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J S Publications’ initial response to the Forensic Science Regulator’s Consultation Paper
The following is our initial response to the Consultation paper. After reading this, you can:
In seven short paragraphs detailing his recommendations, the Regulator succeeds in bringing some much-needed rationality to the debate over the accreditation of forensic practitioners who provide evidence to the criminal justice system (CJS).
What needs accrediting?
The UK Register of Expert Witnesses has long been sceptical of the need for general accreditation of experts as expert witnesses because no one has been able to show that there is any general failing in the quality of the expert evidence provided to the UK courts. In any event, we see little to accredit in the forming of opinions and bearing witness to them in court.
What does need accrediting is an individual’s skill as an expert. For most who appear as expert witnesses, this professional accreditation is undertaken by a professional regulatory body. We believe that where a professional regulatory body already exists, that body should be left to regulate its members.
There is a view that many of the problems that have arisen in recent years in the criminal courts have flowed from the court’s mishandling of conflicting scientific evidence. No system of accreditation can tackle this. But the ongoing work of the Law Commission – to introduce new powers for the criminal courts to assess opinion evidence before it comes before a jury – could.
An end to register-focused decision making
The Regulator rejects both the proposal from the Council for the Registration of Forensic Practitioners (CRFP) and that from Skills for Justice to continue the existing CRFP register. The CRFP was conceived originally as a professional regulatory body for forensic scientists who had no other professional regulatory body, and in that role it had a value. However, it has repeatedly tried to extend its remit into new territory such as, for example, the civil arena. The driver for this has seemed to many to be based more on the need for it to make its register financially self-sufficient than any identified need in the areas it coveted. This has wasted its original potential.
In opting instead for ISO-based assessments through UKAS, the Regulator has ensured that in future any drive to widen the scope of regulation does not arise simply through a need for a register to become self-financing.
Broader, deeper, better
The Regulator wants to move to a multi-faceted system of accreditation focused on the provider organisations, and that must be welcomed. By integrating the assessment of practitioners and the scientific methods they use into an organisation’s ongoing quality procedures, and all to internationally recognised ISO standards, a superior replacement for the existing system of practitioner accreditation will result.
Where international standards exist, it seems perverse not to adopt them. Not only would their adoption bring into the UK’s quality assessment programme a level of objectivity, it would also allow comparisons to be drawn across national borders. This would be very helpful when monitoring the UK’s performance in quality management of forensic science services, and would also help in cross-border litigation.
Provided it is recognised that the aim is to allow independent assessment to be made of an individual’s competence (i.e. that the individual has the necessary knowledge and skills to undertake a given task), and not whether the outcome of a given task is correct (i.e. even competent people can get it wrong on the day), we see little wrong with promoting the Skills for Justice National Occupational Standards (NOS).
However, it must be recognised that there is a danger of the NOS approach creating a barrier to innovation, especially if the absence of a NOS for a given tasks comes to be seen as a negative. This must be guarded against. Science develops through innovation, and novelty should be nurtured, provided only that the greater uncertainties associated with new approaches are made plain.
What accreditation can deliver
The CRFP, in creating an overarching system of professional skills accreditation and pushing for it to become mandatory, sought to usurp the function of the professional bodies and the courts by pre-selecting experts who are ‘sufficiently expert’ to be heard.
Yet the accreditation it offers would not prevent its members becoming involved in miscarriages of justice similar to those perpetrated in the 1970s and ’80s. No accreditation scheme can prevent a thoroughly competent expert getting it wrong on the day. So, all that is left is the ability of the CRFP to deal with an expert found wanting after the event. The courts have a perfectly good, if slow, system of appeal to deal with such instances. Furthermore, those who have a natural remit to accredit experts – the professional regulatory bodies – already have far greater powers to discipline their members than the powers commanded by the CRFP.
The CRFP scheme always appeared to us to be unworkable, and the expert community has voted with its feet. If the Regulator’s scheme is to avoid similar problems, he must be very clear about what it is he is attempting to do. Woolly phrases such as ‘the regulation of the quality of the provision of forensic science’ (para 1.10) should be avoided – for how can any system of a priori checking guarantee quality when even the most pre-eminent expert can get it wrong occasionally?
Quality assurance of the evidence placed before the court can only come from looking carefully at each expert, in each case and from many angles. And that’s precisely the system already in place in the form of the lawyers, the judge and the other expert witnesses in a case.
We believe that the best the Regulator can achieve is to imbue a culture of competency checking through the broad ISO-based assessment of organisations being proposed. This, it seems to us, is the closest we have yet come to an answer to the questions posed by the miscarriages of justice of the 1970s and ’80s. The Regulator’s scheme cannot guarantee quality, but it can guarantee competence within the major provider organisations. And that is a big step forward.
Work with the professional regulatory bodies
But, in keeping with the central tenets of the Better Regulation Executive’s (BRE) principles of good regulation, the scope of the Regulator’s proposed Scheme, as far as individual experts are concerned, should only include those who currently lack an existing professional regulatory body. This approach would accord with the findings of the Civil Justice Council’s Expert Forum meeting on accreditation held in March 2005.
