Adrian Foster is Chief Crown Prosecutor, CPS Thames and Chiltern, one of 14 regional chiefs across England and Wales. He also has responsibility for forensic science.
I hope it will help if I begin by explaining something about the role of the CPS in the commissioning of forensic work in criminal cases.
In short, we do not really have one; prosecutors are recipients of forensic work not commissioners of it. That is something of a simplification but in England and Wales it is the police and other investigators who commission and pay for forensic work in the investigation of criminal offences. The police choose what to submit and who to submit it to.
I know we are hearing from Tom Nelson later and it is worth mentioning that in Scotland the relationship between the police and their prosecutors, the Crown Office and Procurator Fiscal Service (COPFS) is rather different. In Scotland prosecutors have the power of direction over the police and together they operate a forensic gateway, a joint approach to forensic submissions.
In England and Wales – the CPS cannot direct the police. Prosecutors can advise and assist, query and prompt, but cannot tell the police what to do.
The Code for Crown Prosecutors says:
The police and other investigators are responsible for conducting enquiries into any alleged crime and for deciding how to deploy their resources. This includes decisions to start or continue an investigation and on the scope of the investigation.
Prosecutors often advise the police and other investigators about possible lines of inquiry and evidential requirements, and assist with pre-charge procedures. However, prosecutors cannot direct the police or other investigators.
In some cases – mainly serious, sensitive or complex cases – the police do seek guidance and advice at the investigative stage and that can include advice on a forensic strategy. Although the police will normally choose to follow that advice it is ultimately a matter for them to decide as to how to deploy their resources.
The Code for Crown Prosecutors provides that the decision to prosecute should be made when the investigation is complete.
Given that the police decide when that point has been reached that is effectively a police only decision unless prosecutors can persuade investigators that investigative work should continue.
The fact that prosecutors cannot direct police action is not necessarily a bad thing; prosecutors are lawyers not trained investigators, and not scientists. But sometimes a prosecutor’s casework experience may provide them with knowledge some investigators lack.
Yes like some police officers, some prosecutors may want every possible forensic submission made to put guilt well beyond reasonable doubt.
And like some defence lawyers, some prosecutors may want every possible forensic submission made to check it is not potentially undermining of the prosecution case or capable of assisting the defence case.
The best prosecutors speak with the investigators and forensic scientists to proportionately build a sound case that meets the issues raised.
The problem is that at the start of a case, prosecutors and investigators may have little idea what the defence case is going to be. No comment responses in police interview are still common. A suspect with photographs on his mobile phone that help prove his innocence does not have to tell the police about those photographs.
And it is understandable that the police will be reluctant to spend money on forensic submissions to cover every potential issue when that may prove to be unnecessary. For example, the suspect might later admit presence at the crime scene, once overwhelming proof has been put to him.
The emphasis should always be on investigating all “reasonable lines of enquiry”. That includes evidence which both proves the guilt of the suspect and evidence which points to their innocence.
I have already mentioned the Code for Crown Prosecutors.
As prosecutors we have to determine whether there is a realistic prospect of conviction on the evidence available on each charge or count on the indictment, and if there is, decide whether such a prosecution would be in the public interest.
In the context of forensic evidence it is worth mentioning the issues prosecutors consider in determining whether there is a realistic prospect of conviction in any case.
Prosecutors are invited to consider 3 particular issues, admissibility, reliability and credibility:
Can the evidence be used in court? With forensic evidence this can include the issue of expertise. Prosecutors will be looking at part 19 of the Criminal Procedure Rules, the Criminal Practice Direction and the expert’s declaration.
The Regulator’s Code of Conduct is obviously relevant here as the court will want to bear the Code in mind when considering the admissibility of evidence.
Can the evidence be relied on? Is there any reason to doubt it?
If it’s DNA evidence for example what about the possibility of contamination. The reliability of one single piece of evidence becomes more significant if that is the main or only evidence against a suspect.
Is the evidence credible? Is the witness telling the truth? I would hope that in the case of forensic science the issue of credibility would be rare, but it is something we have to consider.
The setting of standards and accreditation will obviously help all 3 of these issues.
Great progress has been made in case management over recent years. Transforming Summary Justice (TSJ) in the magistrates’ courts, Better Case Management (BCM) in the Crown Court and the changes introduced by the Criminal Procedure Rules have all had a positive impact.
The greater use of live links means witnesses including experts do not always have to travel to court to give evidence. In a recent dip check we found that only 50% of expert witnesses actually gave evidence when warned for court so the ability to give evidence from a location close to work is a huge benefit.
But as many of you here will doubtless attest, case management does not always work as it should. There are still problems with late requests for expert evidence and court attendance, and case management issues that remain unresolved before trial.
