Forensic Science Regulator Bill

Nicola Newson

The Forensic Science Regulator Bill (HL Bill 179 of session 2019–21) is a private member’s bill sponsored in the House of Lords by Lord Kennedy of Southwark, shadow spokesperson for home affairs. It was introduced in the House of Lords on 12 March 2021 and is due to have its second reading on 19 March 2021. The bill has already completed its stages in the House of Commons, where it was sponsored by Darren Jones (Labour MP for Bristol North West). The Government supports the bill. The Home Office produced explanatory notes to go with the bill as it was first introduced in the House of Commons.

Regulation of forensic science: current arrangements

The post of forensic science regulator already exists, but not on a statutory basis. The Government established the forensic science regulator role in 2007. The regulator is a public appointee who works independently of the Home Office, on behalf of the criminal justice system. Dr Gillian Tully stood down as regulator in February 2021 after six years in the role. The Home Office’s deputy chief scientific advisor, Rupert Shute, is acting as interim regulator until a new post-holder is appointed.

The regulator’s responsibilities include:

Identifying the requirement for new or improved quality standards.
Leading on the development of new standards.
Where necessary, providing advice and guidance so that providers of forensic science services can demonstrate compliance with common standards.

The regulator publishes codes of practice and conduct. These are revised from time to time. The most recent version was published on 12 March 2021 and will come into force on 22 March 2021. The codes detail standards and norms of practice that should be adhered to by all forensic science practitioners.

The regulator currently has no statutory powers to enforce compliance with the codes or investigate quality issues. The Government has argued this poses a risk to the overall quality of forensic evidence used in court proceedings and to public confidence in the system.

Support for statutory regulation

Successive governments have been considering introducing statutory regulation of forensic science over recent years. David Cameron’s Government said in 2016 it would develop proposals to give the forensic science regulator statutory powers, put the codes of practice on a statutory basis and enable the regulator to investigate non-compliance where necessary. This followed a consultation launched by the Coalition Government in 2013. Theresa May’s Government planned to support a private member’s bill on this subject introduced by Chris Green (Conservative MP for Bolton West) in March 2018. However, this bill made no progress in the 2017–19 parliamentary session. The Government said in April 2019 it would explore other legislative opportunities in the next parliamentary session.

Parliamentary committees in both Houses have expressed support for the forensic science regulator having statutory powers. In July 2019, the House of Commons Science and Technology Committee said it, and its predecessor committees, had been calling for this since 2011. It argued the regulator needed these powers “now more than ever” because of “an unstable forensics market which has been on the brink of collapse, and the clear need to uphold quality standards across forensic services”. In May 2019, the House of Lords Science and Technology Committee recommended the forensic science regulator “should urgently be given a number of statutory powers to bolster trust in the quality of forensic science provision”.

Sir Brian Leveson, who was commissioned by the Lord Chief Justice in 2014–15 to review the efficiency of criminal proceedings, also supported a statutory regulator. He argued “such powers are now necessary to ensure and if necessary enforce compliance with quality standards”.

Dr Gillian Tully, who recently stepped down as forensic science regulator, has advocated for the post to have statutory enforcement powers. In her final annual report, published in January 2021 she said:

Although a last resort, the potential for enforcement action is an important driver for proactive improvement. It will also mean that those who fail to follow robust scientific methodology and the legal requirements on experts can be prevented from continuing to pose a risk to the [criminal justice system].

Previously, she had said that the delay in passing such legislation had “without doubt, resulted in slower progress towards compliance with quality standards, particularly in very small companies and police forces”.

What would the bill do?

Clause 1 of the bill establishes the forensic science regulator on a statutory basis. Clause 1 also introduces schedule 1, which makes provision about the appointment, terms of office, remuneration, expenses and staff of the regulator. The regulator would be appointed by the secretary of state. They would have to be a person who appears to the secretary of state to have expertise in forensic science. The holder of the non-statutory regulator post would be able to continue in office and become the statutory regulator when the relevant bill provisions came into force.

