Forensic Science Regulator Act 2021 and the Forensic Science Regulator’s Code of Practice 2023

• Introduction
• The Forensic Science Regulator
• The Forensic Science Regulator Act 2021
• Approaching forensic evidence and dealing with evidence that does not comply with the FSR Code

​Introduction

Expert evidence as to forensic science activities is also potentially subject to the Forensic Science Regulator Act 2021 (“FSR Act”) and the Forensic Science Regulator Code of Practice (“FSR Code”). Not all forensic science activity is subject to the FSR Act and the FSR Code but when the Act and the Code apply, they apply to both prosecution and defence experts.

Compliance with the FSR Code and the FSR Act is a mark of reliability for prosecutors, the courts and others. Other forensic evidence, whether from infrequently commissioned experts, or using new or infrequently used methods can also be reliable but will require closer scrutiny. Similarly, forensic evidence that is not FSR Code compliant will need to be carefully considered to ensure that it is reliable enough to be placed before the courts and admitted in evidence. Prosecutors should not reject evidence that is not compliant with the FSR Code simply for that reason but should adopt a case-by-case approach to admissibility and reliability in the light of the guidance below and the Code for Crown Prosecutors. In many cases the issue is likely to be the weight to be given to the evidence rather than its admissibility although that will ultimately be a matter for the court.

The Forensic Science Regulator

The office of the Forensic Science Regulator (“the Regulator”) was established in 2007 tasked with ensuring the reliability of forensic science in the criminal justice system. The Regulator issued non-statutory versions of the FSR Code prior to October 2023 that set out the values and ideals of forensic science along with validation standards for scientific processes. In some forensic disciplines the Regulator’s non-statutory Code provided for the accreditation of quality management standards in partnership with the United Kingdom Accreditation Service (“UKAS”).

In many forensic disciplines compliance with the Regulator’s non-statutory Code and accreditation by UKAS became well established as a mark of quality and reliability and in 2021 parliament decided to provide the Regulator with statutory powers in the FSR Act.

The website of the Forensic Science Regulator includes guidance on a wide range of issues including guidance on statement writing and legal issues that is useful to all experts as well as forensic scientists.

The Forensic Science Regulator Act 2021

The Forensic Science Regulator Act 2021 (“FSR Act”) sets out the Regulator’s statutory powers along with the Regulator’s duty to prepare and publish a code of practice about the carrying on of forensic science activities in England and Wales.

Section 11 of the FSR Act defines forensic science activity widely as relating to the application of scientific methods for the detection or investigation of crime and the preparation, analysis or presentation of evidence in criminal proceedings (in England and Wales). Section 2 of the FSR Act however, provides that it is for the Regulator to decide which forensic science activities are to be covered by the Code.

The first iteration of the FSR Code (in force from 2 October 2023) lists 51 different forensic science activities and the Code will apply to 34 immediately (and a further two in 2025). The remaining 15 defined forensic science activities are likely to be regulated at some future but as yet unspecified date. There are also activities such as forensic pathology that the Regulator has chosen not to include within the ambit of the Code.

The FSR Code applies to forensic work that is carried out on or after 2 October 2023. Work carried out before then (even if a report or court appearance is after that date) is not subject to the statutory FSR Code.

The FSR Code does not apply to “infrequently commissioned experts”. The criminal courts will sometimes require the assistance of an expert who does not usually operate in the area of forensic science. Where such an expert is commissioned in relation to a forensic science activity then the expert must comply with the provisions of Part E of the FSR Code. This provides a definition at Part E 46.1.3 that includes a stipulation that the expert has not provided advice or evidence in a criminal case for at least twelve months.

The FSR Code also makes some slightly different provisions for “infrequently used methods” at section 30.14 of the FSR Code. Methods used less than once in every three-month period across a forensic unit in separate cases are considered to be infrequently used. Similar provision is made for new methods at section 44.2 of the FSR Code.

