Code of Practice for the Forensic Science Regulator

(Limited Text - Ministerial Extracts only)

Monday 27th February 2023 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Code of Practice for the Forensic Science Regulator.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, forensic science is vital to the investigation and prosecution of crime. Without high-quality forensic evidence entering the criminal justice system, our ability to fight crime would be compromised. We are fortunate in this country to have some of the world’s best forensic scientists, who deploy their considerable skills to help deliver justice, but we cannot rest on our laurels.

Public confidence in the criminal justice system is vital. This confidence can be undermined if quality standards in forensic science are not upheld or maintained. This Government believe that, in order to set appropriate standards, a degree of statutory regulation is required, which is why it has been long-standing government policy—since 2016, in fact—that the Forensic Science Regulator should have statutory powers. That is why the Government supported the Private Member’s Bill that became the Forensic Science Regulator Act in 2021.

The Act established the regulator as a statutory officeholder. It gives powers to the regulator allowing them to act, as a last resort, when they have reason to believe that forensic science activities are being conducted in such a way as to create a substantial risk to the course of justice. It also requires the regulator to produce a draft statutory code of practice. This code defines which forensic science activities will be regulated and sets out the standards that providers will be expected to meet. It is the first time that a statutory code regulating the provision of forensic science has been produced anywhere in the world.

This code has been through a comprehensive consultation process, which revealed broad support among the forensics community. In fact, 83% of respondents to the consultation, which included stakeholders from policing, the commercial sector, academia and the judiciary, expressed their support for the model of regulation set out in the code. By adhering to the code and complying with its requirements, forensics providers will ensure that the evidence they gather and present to the courts is of the highest quality, in turn helping to maintain public confidence in our systems.

In practical terms, this means that all forensics providers who deliver forensic science activities to which the code applies will have to declare compliance with the code. In addition, they may also need to attain accreditation and establish quality management systems for the activities they undertake. Non-compliance with the code will not in itself automatically mean that the evidence gathered will be inadmissible—it is always the courts who ultimately decide whether to accept evidence—but compliance with the code will reduce the risk of substandard evidence entering the system. Compliance with the code will make it far more likely that providers are producing high-quality forensic evidence to the courts. Compliance with the code will help protect the integrity of the criminal justice system and guard against miscarriages of justice.

I very much hope that noble Lords will support this code of practice, which I commend to the Committee. I beg to move.

[The Earl of Lindsay (Con)]

My Lords, I thank my noble friend the Minister for providing this opportunity to consider the Motion that the 2013 draft code of practice for the Forensic Science Regulator, laid before the other place on 26 January, be approved. I warmly welcome the Forensic Science Regulator’s code of practice as an important further step in ensuring the quality, consistency and integrity of our forensic sciences across England and Wales. The code builds on the non-statutory codes of practice and conduct issued by the previous regulator and incorporates much of their content.

I particularly welcome the code’s recognition of the importance of accreditation against internationally recognised standards in driving quality improvement, trust and confidence in the critical services of forensic providers. Technical competence and consistency across the mixed economy for the provision of forensic science services should be a vital part of a fair and functioning criminal justice system. This code of practice will help achieve that.

I should declare an interest as the chair of the United Kingdom’s national accreditation body, UKAS, which is the sole national body recognised by government for the accreditation of organisations against nationally or internationally recognised standards. Accreditation provides assurance of the impartiality and competence of providers, which we can all agree are imperative in the criminal justice system. UKAS and the Forensic Science Regulator have been working closely since the FSR role was first created; together, we have achieved consistent success in improving standards through the accreditation of forensic science providers in both the private sector and police forces. UKAS will continue to work closely to deliver the vision of the Forensic Science Regulator with respect to compliance with standards and, through the accreditation of forensic providers, the demonstration of the appropriate competence of the practitioners undertaking this critical work.

I believe that this code of practice will support and encourage a culture of improvement and a commitment to quality, competence and impartiality across forensic science provision. I am delighted to add my support to its approval.

--- Later in debate ---

With that, we very much welcome the code and support the Government in its introduction.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all three noble Lords who have spoken in this short debate. I am grateful for their considered and constructive contributions.