Clause 2 would require the regulator to publish a code of practice about forensic science activities in England and Wales. The regulator would be required to keep the code under review. They could publish alterations to the code from time to time or replace it with a new code. Under clause 3, the regulator could only publish a code, or make alterations to an existing code once:

the regulator had consulted representatives of those carrying out, or likely to be carrying out activities to which the proposed code would apply, and anyone else the regulator considered appropriate; and
the draft had been approved by the secretary of state and both Houses of Parliament.

Clause 4 provides that not acting in accordance with the code would not of itself make someone liable to civil or criminal proceedings. The code would be admissible in evidence in civil and criminal proceedings in England and Wales, and a court would be able to take into account a failure by a person to act in accordance with the code. However, the Home Office explanatory notes to the bill emphasise that it would remain for the court to make decisions as to the admissibility of forensic evidence.

Clause 5 would empower the regulator to conduct investigations. The regulator could use this power if they believed someone was carrying out forensic science activities covered by the code in a way that created a substantial risk of adversely affecting an investigation or impeding or prejudicing the course of justice in any proceedings. The regulator would have the power to require those under investigation to supply information or documents. However, those under investigation would not be obliged to supply information that would breach data protection legislation or certain provisions of the Investigatory Powers Act 2016.

Clause 6 would empower the regulator to issue compliance notices to those covered by the code. Again, this power would apply if the regulator believed someone was carrying out forensic science activities covered by the code in a way that created a substantial risk of adversely affecting an investigation or impeding or prejudicing the course of justice in any proceedings. A compliance notice would require the forensic science service provider to take certain steps to bring them into compliance with the code. It could also prevent the provider from carrying out any forensic science activities until the regulator was satisfied that a step specified in the notice had been taken, or no longer needed to be taken.

Clause 7 would require the regulator to issue a completion certificate once they were satisfied that a step had been taken, or no longer needed to be taken. Anyone subject to a compliance notice would also have the right to apply for a completion certificate at any time. The regulator would have 14 days in which to respond to the application.

Clause 8 sets out an appeal process for appealing against a compliance notice, a decision to vary a compliance notice or a decision not to issue a completion certificate.

Clause 9 would enable the regulator to publish guidance and reports and provide advice or assistance in relation to forensic science activities carried out in England and Wales. The regulator would be obliged to publish an annual report to be laid before Parliament. Clause 9 would also empower the regulator to do anything they thought necessary or appropriate in connection with their functions, except borrow money.

Under clause 10, the regulator could disclose information to other public authorities to assist or enable them to discharge their public functions. However, the regulator could not disclose information that would breach data protection legislation or certain provisions of the Investigatory Powers Act 2016.

Clause 11 defines “forensic science activity” as “an activity relating to the application of scientific methods” for purposes relating to:

the detection or investigation of crime in England and Wales; or
the preparation, analysis or presentation of evidence in criminal proceedings in England and Wales.

The secretary of state could make regulations to add to the list of purposes that are covered by the definition. Any regulations would be subject to the affirmative procedure. They could not include purposes that would be within the legislative competence of the Senedd Cymru/Welsh Parliament.

Clause 12 would exempt Crown bodies, such as government departments, from the investigative and enforcement powers set out in clauses 5 to 8. This exemption would not apply to police forces or any person “serving or employed for policing purposes”.

Clause 13 sets out the bill’s extent, commencement and short title. Clause 13 would extend to the whole of the UK, but the rest of the bill’s clauses would extend to England and Wales only. The bill’s operative provisions would come into force on a day appointed by the secretary of state.