So what are the challenges?
Experts are still being warned to attend court having previously prepared a streamlined forensic report, an SFR1, not an SFR2 or a full witness statement.
The CPS has issued guidance about this but the problem persists.
Another issue may be that, in the magistrates’ courts in particular, the court will usually insist on fixing a trial date at the first hearing, even in cases where the police and the CPS were expecting a guilty plea and do not have a trial ready file available to case manage.
At that time there may only be an SFR1 and the defence obligation under Criminal Procedure Rules (CrimPR 19.3) to state what is in issue may only be dealt with at court. With a trial date fixed straight away that may lead the CPS and the police to warn witnesses even if they have yet to provide a statement or SFR 2 to avoid problems with the trial date.
By way of example I will mention a recent case that Jeff Adams from the Regulator’s Office drew to our attention.
I should say by way of background that this was a straightforward drink drive case. I say straightforward because the police reasonably anticipated this would be a guilty plea.
Bar staff had telephoned the police to report a customer driving away from their bar after she had been refused further alcohol because she was drunk.
The police arrested the defendant on her driveway a short time later. The breath test machine provided two very different breath readings (86 and 101 as against the limit of 35) so blood was requested and tested (218 milligrams as against the blood limit of 80). The charge relied on the blood reading.
The defendant accepted she had been driving and that she had consumed alcohol (but she said she only had 3 glasses of prosecco).
At the first hearing in the magistrates’ court the case was listed in the guilty plea court but the defendant entered a not guilty plea and a case management hearing took place there and then.
The defence completed the case management form (Preparation for effective Hearing PET Form) and they said the issues in the case were these:
- Whether decision to take blood sample complies with statutory procedure
- Whether the manner in which the sample of blood was taken is compliant
- Issues of automatism/spiked drinks/involuntary intoxication
- Ability to understand and comprehend statutory warning and intoxilyser procedure
- Whether the blood sample was analysed properly including issues of continuity and storage
- Documentation in relation to intoxilyser error
- CCTV from custody office, intoxilyser and blood procedure
- Witness statement from healthcare professional
- Full toxilogical report in relation to the blood procedure
- SFR1 is not agreed
- Service of the analytical data that forms the basis of the report
- Continuity evidence in relation to the blood sample
And the defence requested the attendance of 8 prosecution witnesses including the unknown healthcare professional who took the blood sample and the unknown expert responsible for the blood analysis.
And the court made the following direction:
Trial date fixed 12 weeks later – with 14 days for the prosecution to apply to vacate if any of their 8 witnesses could not attend (the prosecutor probably did not have dates to avoid for an anticipated guilty plea case)
A case management hearing before a District Judge 7 weeks later.
Not a lot of case management there – everything is still in issue – the prosecution have to warn 8 witnesses, 2 of whom are as yet unidentified. And a list of requests from the defence that the court has not commented on and that the court will later expect the prosecution to have ‘dealt with’ because the defence will not agree anything until their list is dealt with in its entirety.
To be fair the court at a later hearing did reduce the witness numbers to 4 but having managed to supply almost everything on that list of requests, the prosecution and the police did not get the SFR2 served until shortly before the trial and the case failed
The defendant was going to give evidence she had not drunk enough alcohol to put her over the limit. Thus her case was the blood test analysis must be flawed.
Or as the prosecution would say the defendant was mistaken as to what she had drunk or was simply not telling the truth.
But automatism? Laced drinks? A lot of red herrings were raised here. And the court and the prosecution together should have dealt with this case more robustly, pushing the defence to narrow the issues.
So cases do go wrong still but many more cases like this have come before the courts and have been effectively case managed. Some of you may have seen the judgement of Senior District Judge Riddle in the Danny Cipriani case in June 2016 .
The Criminal Procedure Rules have effected a sea change to the way cases are to be conducted. The parties are required to abide by the Rules. This case, where almost everything was challenged or put to proof (even the identity of the driver), has an antique air about it.
In future, drink driving cases cannot be conducted in the way that this one was. All parties including the court have an obligation to ensure that only relevant and contested issues require evidence. Here this court acknowledges its own failings. It should have ensured that the precise nature of the challenge to the MGDDA procedure (the drink drive procedure) was spelt out at the case management hearing.
It is in the interests of all that summary trials concentrate on the real contested issues and do not descend into a game of smoke and mirrors.
And in the High Court Lord Justice Irwin in the more recent case of Hassani quoted the Cipriani case and said:
The criminal law is not a game to be played in the hope of a lucky outcome, a game to be played as long and in as involved a fashion as the paying client is able or prepared to afford.