Rather than trying to adapt the UKAS methodology for the small number of individual forensic scientists, and the larger body of medics, engineers and other experts who provide expert evidence to the CJS, the Regulator should consider allowing the professional bodies to take up the slack. If any of these individuals lacks a professional regulatory body, encouragement to join the Forensic Science Society ought to be sufficient. With its new professional body status, this established body should be well able to ensure ongoing competence of these individuals.
Whilst considering the cost of the Regulator’s proposals, he will need to address the current attitude in the Legal Services Commission (LSC) that equates lowest cost with best value. It seems to us that the LSC chooses not to understand that quality forensic evidence does not come ‘on the cheap’.
Given the recent cost-cutting measures introduced by the LSC, and its current proposals to arbitrarily cut expert fees still further, the Regulator may soon find that he has very few individual forensic scientists to worry about. Forensic scientists could ill afford to participate in his system if the LSC fee rates fail to cover even their operating costs.
Answers to the Specific Issues
Paragraph 3.30: In the meantime, all providers with any laboratory function will be expected to be accredited to ISO 17025. Any law-enforcement body with an in-house laboratory function will be expected to work to the same standard and to apply for ISO 17025 and/or ISO 17020 accreditation. This, along with the full adoption of the National Occupational Standards, means that each organisation will have to maintain a high level of practitioner competence.
The Regulator seeks to ensure competence by moving to a multi-faceted ISO-based system of accreditation of forensic science provision to the UK’s criminal courts. The UK Register of Expert Witnesses supports this aim. We also support the Regulator’s ambitious initiative to develop a unified standard for forensic science in the UK. We understand that this work will inevitably take time if done properly. It seems, therefore, that to require providers to meet the existing international ISO standards for forensic laboratories pending the outcome of the Regulator’s work is an appropriate move. In taking the vast majority of the practitioner base along the path towards eventual implementation of the Regulator’s unified standard, it is a powerful first step towards the kind of regulation that meets the BRE principles of good regulation.
Question 3.36: National Occupational Standards (NOS) - Are viewed by managers as an indispensable tool for managing a highly skilled workforce. They are used widely to support individual and organisational development and quality assurance at all levels. They provide benchmarks of good practice across the UK.
‘National Occupational Standards (NOS) describe competent performance in terms of outcomes. They allow a clear assessment of competence against nationally agreed standards of performance, across a range of workplace circumstances for all roles.’ www.skillsforjustice.com
NOS appear to offer a natural means by which to standardise the assessment of workforce skills across the many providers to the criminal courts of forensic science services. Skills for Justice was created as a Sector Skills Council for the forensic sector; not to adopt its NOS would seem odd.
Some practitioners may have concerns about individual NOS and their suitability. But that should not detract from the value of adopting the now widely accepted NOS approach to defining what amounts to competence in a particular task. Our only concerns are as follows:
- Do senior scientists view NOS, which are essentially an extension of the NVQ system, as relevant to them?
- Are NOS generally accepted in the independent sector?
Question 3.40: Skills for Justice recommend that NOS are used as a ‘common language’ and that they are the key test of practitioner competence.
It is laudable to try to create a ‘common language’ to enable assessments across many and varied scientific disciplines and tasks to be open to comparison. Provided it is recognised that the aim is to allow independent assessment to be made of an individual’s competence (i.e. that the individual has the necessary knowledge and skills to undertake a given task), and not whether the outcome of a given task is correct (i.e. even competent people can get it wrong on the day), we see little wrong with promoting the Skills for Justice NOS.
However, it must be recognised that there is a danger of the NOS approach creating a barrier to innovation, especially if the absence of a NOS for a given task comes to be seen as a negative. This must be guarded against. Science develops through innovation, and novelty should be nurtured so long as the greater uncertainties associated with new approaches are made plain.
Question 4.13: The Regulator would welcome views on the current assessment and registration processes conducted by CRFP to be sure that all views and experiences are heard and considered.
The UK Register of Expert Witnesses has long been critical of the CRFP approach to the accreditation of experts as expert witnesses. While its remote casework-based system of assessment by assessors who have effectively assessed themselves may have some merit, it simply cannot support the claims about quality that have been made for it to the wider world.
Question 8.3: The Regulator takes the view that it is unnecessary and disproportionate to demand further levels of practitioner assessment through the CRFP process, and questions what additional benefits, if any, registration with CRFP can add.
We agree with the Regulator’s view. Real benefit will come from the coordinated assessment of firms, people and processes around internationally recognised ISO standards, coupled with clear guidance about the limited purpose of the assessments (guaranteeing the competence of the individual not the quality of the evidence).
Question 8.7: It is important to recognise that individual competence is a product of the culture and quality management approach of the organisation in which someone works, as much as it is a reflection of individual ability. It seems logical, whenever possible, to assess individual competence within the overall assessment of an organisation. This is the standard adopted internationally for forensic science practitioners.
We agree. The proposed system of assessment of practitioners within the context of the provider’s own assessment processes is a better system than the status quo. But the smaller forensic businesses and independent forensic experts who feed into the CJS must also be accommodated by the new system. Ideally existing professional regulatory bodies should be encouraged to take up the regulatory slack.
What next?
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