I pay tribute to the Forensic Science Regulator for producing such a detailed and comprehensive code of practice. The code is a significant piece of work, as befits an instrument that will help to drive up quality standards. It is long, but builds on other non-statutory codes of practice and conduct and incorporates much of their content, meaning that much of its content will already be largely familiar to forensic science providers. The code sets out for the very first time definitions of forensic science activities and specifies which of those activities it applies to. As I said in my opening remarks, this is the first time that has been done—and not just in England and Wales; this is a world first.

I turn to some of the specifics that have been raised. I thank my noble friend Lord Lindsay for his positive remarks and for the UKAS perspective. I am sure he would acknowledge that accreditation for forensic science activities is not a panacea, but experience has shown that it raises quality standards by improving processes and ensuring that if failures happen then appropriate steps are taken. In addition, accreditation helps drive standardisation to support cross-force co-operation and efficiency.

It is fair to say that achieving accreditation takes time and resources, but evidence from non-accredited laboratories has always been open to challenge in court and there is a real risk of losing cases as a result, which goes some way to answering the question from the noble Lord, Lord Coaker.

Accreditation across the board helps to ensure a level playing field and consistent quality standards, which also goes some way to answering the questions from the noble and learned Lord, Lord Thomas, particularly those around impartiality and integrity. It is acknowledged that some forensic providers and police forces have failed to achieve accreditation across a range of forensic disciplines, which can cause miscarriages of justice, abandoned trials and so on. This code, together with the powers in the Act, will allow the regulator to issue compliance notices against forensic providers that are failing to meet the required quality standards.

In answer to the comments of the noble and learned Lord, Lord Thomas, about whether and how this will be supported by the forensic science—I hesitate to call it “industry”—caucus, as I said in my opening remarks, the office of the Forensic Science Regulator engaged in a statutory consultation which ran from 8 August to 31 October 2022. There were 110 responses with 3,000 comments from across the forensic science community—again, as I said—including from policing, academia, the judiciary and the commercial sector, with 83% of respondents overall expressing support. The private and commercial sector has actively been calling for regulation for a long time because it understands the value of quality and wants to compete on a level playing field. This is the crucial point: almost 80% of policing respondents expressed support. Based on those numbers, I think it will be largely self-enforcing. It is fairly obvious that the industry is going to be very excited about this progress.

The noble Lord, Lord Coaker, asked about the HMICFRS report that showed that digital forensics were perhaps a little left behind. We have invested around £10 million in this financial year—2022-23—in the new digital forensics programme in the Police Digital Service that will support forces through automation and better safeguard victims’ privacy and in other new technology to increase forces’ capacity to process digital devices. We are working very closely with the NPCC and other criminal justice system partners to understand clearly current national performance and implement the recommendations of the HMICFRS inspection report on digital forensics. The Home Office has undertaken a national data collection project which looks more widely at governance, operating models, resources, training, technical capabilities and funding, which all impact on the ability of the police to conduct timely investigations and provide high-quality forensic evidence to support CJS outcomes. However, I acknowledge that this is a rapidly evolving space, so I suspect this is a debate we will come back to at greater length in future.

In answer to the questions asked by the noble and learned Lord, Lord Thomas, about digital, about 90% of forces have some ISO 17025 accreditation for digital forensics, but no force yet has accreditation for all digital forensics activity. As I just said, significant progress is still required to meet full compliance. It is for that reason that the new statutory powers for the regulator are so important.

The noble Lord, Lord Coaker, asked about the impact assessment that was completed in 2021. It was an internal assessment for Home Office policymakers, but we will be very happy to publish that in due course.

None of this is sudden. It has been government policy for many years that providers should have accreditation for the forensic science activities they conduct. The previous non-statutory regulator regularly published timetables for providers to achieve accreditation, often giving several years’ notice. Since 2016, it has been official policy that the regulator should have statutory powers underpinned by a new statutory code. The Act received Royal Assent nearly two years ago. In answer to the question, the regulator did not expect all providers to be fully compliant by October. This is a grace period to allow those providers who are already well advanced to become formally accredited to the code before it comes into force.

I hope I have answered noble Lords’ question. Approval of the draft code of practice today will help pave the way for better and higher quality forensic science in the criminal justice system in England and Wales. However, that is not the end. The overriding need to maintain high-quality standards continues. The new powers that the Forensic Science Regulator Act provides, taken together with this draft code of practice, will help driven up quality standards, improve outcomes and maintain public confidence. I commend the draft code of practice to the Committee.

Motion agreed.