpretation of the FSA’s- Fingerprint activity is considered as flawed by the community, when there are disagreements is there a route to arbitration?

Answer: This issue has been referred to the Regulator who will set out how the source of Friction Ridge Detail should be dealt with in respect of regulation and the requirements of the statutory Code including accreditation. Scopes of accreditation are based on what has been assessed by UKAS, taking account the application received and the agreed format in the master schedule.

Q49. When assessing the QMS system, will UKAS adopt a proportionate/pragmatic approach differentiate between small providers of niche FSAs v large organisations?

Answer: UKAS implements its processes in accordance with international standards and guidance and UKAS adopts a risk-based approach to its assessments. Factors such as size, complexity, scope, history and trends are taken into account when determining the best approach to take to assessments.

Q50. There is a national concern that UKAS are not providing a value for money service - when will UKAS address these problems?

Answer: UKAS is a not-for-profit organisation appointed by the UK government Department of Business and Trade and is self-financing. UKAS has previously benchmarked its fees alongside other similar sized accreditation bodies and has confirmed that its fees are comparable. UKAS continues to look for opportunities to improve efficiency noting that the most significant costs relate to personnel, both UKAS staff and contracted assessors to deliver assessments and supporting governance, administrative and technical activities.

Q51. Had consideration been given to the impact to victims of crime, considering the time it’s taken forensic units to work on the transition - in excess of 10,000 hours?

Answer: The time taken to complete and submit the transition template and supporting documents should be commensurate with the scope of accreditation held by a forensic unit however the approach and resultant time taken by units will depend on the gap between the requirements in the statutory Code compared with the units current policies and procedures.

Q52. For multiple incident scene examination locations, will UKAS have to visit every site or is there the option to visit a few and grant the rest?

Answer: The approach to assessment of multisite organisations is set out in UKAS publication GEN 1 (Appendix C). It is important to recognise the significance and risk associated with forensic science and the role accreditation plays in the statutory regulation. Once forensic units have reached a steady state with respect to multiple site accreditation following on-site assessment for the initial grant, UKAS can consider an approach where surveillance assessments are not required at every site.

Q53. OFSTED are now clearly under a microscope for the unfair pressure they are placing on head teachers what have UKAS learnt to avoid the same worrying outcome?

Answer: UKAS assessments differ from OFSTED inspections in a number of ways, for example UKAS does not provide a rating and only in exceptional circumstances conducts assessments at short or no notice; assessments tend to follow planned schedules and details of the scope of assessments are provided in advance. UKAS staff are trained in processes that contain a number of safeguards to protect the wellbeing of all those involved in assessments. UKAS proactively seeks feedback after its assessment activities and monitors the outcomes introducing improvements where needed.

Following the recent scrutiny of OFSTED, UKAS has discussed its practices further with its Policy Advisory Council to ensure adequate safeguards are in place.

Q54. If the IESG is still consulting on major crime scenes what expectation is there on forces to achieve major crime accreditation as per the UKAS master schedule?

Answer: This is under consideration by the Incident Examination Specialist Group and will be the subject of Incident Examination Specific Requirements that will be incorporated into the statutory Code.

Q55. If an FSA includes provision of opinions, is there a way for to achieve accreditation for those opinions if the unit doesn’t also conduct the associated test?

Answer: ISO/IEC 17025:2017 deals specifically with the requirements for the competence of laboratories performing testing and calibration and for the reporting of the results, which may or may not contain opinions and interpretation of the results. Hence UKAS does not accredit organisations to this standard for the activity of expressing opinions or interpretations alone.

Correspondingly, the provision of opinions and interpretations should not extend beyond those based on the results of tests within the accredited scope of the laboratory.

Further information can be found in UKAS publication Lab 13.

Where an FSA is or forms part of incident scene examination and is accredited under ISO/IEC 17020, the report may contain statements as a result of professional judgement, interpretation and or evaluation relating to the incident scene examination activity.

Costs

Q56. If the general public were aware of the millions spent by forces on accreditation as opposed to police on the streets, which do you think they would choose?

