Regularising the Regulator: The Government's Consultation about Placing the Forensic Science Regulator on a Statutory Footing
| Author | Bill Lawler,Angela M. C. Gallop,Michael W. Stockdale,Tim J. Wilson |
| DOI | 10.1350/jcla.2014.78.2.905 |
| Published date | 01 April 2014 |
| Date | 01 April 2014 |
136
Regularising the Regulator: the
Government’s Consultation about
Placing the Forensic Science
Regulator on a Statutory Footing
Tim J. Wilson,* Michael W. Stockdale,†
Angela M. C. Gallop‡ and Bill Lawler§
Abstract This article comments on a recent Home Office consultation about
making forensic regulation statutory and the government’s response to the
Law Commission’s recommendations for reforming the admissibility of
expert evidence in criminal trials. By suggesting a duty of ‘omissive
disclosure’ we offer a possible solution to concerns expressed to parliamentary
inquiries about the ‘fragmentation’ of forensic science evidence and how
reform, including regulation, might bear on (and support) individual
scientific and medico-legal experts, as well as organisations and methods.
We welcome the regulation initiative, but suggest that government policy
also needs to address interrelated and systemic problems that beset the
production of scientific and medico-legal evidence. We argue that these
problems stem from fragmented policy making between and within
government departments, possibly a similar fragmentation in jurisdictional
rule-making and, reflecting their economic influence, the degree of
responsibility vested inadvertently in the police and the CPS. We also suggest
that regulation is not an alternative to implementing the Law Commission’s
recommendations, which together with forensic regulation should not be
confined to criminal courts.
Keywords Forensic science; Medico-legal evidence; Disclosure;
Fragmented departmentalism
On 8 November 2013 the Home Office initiated an eight-week consultation
process about forensic science regulation.1 The key issues on which
comments were invited were (a) whether the current arrangements
should be placed on a statutory footing in England and Wales, and, if so,
* Professor of Criminal Justice Policy, School of Law, Northumbria University; e-mail: tim.
wilson@northumbria.ac.uk.
† Director, Centre for Evidence and Criminal Justice Studies, School of Law, Northumbria
University, e-mail: m.w.stockdale@northumbria.ac.uk.
‡ Visiting Professor, Northumbria University and Chief Executive of Axiom International
Ltd; e-mail: angela.gallop@axiom-international-ltd.com.
§ Home Office Forensic Pathologist, Newcastle upon Tyne forensic pathology practice.
The authors would like to thank numerous colleagues and CECJS members for
invaluable assistance, especially Dr Stephen Leadbeatter.
1 Home Office, Consultation on New Statutory Powers for the Forensic Science Regulator
(November 2013), available at https://www.gov.uk/government/uploads/system/uploads/
attachment_data/file/256614/New_statutory_powers_for_the_forensic_science_regulator.pdf,
accessed 21 February 2014.
The Journal of Criminal Law (2014) 78 JCL 136–163
doi:10.1350/jcla.2014.78.2.905
Regularising the Regulator
137
(b) the nature of the enforcement powers, (c) the extent of regulation (for
example, should it include fingerprints, medico-legal disciplines and
forensic accountancy as well as traditional forensic sciences), and (d)
the form of regulation (a code covering professional practice as well as the
standard isation of laboratory processes).2 It was indicated that the govern-
ment had in mind ‘light touch’3 enforcement and was reluctant to commit
to significant additional expenditure. With two exceptions, the consultative
document did not address constitutional issues. These were: (i) parlia-
mentary oversight would be restricted to the enactment of codes of practice
and powers of investigation in secondary legislation,4 and (ii) the
relationship between statutory regulation and the courts was confined to
a suggestion that non-compliance might be an admissible fact. 5
On 21 November 2013 the Ministry of Justice responded to the Law
Commission’s recommendations for reforming the admissibility of expert
evidence in criminal trials.6 It shared the Law Commission’s concern
that at present the courts are ill-equipped to resolve arguments about
the scientific authority of individuals claiming to be expert witnesses.
Nevertheless, on the ground of expense, it was unwilling to endorse
anything more than limited changes to the Criminal Procedure Rules and
declined ‘at this time’ to implement either a statutory reliability test as a
prerequisite to expert evidence reliability or judge-led pre-trial meetings
to deal with expert evidence disputes.7 Currently, r. 33.6 of the Criminal
Procedure Rules empowers the judge to direct pre-hearing discussions
between experts. The Law Commission had proposed that this be
supplemented by the possibility of the judge directing attendance at a pre-
trial meeting chaired by the judge, which would be more formal than
discussions under r. 33.6 and might take place where such discussions had
revealed a significant dispute.8 In its response the government, noting
that the Criminal Procedure Rule Committee, having considered this
recommendation, had found no current need to extend r. 33.6 in this way,
took the view that it was better to permit r. 33.6 to become more firmly
established before incurring the expense of £6.9 million over a two-year
period that the Law Commission predicted such judge-led meetings would
cost.9 The government did, however, accept some of the Law Commission’s
recommendations, including recommendations concerning modification
of the Criminal Procedure Rules relating to the content of experts’ reports
2 Above n. 1 at 10–14.
3 Ibid. at 9.
4 Ibid. at 10.
5 Ibid. at 14.
6 Ministry of Justice, The Government’s Response to the Law Commission Report: ‘Expert Evidence
in Criminal Proceedings in England and Wales’ (Law Com No 325) (2013), available at https://
www.gov.uk/government/uploads/system/uploads/attachment_data/file/260369/govt-resp-experts-
evidence.pdf, accessed 21 February 2014.
7 Ibid. at paras 4, 7–11 and 27–28.
8 Law Commission, Expert Evidence in Criminal Proceedings, Law Com Report No. 325
(2011) paras 7.43–7.52, available at http://lawcommission.justice.gov.uk/docs/lc325_Expert_
Evidence_Report.pdf, accessed 21 February 2014.
9 See Ministry of Justice, above n. 6 at paras 27–28. The Court of Appeal has advocated
the use of r. 33.6 of the Criminal Procedure Rules in several key judgments concerning
expert evidence reliability, most notably, in R v Reed [2009] EWCA Crim 2698, [2010]
1 Cr App R 23 and in R v Henderson [2010] EWCA Crim 1269, [2010] 2 Cr App R 24.
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