The Rt Hon Sir Brian Leveson is President of the Queen’s Bench Division and Head of Criminal Justice.
I am grateful to Dr Tully for inviting me to speak to you today and I was particularly heartened that the focus of today’s conference is a system approach to quality. Those that have heard me speak before will know that I believe that it is difficult to talk about criminal justice in terms of a system – singular. It is all about the interrelation of different systems – the police, the CPS, the defence community as well as the courts and the judiciary – and on matters such as expert evidence we must ensure that all parts of the criminal justice system play their part. That is why I am delighted that today you have been able to hear speakers that will come to the issues from different perspectives. It is only through this understanding of the pressures and viewpoint of others in the system that we will be able to think about how best we can support and protect the use of scientific evidence in a way that will benefit criminal justice as a whole.
In 2014, I undertook a review into efficiency in criminal proceedings, publishing the report in early 2015 and I ensured that I captured all those different perspectives. One of the areas I looked into was expert evidence – so what did I find and how have we moved on since?
As I speak to you today the backdrop of working in criminal justice has not got any less challenging than in 2015. Indeed, it is more so. Yet, relevant to expert evidence, for about the last decade or so, criminal justice has suffered from what I call the CSI effect. People watch TV and expect that every criminal case can be solved under a microscope – and that science and forensics are the panacea – every case can be resolved if only there is forensic evidence that can be analysed. We know that is not the case but it puts pressure on the system and on the need for a robust form of triaging what requires forensic input and what does not. This requires professional experience from a police officer sufficiently experienced to recognise the risk of missing critical evidence, such as the identification of whether a particular death is suspicious and requires forensic analysis to identify a potential homicide.
Funding was an issue in 2015 when I did the review and is still an issue – things have not got any easier. There has undoubtedly been significant cost pressure on forensic science and legal aid budgets, which can have an impact throughout – it impacts on access to time and facilities for professional development, and can lead to reduced access to expert advice (of any sort, let alone quality assured) for the defence. It has undeniably led to a real problem in the provision of forensic services which has manifested itself in problems which you will all know about. How the various issues which forensic science services now face will be resolved is not for me to identify today but it is appropriate that I express my gratitude to all those who have stepped up to the plate and assisted in the resolution of the provision of services to such extent as they can.
I said in my review there is an irreducible minimum of funding below which the criminal justice system cannot operate. We must therefore be vigilant that we continue to petition for the right funding in the system to enable us to do our jobs – but given that the reality is there is no large pot of money available at our disposal I wanted to look at what we can do within those constraints – what fundamental things ensure effective case-by-case scrutiny of scientific evidence in courts?
It is critical that when forensics are considered appropriate in a case, there is a clear and well-honed procedure to ensure that we can get the work done as efficiently as possible.
Scientifically rigorous but accessible forensic science matters. Unfortunately, over the last year – headlines that scream out words such as “unreliable” and “manipulated” in relation to high profile problems with specific firms – mean that the regulator has never been more important or relevant in ensuring that the public and all involved in the court process, can be satisfied that there is a sufficiently reliable scientific basis for the evidence to be admitted.
I am sure that Dr Tully, in her opening remarks, has been through increased requirements for compliance with standards in the revised code of conduct she issued in October last year. I don’t want to go over any detail of that again but I do want to use this opportunity to emphasise again the importance of compliance. That is compliance – both with the Regulator’s codes of practice – and with the criminal procedure rules and practice directions on which I will now focus.
As those of you who are experts with experience of the courts will know – there is an interrelation between the Regulator’s code and the Criminal Procedure Rules and practice directions and both are essential.
When I undertook the review there were problems that I came across in relation to experts who felt that they were under pressure to alter reports perhaps by omitting one sentence or including another in a way that damaged impartiality. I wanted to ensure that the overriding duty to the court was clear – and I am very pleased to see that the very first duty that is set out in the Forensic Science Regulator’s codes of practice and conduct is that, as a practitioner, you must recognise that your overriding duty is to the court and to the administration of justice. A lot of problems could be prevented if that became a mantra for practitioners.
I would like to focus further on this duty and recommend that greater emphasis should be put on the obligations that were contained in the Criminal Procedure Rules, not only for the expert to provide quality assurance that the opinion has been prepared objectively with a view to the overriding duty to the court, but also to ensure the court is informed of any significant change of opinion and the reasons. As a response to this, practice directions were issued in November 2016 about expert evidence which prescribed, for the first time, the terms in which an expert witness should make the statement and declaration required by rule 19.4 of the Criminal Procedure Rules. In consultation with the Regulator we have made some changes to these declarations to ensure that they work better for experts. I urge you all to go back and read part 19 of the Criminal Procedure Rules and practice directions. In part 19 there is clear and helpful information about admissibility, the expert’s duty and pre-hearing discussions of expert evidence.