Answer: The Regulator hopes that the general public would want accurate and reliable forensic science evidence used in criminal investigations and criminal trials. From the interactions the Regulator has had with those who have been subject of a miscarriage of justice or a failure to prosecute individuals because the forensic science evidence was flawed they would strongly support the statutory regulation of forensic science. As the Regulator highlighted there was strong support for the regulation of forensic science and the underpinning Regulatory model across all of the respondents to the statutory consultation.

Validation work/proficiency testing questions

Q57. Will there be support or guidance for organisations that are required to undertake validation work for FSAs where ground truth data is not currently available?

Answer: The Regulator is keen to support and endorse the need for sound ground truth data and has supported initiatives to ensure this is available.

Q58. In order to ensure that proficiency testing is available for all FSAs, what tangible measures are being considered by the FSR?

Answer: The Regulator acknowledges that there is not effective proficiency testing across all forensic science activities that are subject to the statutory Code. This is why proficiency testing has been identified as a specific strand of work now the statutory Code has been approved and will come into force in October.

Q59. What’s being done to support the knowledge of the SAI’s from the office of the FSR?

Answer: The Regulator has engaged with Chief Officers and Directors both in terms of briefings and through emails outlining the background and provisions of the Forensic Science Regulator Act 2021, describing the implications for Directors and Chief Officers and how their accountability for leadership of forensic quality and managing risk is covered in the statutory Code. In Mar 2023 after the publication of the Code, the Regulator reached out to organisations seeking the identification of individuals who will undertake the role of SAI. The Regulator expressed an offer to have a discussion about the role and who should discharge it and has subsequently engaged with a number of SAIs. The Regulator intends to communicate with SAIs as and when required. In the Code the requirements of the SAI role are set out but the Regulator has avoided being over prescriptive or too detailed as the Regulator thinks this will constrain the strategic leadership that is required to ensure the effective regulation of forensic science. It is critical that the individual who undertakes the SAI role has the empowerment and authority to allocate and draw on resources and instigate change that enables compliance with the Code and the management of risk.

Appeals process

Q60. Can the regulator assure that the appeals process will be wholly transparent and independent. Would they consider forming an ombudsman?

Answer: There are no plans to establish an ombudsman the provisions in the FSR Act as s8 give a judicial route to appeal against the serving of a Compliance Notice.

Incident Scene Examination

Q61. Where is DVI on the FSR timeline, specifically as it relates to scene examination?

Answer: The Regulator would only get involved in DVI work if this was part of a criminal investigation or proceedings, the Regulator has no jurisdiction over the Coroners or Civil courts. There are no plans to introduce specific quality standards or requirements for DVI work.

MOJ presentation questions

Q62. Will there be a process to review cases where evidence is declared inadmissible?

MoJ Answer: In England and Wales, there are several methods of appeal that are available to parties involved in criminal court proceedings in order for them to contest certain decisions. These methods will continue to be available after 2 October 2023.

For example, one of these methods is ‘appeal by way of case stated’ (see Part 35 Criminal Procedure Rules (CrimPR) 2020), which is available to both the prosecution and defence. This method is reserved for appeals relating to matters of law for consideration by the High Court (for example, where it was argued that a magistrates’ court or the Crown Court has incorrectly interpreted or applied the law with regards to the admissibility of a piece of forensic evidence).^{[footnote 2]} Where an application to appeal by way of case stated is granted by a magistrates’ court or the Crown Court, the High Court will then proceed to review the case and is able to reverse, affirm, or amend the contested decision before sending the case back to the lower court.

Other methods of appeal that could be invoked following a ruling that a piece of forensic evidence was inadmissible also include: appeal against a ruling at a preparatory hearing (see Part 37 CrimPR); prosecution appeal against an adverse ruling (see Part 38 CrimPR); or, for a defendant whose forensic evidence was excluded, appeal against conviction (see Part 34 or 39 CrimPR).

Q63. Forensic Evidence Risk Matrix; how can we be confident that this matrix will be effectively communicated and understood by prosecutors and defence?

MoJ Answer: With regards to the prosecution and as previously referenced above (see answers 31, 32, 33 and 36), the CPS is preparing guidance for prosecutors on the approach they should take to evidence that is non-compliant with the statutory Code when charging and reviewing cases. This guidance will include an assessment of risk, which is intended to be along the lines of the Risk Categorisation Model (RCM) that is being developed by MoJ. Once again, it is important to stress that each case will need to be considered in accordance with its individual circumstances.

