Introduction
This is my first blog, I have been waiting for a suitable subject to make it newsworthy and interesting and along came R v Smith [2011] EWCA Crim 1296.
To begin with I must make a few ‘declarations of interest’. In common with many forensic scientists I am concerned about the quality of forensic science and indeed what counts as forensic science. Many of the issues are identified and discussed in the excellent report from the US National Academies of Science (NAS) in 2009 ‘Strengthening forensic science in the United States; a path forward’. The report also makes some important recommendations regarding regulation and oversight. It is by no means the only document highlighting current issues relating to expert evidence, I also offer the England &Wales (E&W) Law Commission Report No.325 ‘Expert Evidence in Criminal Proceedings in England & Wales’ 2011 in addition.. However, the NAS report is perhaps the most comprehensive and detailed to date.
As someone much engaged in regulation I am firmly of the view that regulation and oversight have a major part to play in assuring the reliability of forensic science. Reliable science requires that the organisation, methods and individuals are subject to oversight (a regulatory framework). In practice oversight of the organisation and methods is provided by accreditation to an international standard. For forensic science laboratories this is usually ISO17025 (General requirements for the competence of testing and calibration laboratories). For individual forensic scientists some form of certification (e.g. a register of competent practitioners) usually provides the necessary regulatory framework.
The evaluation of forensic evidence is another important step in the forensic process. The quality standard applicable is the AFSP (Association of Forensic Science Providers) Standard[1] for the formulation of evaluative forensic science expert opinion; compliance with this standard is essential.Compliance with these quality standards ensures that the Court can rely with confidence on forensic evidence that is objectively fit-for-purpose.
In the absence of quality standards forensic evidence may well be unreliable and its admissibility open to question.
On many occasions I have witnessed scientific evidence given in court which was accepted without challenge, an occurrence also highlighted by the Law Commission Report No.325. In the absence of an effective challenge the evidence was probably given more weight than it deserved. Therefore, an essential requirement for the delivery of justice is, in my opinion, an ‘equality of arms’. To ensure a fair trial and a safe verdict each party must have at its disposal competent experts and forensic evidence should be reviewed as a matter of course.
As a citizen, I am fully supportive of a well resourced police force pursuing its aims of crime prevention, reduction and solving crime. In the investigation of crime the police should have at their disposal science of sufficient quality. Law enforcement agencies charged with investigating crime need to rely on forensic scientists. However, the role of the forensics scientist is not the same as that of the police[2]. The aims of law enforcement and justice are not always the same; “justice is incidental to law and order” J Edgar Hoover is quoted as saying. The forensic scientist, while rightly assisting law enforcement agents doing their vital job in protecting the citizen, must always act in a manner consistent with his or her primary duty to the Court.
The judgement; R v Smith [2011] EWCA Crim 1296
One of the areas of concern highlighted by the NAS report and elsewhere is comparison evidence where some degree of subjective judgement is involved in reaching a decision regarding a degree of resemblance. This is the case in such areas as footwear marks, tool marks and the subject of this blog, fingerprints.
Before commenting on the main parts of the judgment I must record my surprise at the degree of control the police have over fingerprint evidence in E&W and I am concerned about the police effectively deciding who can and who cannot give expert evidence in court. I am aware of other examples of concerted action to prevent forensic evidence reaching the Court. This does not bode well for justice with the increasing role of the police in delivering forensic science in E&W.
The main finding of the Court of Appeal might be summarised as follows; the quality of fingerprint evidence delivered by the police fell well below the standard required and the standard currently maintained by non-police forensic science providers. The fingerprint evidence presented at trial was not fit-for-purpose.
Is the process uncovered by the appeal court capable of delivering forensic evidence that can be relied on by the Court? In this case the answer is an unequivocal “no”.
I recall the ‘Guidance Booklet for Experts’ [2006] produced by Association of Chief Police Officers (ACPO) and the Crown Prosecution Service (CPS). This booklet was focused on disclosure. Nevertheless, it purported to be a guide for experts reminding them that their overriding duty is to the Court (a requirement in many jurisdictions). The Guide includes such requirements as [your] ‘notes should be sufficiently detailed and expressed in such a manner that another expert, in your field, can follow the nature of the work undertaken’ (sec. 3.2.2) and at 3.3.2 ‘Your report should contain information relating to the following ....details of any information upon which you have relied on in reaching your opinion’; which is the same as Criminal Procedure Rules 2010 at 33.3 (1) e(iii). The Guide also includes a self-certificate for the expert. The booklet was revised and reissued in May 2010.
It seems that police experts were not required to comply with the ACPO/CPS Guide.
Rule 33.4(1) of the Criminal Procedure Rules 2010 provides,
‘that, following a request, another party must be given a copy of (or a reasonable opportunity to inspect) the records of any examination, measurement, test or experiment on which the expert’s findings and opinion are based, or that were carried out in the course of reaching those findings and opinion, and anything on which any such examination, measurement, test or experiment was carried out’.
One hopes that current police practice complies with this rule.
My first encounter with police fingerprint evidence was the McNamee appeal (R v McNamee [1998] EWCA Crim 3524) from which I must quote.
‘We were persuaded to grant leave to call no less than 14 fingerprint experts, all with great experience, in this appeal, and we heard evidence in relation to this single thumb print over no less than 7 full court days. Some of the experts were instructed by the Review Commission, some by the Appellant and some by the Crown. Remarkably, and worryingly, save for those who said that the print was unreadable, there was no unanimity between them, and very substantial areas of disagreement. All the experts, save Mr. Swann who is retired, are currently employed in various police forces.’
So as the court of appeal has found in this latest judgement little seems to have changed in the last decade or so.
Unlike other recent judgements (e.g. R v T [2010] EWCA Crim 2439) highlighting quality failures which have brought little public response from regulators this judgement makes it clear that in this case the regulators must act. The judgement requires regulators
‘to examine as expeditiously as possible the issues we have identified, to assess the position and to ensure that there are common quality standards enforced through a robust and accountable system.’
This directive from the Court of Appeal does not sit well with the decision by the Council of the European Union that effectively excludes this evidence type from the requirement for common standards following the adoption of the PrΓΌm Treaty as European Union law in 2007. While laboratory based processes such as development was included the comparison of fingerprints was not.
Neither does the directive sit well with the time table given for police providers of forensic science to be accredited to an international standard [3] by 2015.
Such a generous time scale seems extraordinary in the circumstances. Once a decision has been made by an organisation to seek and obtain accreditation to an international standard then, with effective management, it is easily deliverable within two years. I know some forensic science providers who have achieved accreditation in a significantly shorter period of time.
Summary
This latest judgement has uncovered serious failings in the provision of fingerprint evidence by police.
Despite the E&W Court of Appeal identifying significant shortcomings over a decade ago it appears few improvements have been made since then.
Many sources have identified weakness in comparison evidence where a degree of subjectivity is relied on to form an opinion. This judgement is further evidence of these weaknesses.
In the absence of quality standards such as the AFSP Standard and an international standard such as ISO17025 forensic evidence is unlikely to be reliable and its admissibility is in question.
It will be interesting to see how regulators in the UK respond to this judgement and other failures to deliver reliable forensic evidence.
Sean Doyle
Consultant Forensic Scientist, June 2011
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