We know that compliance with the Rules and practice directions is not always where we would like it to be. Where there has been non-compliance we have seen examples of:
the admissibility criteria set out in the Crim PD not being actively considered
limited (although it is growing) use of meetings of experts prior to a case being heard
less than ideal case management, resulting in little time for scientists to evaluate complex findings
expert evidence being admitted in the absence of a statement meeting the requirements set out in the Crim PR and Crim PD
expert evidence being admitted where the source was not an expert in the relevant field, where the evidence was obviously biased and where the ‘expert’ had failed to comply with basic scientific requirements
As I said earlier compliance with both the Regulator’s code of conduct and with the Criminal Procedure Rules and practice directions is important. Compliance with the regulatory standards should increase the probability that the work is done correctly and reduce the risk of mistakes getting out the door. In particular, compliance with the Regulator’s codes of practice and conduct requires greater focus on structured scientific validation of methods, so that their strengths and limitations are well characterised. Compliance with the Criminal Procedure Rules and criminal practice directions should ensure that the evidence is properly reported to the court and that there is effective case-by-case scrutiny. Together this structure of regulation and rules provide a stable platform for provision of and scrutiny of reliable forensic science.
From the judicial perspective, I accept that there is a challenge which stretches beyond the need for experts to ensure compliance, but into ensuring that there is generally a better understanding amongst the judiciary of the quality standards set by the Regulator and what compliance or non-compliance with the standards means in reality. I am pleased that, to this end, the Judicial College, responsible for judicial training and development, have arranged that His Honour Judge Mark Wall QC who has taken a judicial lead in this area, to a talk about the topic later this month.
In that regard, from my perspective as Head of Criminal Judges, I would urge judges who sit in crime to look carefully at whether they are fully utilising the Criminal Procedure Rules in order to:
facilitate more pre-trial meetings of experts
ensure that there is consideration of whether or not the appropriate quality standards have been applied, and if not, what other mitigating factors are in place
actively enquire into the reliability of evidence, where that evidence is novel, outside the mainstream or provided by ‘experts’ who have little regard for the required standards
prevent misconceived challenges to expert evidence
As well as complying with Rules, there is another aspect that I want to address that I also picked up in the review which is the understanding of forensic evidence and I am pleased to report that, since the review, there has been a healthy and increased focus on how forensic scientists need to communicate more clearly to courts and there has also been much scrutiny of the scientific basis of various types of expert evidence.
One of my observations in the review was that juries could not and should not be expected to understand and interpret complex scientific concepts. This is important for several reasons, not least to avoid unnecessary use of limited court resources, and to prevent juries reaching perverse decisions based on inaccurate understanding of the science. These possibilities could contribute to a loss of confidence not only in specific scientific areas but more fundamentally in the system of trial by jury.
This is not to say that opposing scientific views should not be placed before the jury. Instead, this should be restricted to those circumstances where it genuinely is an issue which has not been resolved at a meeting of experts and, even then, after efforts have been made to minimise the number of contentious scientific questions in relation to which a jury is asked to make a decision.
In that regard, the Regulator has issued guidance on a range of issues to assist experts. Experts should be familiar with this guidance, which includes:
cognitive bias effects relevant to forensic science
DNA anti-contamination measures for crime scenes, laboratories, Sexual Assault Referral Centres and custodial settings
legal obligations for expert witnesses
In addition, since the review I am very pleased to report that, under the stewardship of the Royal Societies of London and Edinburgh, primers have been developed to assist the judiciary. These primers have been a collaboration between leading scientists and working judges, peer reviewed by legal practitioners and is the result of an initiative that was championed and embraced by the former Lord Chief Justice, Lord Thomas.
The primers have weight and authority behind them and present a plain English, authoritative account of the technique in question, as well as considering its limitations and the challenges. Thus, the first 2 primers looked at 2 very different fields. The first was on forensic DNA where there is much established science and the challenge for that primer was to distil the mountains of established science without dumbing down the science: on the committee who developed the primer was Professor Sir Alec Jefferys who pioneered the science in the 1980s. The second primer was on gait analysis, a much younger and less scientifically robust area. The focus of that primer was less on dealing with a volume of robust science but rather to advise that the scientific evidence supporting gait analysis is “extremely limited”. Both are fantastic examples of the value of law and science working together.
Future primers on the topics of statistics and the physics of vehicle collisions are planned and I await these with interest as I think they will also provide a very valuable tool in the resolution of disputes.
In summary, then, I recognise that in the 3 years since my review, some things have not changed or been made easier – we remain challenged by the financial constraints we work within and the complexity and volume of work that requires forensic expert evidence.
On the other hand, we have seen progress in the frameworks that surround expert evidence, whether the Regulator’s code or the Criminal Procedure Rules and practice directions. Ensuring compliance with these will mean that effective case-by-case scrutiny of scientific evidence is made easier.
That is the message I want to end on. First, that experts, and all parties in the criminal process must make sure that they are familiar with the duties that come with presenting and admitting expert evidence. Secondly, that judges also must be aware of the mechanisms that are at their disposal for effective case management and handling of expert evidence. We have started to lay the framework but it needs to be put into practice.
Those of us that work in an area where scientific evidence matters are rewarded by being involved with some of the most fascinating and engaging parts of criminal justice. But to ensure we have effective scrutiny and to ensure that the public retains confidence in the system we must make sure we see the regulations and rules as supportive not superfluous.