With regards to the defence and as previously referenced about the prosecution above (see answer 62), the defence will also be concerned to ensure that forensic evidence is reliable and whether the courts will allow that evidence to be admitted as a consequence of the FSR Act and statutory Code. Furthermore, the defence are duty bound to challenge evidence that their client does not accept, even if it is fully compliant with the statutory Code. Should the CPS decide to use the RCM as part of any risk assessment process, this will be publicised in their guidance, therefore, the RCM and information about its use will be readily available to defence practitioners.

Q64. How will the risk matrix be applied when there is a mix of evidence included in the same report - some of which is subject to the Code and some of which is not?

MoJ Answer: From 2 October 2023, all forensic science providers reporting on any forensic science activities (FSAs) that are subject to the Code will be required to declare/disclose their compliance/non-compliance with the Code in reports intended for use as forensic evidence in criminal proceedings in England and Wales. For non-compliance, the forensic practitioner will need to outline which aspects of the FSAs were compliant with the Code and which weren’t (including details of steps taken to mitigate this) in an accompanying annex. The Regulator’s Office will publish guidance for drafting these declarations and accompanying annexes in due course.

For FSA that is not subject to the statutory Code, forensic practitioners will not need to provide a declaration of compliance with the Code. However, forensic practitioners should, for the benefit of the courts, declare where the Code does not apply in these circumstances. Furthermore, forensic practitioners will still need to provide all the usual information in their report about the FSA (that is not subject to the Code) and adherence to any other applicable prescribed standards/codes in accordance with the Criminal Procedure Rules (CrimPR) and Criminal Practice Directions (CrimPD).

Whilst the RCM is primarily being designed to assess reports produced using FSA that is subject to the Code, numerical tier 0 and alphabetical band X are included to capture the use of any FSA that is not subject to the Code. For FSA not subject to the Code, the CPS will continue to review the forensic report – as they do now – in consideration of the relevant common law, CrimPR, and CrimPD.

With regards to a mix of evidence included in the same report (some of which is subject to the Code and some of which is not), we would expect that report to include a declaration of compliance/non-compliance for the aspects of the FSA that were subject to the Code and the usual information required for the aspects of the FSA that were not subject to the Code. Afterall, the courts and all the parties to the proceedings would need and expect this information.

Therefore, in theory, it should be possible to categorise and assess each aspect of the FSA that was conducted to produce the report in order to assist the CPS (or others) to understand and complete an overarching risk assessment of the contents of the report.

This is something we will continue to bear in mind during ongoing development of the RCM and the CPS are also considering this as part of their legal guidance. Work is currently underway to produce a V3 Prototype RCM (including the addition of a user guide). This prototype will be subject to a series of practical tests by CJS stakeholders and operational practitioners using a number of forensic science reports (edited as if they were written post 2 October 2023) ahead of the model’s finalisation. We will ensure the test includes mixed evidence reports to ensure the model and guidance can be adequately tuned to accommodate this.

Q65. The development of the RCM will need some care to ensure it doesn’t drive the wrong behaviours during case management?

MoJ Answer: The ongoing development of the RCM is currently focussed on creating a tool for internal use by investigators and/or prosecutors to provide them with an initial indication of the inadmissibility risk at key stages of the case progression process. For example, when a forensic report is reviewed by the police before making a Crown Prosecution Service (CPS) referral; and/or when a report is reviewed by CPS to make a charging decision.

The model is intended to function as a standalone tool to help investigators and prosecutors decipher and rationalise all the information that must be included in a forensic report with regards to compliance with the Code; and then accordingly provide them with an initial indication of the inadmissibility risk for further consideration on a case-by-case basis in accordance with bespoke internal guidance. This accompanying guidance should ensure that it does not drive the wrong behaviours during case management.

Q66. Assuming the RCM scoring is disclosable as unused material, we may as well support the scoring in the first findings reporting phase.

MoJ Answer: As previously addressed above (see answer 35), it is arguable whether any scoring and/or further consideration of this in the context of the case by a prosecutor (or indeed any other) using the RCM would be disclosable as unused material capable of undermining the prosecution or assisting the defence. This is because all the information used to calculate the score and identify any issues would be disclosed to the defence anyway (and in far greater detail) via service of the expert report (including the declaration of compliance and, where applicable, the accompanying annex detailing steps taken to mitigate any non-compliance).