A list of the 51 defined forensic science activities is at Part F of the FSR Code (F1 for activities to which the Code does apply and F2 for those to which the Code does not apply). Most, but not all, of the activities listed in F1 of the FSR Code require accreditation to an international standard such as ISO/IEC 17025 to demonstrate compliance with the FSR Code. In some cases, the FSR Code requires compliance with a framework set out by the National Police Chiefs’ Council rather than accreditation. Any requirement for accreditation is set out in the FSR Code (at F1) in relation to each different forensic science activity (there are delayed start dates for accreditation in some cases). Where accreditation to an international standard is required that is provided by the UK Accreditation Service (UKAS). Accreditation is held by organisations (or forensic science units) not by individuals, whereas compliance with the FSR Code will be for individual experts to certify. An expert report that contains a declaration that the expert has complied with the FSR Code (the declaration required) means that the forensic science unit for which they work is accredited by UKAS (for forensic science activities that require accreditation under the Code).

Declarations provided by experts in their statements (and in Streamlined Forensic Reports) will state, in accordance with the provisions of CrimPR19 and the Criminal Practice Direction 2023, whether the forensic science activity is covered by the FSR Code and whether the expert has complied with the FSR Code. If the expert has not complied with the FSR Code in part or all of their work then their declaration should set out the action taken to address and mitigate any risk of error (see below for guidance on relevant mitigations and the Guidance on declarations that has been issued by the Forensic Science Regulator).

Streamlined Forensic Reports both in SFR1 and SFR2 form will contain a declaration about compliance with the FSR Code even though the SFR1 is not an evidential statement (the SFR 1 is a case management tool and an invitation to the defence to make a section 10 Criminal Justice Act 1967 admission). In some cases, the SFR1 will report several different pieces of forensic science activity by different experts so may contain different declarations as to compliance (or not) with the FSR Code.

Section 4 of the FSR Act provides that the FSR Code is admissible in evidence and 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” (section 4(3)). The FSR Act does not provide any more detail on what that “question” might be, but it is likely to be about admissibility or the weight to be attached to such evidence. The Explanatory Notes to the Act say of this section that “it remains for the courts to make decisions as to the admissibility of forensic evidence.” Parliament has not introduced a rule excluding forensic science activity that is not compliant with the FSR Act and the FSR Code so the admissibility of such evidence (and the weight to be attached to it) will be for the courts to decide on a case-by-case basis. (See the section below on approaching forensic evidence and dealing with evidence that does not comply with the FSR Code).

Sections 5 to 8 of the FSR Act set out the Regulator’s powers to investigate and take action if the Regulator has reason to believe that a person may be carrying on a forensic science activity to which the code applies in a way that creates a substantial risk of adversely affecting any investigation, or impeding or prejudicing the course of justice in any proceedings.

The action available to the Regulator includes issuing compliance notices requiring action within a specified period. Such notices may also prohibit the provider from conducting any forensic science activity in England and Wales specified in the notice until the Regulator is satisfied that the necessary steps have been taken or are no longer required. If and when the Regulator is so satisfied a Completion Notice is issued under section 7.

Defence experts

The FSR Code apply to both prosecution and defence experts. Any forensic report received from the defence should be subject to the same level of scrutiny as a prosecution expert report.

Approaching forensic evidence and dealing with evidence that does not comply with the FSR Code

1. Does the evidence amount to a forensic science activity?

In some cases, it may not be clear whether the evidence is the result of forensic science activity (“FSA”) under section 11 of the FSR Act. For example, taking screen shots from a mobile phone will not normally be a forensic science activity but downloading information from a mobile phone through a “kiosk” device will be (special provision is made for kiosk devices in the FSR Code at 108.3.13). For circumstances in which downloading CCTV footage can be an FSA see the FSR Code and in particular at paragraphs 84-86 (copying CCTV and Body Worn footage will not normally be an FSA).

2. Is the evidence covered by the FSR Code?

The FSR Code sets out the forensic science activities covered (F1 for activities to which the Code does apply and F2 for those to which the Code does not apply). Experts in forensic science are normally best placed to state whether a particular forensic science activity is covered by the FSR Code, and whether accreditation from UKAS is required and covers the activity undertaken.