The District Judge practised firm case management in this case. He was absolutely right to do so. Other courts faced with this kind of approach must do the same, whether the court is constituted by a professional District Judge or by lay magistrates. Courts must consider the Criminal Procedure Rules, which are there to be employed actively so as to preclude game playing and ensure that the courts only have to address real issues with some substance.
It follows from the above that experts instructed by the defence will need to know what the defence accept and what they do not. At the time of the first hearing the initial details of the prosecution case provided to the defence may well be limited especially where a guilty plea is anticipated. Even in ‘not guilty’ plea cases issues such as continuity will not be covered.
In the magistrate’ courts, the time between charge and first hearing is limited. Courts expect to progress cases by fixing a trial date at the first hearing but the defence may have had little time to consider their own case. That may be why in some cases the case management form raises every conceivable issue just in case one of them might apply. There must be a needle in that haystack, please search it.
But in many cases the defendant will be able to identify the material they want at an early stage. As I mentioned earlier if the police have seized the defendant’s mobile phone that contains photographs the defendant says exonerate him then providing that information at an early stage will assist the court, prosecution and investigators in effective case management.
If that information comes through many months after charge, perhaps in a Defence Case Statement shortly before the trial this may trigger late requests for further investigation, further statements and court attendance.
The Attorney General is currently reviewing the law on the disclosure of unused material and it will be interesting to see what comes of that. I understand that he is due to report in the summer. We must remember the distinction between unused material and the evidence (the used material) but one area which might require further thought is whether trial dates should be routinely set before the defence case is clear, especially when disputes remain as to forensic evidence.
Dr Tully (The Regulator) in her latest annual report says that “there is an ongoing risk that quality and quality standards are not fully understood across the CJS”.
From the perspective of a lawyer in the criminal justice system it is hard to disagree with that statement. All evidence is scrutinised by prosecutors, the defence and the court and considered as to its admissibility, reliability and credibility. That is as true of scientific evidence as it is of the evidence of complainants and eye witnesses.
But much scientific evidence and expert evidence in particular is as to issues that are outside the knowledge of most lawyers.
The issue of admissibility is usually addressed through the expert declaration contained in the Criminal Practice Direction and required by the Criminal Procedure Rules.
It is ultimately a matter for the court as to whether evidence is admitted but the presence of the declaration will often be the first thing that courts and prosecutors look for in cases involving experts.
It is the issue of reliability that is often the most significant factor. I include within the issue of reliability the question of how much weight should be attached to a piece of evidence.
As I mentioned earlier the CPS does not usually commission forensic evidence, we rely on the police and their choice of expert or forensic science unit. The CPS does not maintain a list of approved experts to check against the police choice and we do therefore rely on the police to choose wisely.
When considering defence expert reports we are normally looking at responses to prosecution experts and rely on comments from ‘our’ experts and police investigators as to the reliability of the defence expert.
The adversarial nature of our criminal justice system, the burden and the standard of proof all operate as checks and balances on the quality of forensic evidence, particularly when relied on by the prosecution.
The right of appeal is another safeguard but as recent events have shown us relitigating old cases is an unsatisfactory remedy for defendants who were convicted of offences based on flawed forensic evidence.
But there remains a risk that that unsound science could be accepted as expert evidence as it has been in the past. Defence lawyers seeking expert evidence cannot rely, as prosecutors do, on police ‘vetting’ and obviously cannot instruct police forensic units either.
Police contracts with forensic science providers can stipulate compliance with the Regulator’s Code of Conduct and accreditation where that is available but the defence community, instructing experts on what can often be an ad hoc basis may be unaware of the Code and accreditation. It would be right to say that at present knowledge of the Regulator’s Code is not as widespread in the legal community as it should be.
Statutory powers for the Regulator do offer an opportunity to increase awareness of the Regulator’s Code of Conduct across the criminal justice system; to courts, prosecution and defence.
We are going to have to wait and see how the courts respond to statutory powers and what follows can only be speculation for now.
The admissibility of expert evidence will remain an issue for the courts; and the courts may wish to admit evidence from the defence or the prosecution in spite of some degree of non-compliance. That may well depend on the nature of the non-compliance and the significance of the evidence.
The reliability of any evidence and the weight to be attached to that evidence are likely to be affected by non-compliance, particularly if the evidence is crucial or uncorroborated.
So in conclusion TSJ, BCM and the changes to the Criminal Procedure Rules have significantly improved case management in the magistrates and Crown Court. However, there are still problems to be overcome in case management and forensic evidence.
The days of trials with every witness and police officer in attendance have gone. In the area of expert evidence much has been achieved but the good practice exemplified by cases like Cipriani and Hassani has yet to spread so that it is applied in every case.
It is the role of every prosecutor to make sure that happens.