The Criminal Procedure Rules also provide that in serving an expert report, it should be accompanied by a “notice of anything of which the party serving it is aware which might reasonably be thought capable of undermining the reliability of the expert’s opinion or detracting from the credibility or impartiality of the expert…”. So, any issues that could undermine the prosecution or assist the defence should continue to be clearly signposted to the defence via the usual channels.

Nevertheless, this is something that we will continue to bear in mind during the ongoing development of the model and that the CPS will carefully consider as part of their legal guidance.

Q67. If evidence is inadmissible due to not having the Code is there danger of a National accredited service, taking staff from unaccredited organisations to work.

MoJ Answer: Section 4 of the FSR Act states that “a court may in particular take into account a failure by a person to act in accordance with the code in determining a question in any such proceedings”. Although the text at section 4 does not specifically reference a lack of accreditation, this factor will highlight to a court that a forensic science provider may not be acting in accordance with the other requirements of the Code and its prescribed standards.

That being said, a lack of accreditation does not automatically mean that a piece of forensic evidence will be ruled as inadmissible, and this inadmissibility risk can be mitigated by the forensic practitioner effectively demonstrating ‘other commitment’ to the prescribed standards (i.e. the statutory Code). For example, by describing in the accompanying Annex of the report what steps they have taken to mitigate non-compliance with the Code and to ensure the quality of the evidence.

It should be noted that in the current forensic environment there have been situations where laboratories have had their accreditation status suspended by UKAS due to quality failings, which has put their operations at risk. So, whilst this is a theoretical risk, it is not a new one. Furthermore, there is a system in place for forensic practitioners to provide information to mitigate the risks to quality associated with non-compliance with the Code due to lack of accreditation.

Fingerprints

Q68. Has the national debate on friction ridge detail highlighted the national concern that UKAS are not the technical experts?

Answer: see Q50 This issue has been referred to the Regulator who will set out of how the source of Friction Ridge Detail should be dealt with in respect of regulation and the requirements of the statutory Code including accreditation.

Training

Q69. Will the FSR work with the CoP to inform and improve training for front line policing to support the improvement of forensic awareness and practices?

Answer: The Regulator is keen to work with the CoP on any aspect of the regulation of forensic science but does not have a direct involvement in training or improving the forensic awareness.

FCN questions

Q70. All sources of support mentioned are specifically for police forces/LE. What support is available for smaller businesses and other organisations?

Answer: The Forensic Capability Network (FCN) is Home Office funded to support the forensic capabilities of police forces in England and Wales. There are some support opportunities open to other organisations such as access to materials and information available via the FCN website, but our primary purpose is to support police forensics.

Q71. How many forces would acknowledge that the FCN has made a meaningful contribution to attaining and maintaining their accreditation?

Answer: Attaining accreditation for forensic science activities in any organisation is complex and requires a significant amount of effort and leadership. Where that local effort can be supported by drawing on other resource, knowledge, and experience that should be welcomed. Equally where a centrally co-ordinated approach can, and is, reducing local abstraction and influencing requirements to ensure compliance can be demonstrated in an effective and efficient way, that benefit is being felt across policing and wider criminal justice system. This has resulted in the FCN receiving much feedback from many forces that recognise the positive contribution we have made on their accreditation journey.

Q72. Is the FCN going to be able to put the same level of effort and input into the new FSA areas as they have with SARC?

Answer: The FCN will continue to focus on supporting policing’s response to key forensic priorities, particularly where national co-ordination is required and is beneficial. A national collaborative approach to address the regulatory requirements provides a consistent and efficient way for policing to achieve compliance and we are supporting that approach in other areas beyond SARC too. Requests for similar support in new areas should be put forward to the NPCC Forensic Portfolio Board for consideration in our future delivery plans.

Q73. Does the FCN make the ground truth data available outside of police forces for the wider Forensic market to use?

Answer: The Forensic Capability Network (FCN) is Home Office funded to support the forensic capabilities of police forces in England and Wales and as such our Ground Truth Data is not currently available outside of Home Office organisations or agencies but we are looking at different opportunities should our operating model allow it in the future.

Q74. What’s the FCN plan for Fire Investigation this year?