3. Has a compliance notice been issued by the Forensic Science Regulator?

Any forensic evidence that is subject to a compliance notice under section 6 of the FSR Act in relation to forensic evidence should be treated with great caution unless or until a completion notice has been issued by the FSR under section 7. A compliance notice can only be issued when the Regulator believes that a person is carrying on a forensic science activity to which the code applies in a way that creates a substantial risk of adversely affecting any investigation, or impeding or prejudicing the course of justice in any proceedings. If a compliance notice has been issued then the Regulator can also prohibit the person concerned from carrying on any forensic science activity in England and Wales until a completion certificate has been issued. Given that “forensic science activity” can include the presentation of evidence such a notice could prevent a forensic expert from giving evidence.

In some cases, the fact an investigation by the FSR has been launched may not be immediately apparent from a report and, when notified, prosecutors may need to consider whether to disclose such information under Part 19 of the Criminal Procedure Rules or under the Criminal Procedure and Investigations Act 1996.

4. The expert’s declaration of compliance or non-compliance with the FSR Code

Prosecutors should normally be able to rely on declarations made by experts including declarations about their compliance with the FSR Code when it applies. Further enquiry will only be necessary in certain limited circumstances (such as when another expert raises a query).

Guidance on declarations has been issued by the Forensic Science Regulator. This includes some suggested wording and, in cases in which a declaration of non-compliance is made a suggested annex of mitigations.

The FSR Code (at 37.2.3) requires that in instances of non-compliance, the practitioner should outline in an annex mitigations to the non-compliance and the Regulator’s guidance on declarations contains a recommended template. The annex should address the following issues: the competence of the practitioners involved in the work; the validity of the method employed; the documentation of the method employed; the suitability of the equipment employed (including the approach to maintenance and calibration; and the suitability of the environment in which the work is undertake.

The FSR’s guidance on declarations also sets out when practitioners should disclose enforcement action by the FSR. This is not always necessary because some action may be about a different individual practitioner or about a different forensic science activity conducted by the practitioner’s forensic science unit.

5. Evidence that does not comply with the FSR Code (in part or in whole)

The admissibility of evidence (whether or not it complies with the FSR Code) is a matter for the courts to determine on a case-by-case basis. Section 4 of the FSR Act (see above) does not preclude the admission of such evidence. The only provision in the FSR Act that would prevent a forensic expert from providing evidence is section 6 of the FSR Act which gives the Regulator the power to issue a compliance notice combined with an order prohibiting a forensic provider from conducting any forensic science activity set out by the Regulator (the provision of evidence being a forensic science activity that the Regulator could choose to prohibit). Non-compliance with the FSR Code does not, of itself, render evidence unreliable or inadmissible.

The Code for Crown Prosecutors provides that when deciding whether there is sufficient evidence to prosecute a case, prosecutors should consider whether there is any question over the admissibility of certain evidence. In doing so, prosecutors should assess: the likelihood of that evidence being held as inadmissible by the court; and the importance of that evidence in relation to the evidence as a whole. The Code also provides that prosecutors should consider whether there are any reasons to question the reliability of the evidence, including its accuracy or integrity. The approach set out below also applies when prosecutors are considering forensic evidence advanced by the defence.

Expert forensic evidence will normally be admissible if it is relevant to an issue in the case and the requirements set out elsewhere in this guidance are met. It is the requirement of reliability that may become an issue if forensic evidence does not comply with the FSR Code and that will depend on a number of different factors. Until the courts come to consider the FSR Codes and the FSR Act after 2 October 2023 there is no guidance from the courts but it seems likely that the following factors will be relevant:

• The reliability of the evidence (see below for indicators of reliability);
• The significance of the evidence in the case (is the case built on one single pieces of forensic evidence or are there multiple strands of evidence, forensic or otherwise);
• Is the evidence/any conclusion being challenged by the defence and another expert?
• Can the court address any concerns by admitting the evidence and providing a direction to the jury as to the weight to be attached to that evidence (note that the FSR Act and Codes apply equally to defence and prosecution experts so courts may well be considering potentially exculpatory forensic evidence).