Commons stages

Second reading

The bill’s second reading in the House of Commons took place on 25 September 2020. Darren Jones, the bill’s sponsor, said that giving the forensic science regulator statutory powers was “urgent and necessary […] for the functioning of our criminal justice system”. He explained the connection between the regulation of forensic sciences and a functioning justice system:

Poor-quality forensics, as noted by the regulator, has without doubt led to the failed prosecution of criminals and a failure to secure justice for victims. As it stands, the market for providing forensic services is flawed, with grinding delays, gaps in capacity and skills and real lack of competitiveness. The first step in fixing it is to enable the regulator to enforce effective standards […]

Kit Malthouse, the Minister for Crime and Policing, noted there was broad acceptance across the House that to “improve criminal justice outcomes, a measure of regulation is required to underpin delivery, set standards, improve outcomes and provide the structure on which to build for the future”. He praised the UK’s forensic scientists in the public and private sectors as “some of the world’s best”, but noted they faced challenges including “constrained resources and a growth in the volume of new sources of evidence, in particular digital material”. He expressed his hope that the next forensic science regulator would benefit from the new powers in the legislation.

Bambos Charalambous, Shadow Home Office Minister, stressed the importance of ensuring forensic science standards were met “because of the catastrophic impact on the criminal justice system if they are not”. He said the powers in the bill were welcome, although “long overdue”, as the Government had been talking about making these changes since 2013. Mr Charalambous also argued that given “the substantial cuts and continuing squeeze on police budgets”, as well as financial pressures in the private forensic science services sector, it was important that regulation did not place additional load on an “already overburdened” police workforce or financial burdens on small private providers.

Money resolution

The House of Commons approved a money resolution on 10 November 2020 authorising public expenditure necessitated by the bill. At the time of the 2018 private member’s bill, the Home Office estimated the statutory powers of the regulator would cost around £100,000 a year on top of the existing costs of the non-statutory regulator. This was revised up to £400,000 when the current bill was first introduced in the House of Commons. However, after “more robust analysis”, the Home Office has now revised the estimate down again to £220,000.

Committee stage

Committee stage took place in a public bill committee on 11 November 2020. A series of government amendments were made to the bill, with the support of Darren Jones, the bill’s sponsor, and the Labour Party. The title of the bill was amended to remove reference to a biometrics strategy. Darren Jones said at second reading that the title of the bill anticipated action on a biometric strategy, although the bill itself did not contain any specific provisions on this. At committee stage, Mr Jones agreed to removing this element of the bill’s title, but expressed the hope that “it does not come at the cost of too long a delay” in further primary legislation on the subject, as the Government had promised.

The House of Commons Library has summarised the other amendments made to the bill as follows:

An amendment to clause 5 to allow for persons to disclose information to the forensic science regulator and not breach any restriction on disclosure in doing so, but not if the disclosure is in breach of the data protection legislation or the Investigatory Powers Act 2016.
In clause 8 the express power for the first-tier tribunal to award costs on an appeal under clause 8(1) is removed as the tribunal’s power to do so is governed by existing legislation.
An amendment to clause 8 to allow an appeal to the first-tier tribunal against a decision by the regulator to vary a compliance notice. The amendment also sets out the grounds under which a person may bring such an appeal and the remedies.
An amendment to clause 8 to allow for the suspension of a requirement or prohibition in a compliance notice where an appeal is made to the upper tribunal, while that appeal is made.
An amendment to clause 9 to allow the regulator to provide assistance, not just advice, relating to forensic science activities to anyone. This is intended to remove any ambiguity.
Amendments to clauses 10 and 11 relating to sharing information with other bodies (so that information only has to be shared when necessary) and the limits of the bill regarding forensic science regulation (so that it does not impact on other scientific bodies and regulators).

Remaining stages

The remaining stages of the bill took place on 12 March 2021. No amendments were tabled for report stage and no debate took place. After a short debate, the bill received its third reading without a division. Kit Malthouse said it was “an important bill” that would “put forensics across the UK on a much better footing and increase standards across the board for forensic evidence that is offered in court”. Bambos Charalambous said the measures in the bill were “long overdue” and “should enhance the integrity of our criminal justice”. He said Labour very much supported this. Darren Jones said by putting in force standards for forensic services, the bill would “do justice to the victims of crime and will add confidence in the criminal justice system”.