Answer: The Fire Investigation project will be in place again shortly with the focus on supporting Policing and Fire Investigation Units to establish an effective means of meeting the Regulators requirements for Forensic Fire Investigation. This includes working with the whole community across policing, fire and rescue services, expert networks, regulators office, and others to understand next priority areas for centrally coordinated and delivered activities.

Q75. Is there an intention for centralised validation services to be made accessible nationally - including industry as well as police forces? Is this the FCN’s aim?

Answer: As Q73 above our current remit is to support policing organisations but if our funding and operating model where to change in the future this is something we might explore.

Fire scene investigation

Q76. When will fire scene investigation be incorporated into the code?

Answer: a date has not yet been set to make fire investigation subject to the statutory Code. The Regulator is working to a target of three years for the next tranche of forensic science activities to be made subject to the Code, it is hoped this will include fire investigation.

Defence scientists questions

Q77. Realistically how set up and prepared are defence lawyers in terms of potential future challenges at court?…are we capturing their views?

Answer: see answer for Q78.

Q78. The majority of discussions seem to be based on issues relating to prosecution. What dialogue occurring with legal professionals/experts instructed by defence?

Answer: The Regulator engages with, amongst others, the Chartered Society of Forensic Sciences (CSFS) and the Ministry of Justice (MoJ). We also understand that officials from the MoJ are engaging with the Judicial Office, Criminal Procedure Rule Committee, and Law Society with regards to raising awareness of the Code. Furthermore, both the CSFS and Law Society are members of the Home Office Forensic Reform Programme Board, which regularly engages its members on the FSR Act and incoming Code.

Q79. Why are defence scientists allowed to use a loophole to compare DNA Profiles on paper without accreditation. It is an FSA

Answer: If a person is undertaking a forensic science activity including any of the sub activities that is subject to the Code then they will need to make a declaration of compliance or not with the Code. The Regulator has defined casework review as a forensic science activity but this is not yet subject to the Code.

Q80. Will the FSR issue guidance on the statutory requirement pertaining to defence scientists with regards to case review/repeat testing at the ‘Pros’ Lab?

Answer: section 41 of the statutory Code sets out obligations for defence examinations. See also answer to Q79.

Q81. Does the FSR think it may be helpful to explicitly acknowledge the important role played by defence examiners who can be the first to spot operational failures.

Answer: The Regulator is well aware of the independent experts who act for the defence and the role they play in highlighting issues, there are currently several referrals that have been made by independent experts and the Regulator actively encourages this.

Footwear

Q82. What’s the view for intelligence screening (e.g. footwear)? Practitioners feel this is operational decision making with risks held by those screening/triaging.

Answer: The purpose of the regulation of forensic science is to ensure that accurate and reliable forensic science evidence is used in criminal investigations and proceedings. Any forensic examination for intelligence or other purposes needs to produce results that can be relied on, the Regulator has seen many examples of “intelligence only” results that have been flawed and had serious consequences denying justice or resulting in a wrongful conviction.

Digital forensics

Q83. What is the FSR’s view on tools such as ADF triage used by POLIT teams? Will they need accreditation - even if used for intelligence/screening purposes only?

Answer: Such teams appear to be performing FSA DIG 100; the FSA explicitly includes screening of a digital storage media for a decision on seizure or prioritisation (e.g. using a triage software tool). The FSR Act 2021 includes investigation and the Code does not differentiate between intelligence and activity intended from the onset to be used in the CJS.

Q84. How well does the NPCC Framework for video fit with the Code and is there any leeway for other areas to take a similar approach?

Answer: The NPCC framework specifies standard published ways of work and sets specific training requirements to cover certain basic recovery and processing activities which means that the forensic science activity is included in the Code. The Regulator will however expect the level of take up of training and compliance to be assessed periodically and should the pragmatic approach not be taken up in the manner expected (e.g. required training not taken-up), then a formal compliance mechanism such as accreditation may be considered again in the future.

A framework approach for footwear is included in the Code. The Regulator will consider any tangible approaches to control risk in forensic science activities where the level of technical competence is relatively low. However, the development of such frameworks and the underlying Approved Policing Practice and training courses takes a considerable period of time so the potential of a future alternative should not be used as a reason for not implementing the requirements set out in the statutory Code.