In assessing the reliability of evidence that does not comply with the FSR Code the annex to the declaration and the mitigations to non-compliance should be considered to enable prosecutors to form a preliminary view of the reliability of forensic evidence. Evidence that complies with the Code is the most reliable; whilst evidence from an expert subject to compliance action by the FSR and without a quality management system that addresses any of the mitigations in the bullet below is the least reliable. There will be cases in which all of the mitigations below are present and there will be cases in which only some are present. The FSR Act and the FSR Code do not set a threshold for the courts at which evidence becomes reliable or unreliable because that is a case sensitive decision that involves consideration of the following:

• The FSR Code (at 37.2.3) requires that in instances of non-compliance the practitioner should address the following issues in an annex to a declaration of non-compliance (see the section on declarations above):
  • The competence of the practitioners involved in the work;
  • The validity of the method employed;
  • The documentation of the method employed;
  • The suitability of the equipment employed (including the approach to maintenance and calibration);
  • The suitability of the environment in which the work is undertaken.
• The significance of the mitigations set out above will vary depending on the work being undertaken. For example, in DNA work the work environment is more important than in fingerprint comparison work given the risk of contamination in DNA cases.
• There are quality management systems other than the FSR Code and international standards accredited by UKAS and although such systems fall short of the standards expected by the Forensic Science Regulator, they can be an indicator of reliability.
• There will be cases in which some but not all of an expert’s work was compliant with the Code because one part of a chain of forensic work was not compliant with the Code. In such cases the significance of that one part of the chain will need to be considered, in some cases it may not be an issue in the case.
• There will also be cases in which an expert will not be Code compliant (or UKAS accredited) for a sub-activity of one of the forensic science activities (FSA) listed in the FSR Code whilst being Code compliant (and UKAS accredited) for other sub-activities within that same FSA. In such cases the significance of any difference between the main FSA and the sub-activity will need to be considered.
• There are circumstances in which issues that some might regard as incidental to the reliability of forensic work can affect accreditation (by UKAS) and therefore compliance with the FSR Code (in activities in which the Code requires UKAS accreditation). For example, closing one laboratory and opening another requires a reaccreditation of new premises even though personnel, processes and the forensic unit remain the same. When potential contamination at the workplace is an issue (DNA work for example) that will be more significant than in some other scenarios. Similarly, there can also be changes to the definitions of certain activities that might require accreditation for a particular “sub-activity” that was not required previously.
• If an investigation or compliance action is or has been taken by the Regulator it should be noted that this is not necessarily an indicator that evidence is unreliable. Investigations may not reveal any problem and when they do, an issue with one part of a process in a forensic unit may not have any effect on work on a different case. However, when the Regulator has issued a compliance notice under section 7 of the FSR Act it should be confirmed whether that prohibits the provider from conducting any specific forensic science activity for the time being. A prohibition notice, while it is in force and subject to the precise wording of the notice, is a strong indicator that evidence is unreliable.

In addition to the annex of mitigations to the Expert’s Declaration prosecutors will want to consider the following issues when considering the reliability of non-compliant forensic evidence:

• Is there other evidence or information (forensic or otherwise) that is consistent or inconsistent with the forensic evidence in question?
• Is the forensic evidence disputed?
• Have the defence instructed their own expert and have they come to a different conclusion?
• Are there any further reasonable lines of enquiry that might support (or undermine) the forensic evidence? Should the police be invited to seek a second forensic opinion when that is a reasonable and proportionate request in the circumstances of the case (but this should not be an automatic response)?
• In cases in which the charging or continuation of the case turns on this issue a conference call/meeting with the expert and officer in the case should be considered.

Summary

The admissibility of forensic evidence remains a matter for the court even when the forensic practitioner has not complied with the FSR Code (when it applies). The guidance above should be followed when prosecutors are considering the reliability of such evidence (and the weight to be attached to it) on a case-by-case basis.