Q85. If police are using triaging systems, how are defence companies (financially/practically) going to be supported in 17025/20 so full extractions can be obtained?

Answer: Officers should follow reasonable lines of enquiry in deciding on seizure of devices, prioritisation of examination of such devices and/or whether selective extraction or full extraction is warranted. Both the prosecution and the defence will need to actively engage in early case management to ensure that if a selective extraction was identified as inadequate given the case circumstances there is potential for it to be remedied.

However, the Code does not differentiate between those forensic units instructed by the prosecution and the defence, all those performing the FSA or part of the FSA are expected to comply. The Regulator will endeavour to ensure any schemes such as collaborative exercises are open to all forensic units so they can achieve and maintain compliance.

Q86. When software tools are found to be flawed, is there a route to sharing this in the forensic community?

Answer: All software tools intended to extract data from devices are playing catch-up with the diversity of target devices, security settings and applications.

Reports of flaws are often due to this capability catch-up, they are sometimes found to be user errors, however occasionally genuine flaws are identified. Currently when the Regulator is made aware of tools behaving in an unexpected way, unless it is already clear the software vendor has notified their customers, the Regulator will consider if it is appropriate to notify all users known to the Regulator. Typically, as policing makes up the bulk of users, the Regulator will liaise with FCN who have the technical knowledge to ensure if forces are to be notified any central assistance or information will be also provided. For example, FCN will typically engage with the software vendor when issues arise. If the Regulator believes all users require a notification and the engagement with the software vendor has not prompted a notification to its customers, the Regulator will look to directly notify users.

The Regulator will consider maintaining a fuller list of all the tools used by forensic units within its compliance survey work, and should a suitable portal which allows equal access to policing and commercial users to share such information it will be considered.

Q87. Regarding validation of the digital tools. How is ongoing validation to be managed specifically when tool updates are implemented and to cover new phone models?

Answer: Methods are validated not tools, and the ongoing validation is managed by the forensic unit using the method. The forensic unit is required to have a procedure for controlling the inevitable updates to the tools within methods through verifying that such changes do not identify that the method requires validation.

Firearms classification

Q88. Firearms classification: when triaged in force why does it need to be verified by an accredited supplier with 72 hours? This will cost and be pressured.

Answer: The current Codes of Practice and Conduct require that all firearms legal classifications are undertaken by an accredited provider whether subject to triage or not. The Regulator has made provision in the statutory Code for an initial classification for the purposes of remanding in custody including timescales to mitigate the risk that a person is unjustly remanded in custody.

Q89. How will an SAI put in a request to undertake firearms triage in house?

Answer: The statutory Code sets out that the SAI should make an application to the Regulator to put in place the provisions of an initial classification where a remand in custody is required. The Regulator intends to publish some general guidance on this process but the elements of it are set out in the Code and should be used as the basis of making an application.

AI Forensics

Q90. Given that government plans to place the regulation of AI onto existing regulators, does the FSR have tangible plans re regulating the use of AI in forensics?

Answer: Wherever AI is used in forensics, it needs to be regulated and the FSR will work with the specialist groups to decide on its effective regulation. To date the FSR does not have any ongoing activities in regulating AI.

Forensic Collison

Q91. Does the regulator acknowledge the difficulty in regard to forensic collision falling underneath both 17025 and 17020 with different compliance dates?

Answer: The Regulator has set up a Collision Investigation subgroup specifically to look at the challenges of compliance for Collision Investigation, including speed estimation from CCTV. The Regulator acknowledges the important work of the FCIN who has prioritised speed estimation as a result of the requirement for compliance from October and is delivering competence assessments to assist with providing mitigations for non-compliance.

1. Excepting fingerprints and DNA given the provisions of SI No. 1276 of 2018 and the Accreditation of Forensic Service Providers Regulations. ↩

2. The power to appeal against the decision of a magistrates’ court by way of case stated is provided under section 111 of the Magistrates’ Court Act 1980. For appeals against the decision of the Crown Court by way of case stated, the power is provided separately under [section 28 of the Senior Courts Act 1981.](https://www.legislation.gov.uk/ukpga/1981/54/section/28#%3A%7E%3Atext%3D(1)Subject%20to%20subsection%20(%2Copinion%20of%20the%20High%20Court) ↩