The new Forensic Science Regulator guidance states that Experts not holding ISO17025 accreditation must declare this deficit in their reports and also outline the steps taken to mitigate the ‘risks associated with non-compliance’. Allen Hirson sets out the EWI's response.
How the tide changes! It was barely 4 years ago that I caught myself wincing in the face of the widely circulated view expressed by Michael Gove, then Justice Secretary, that “people in this country have had enough of experts”[1]. The matter at issue at the time was of course Brexit, and the experts in question were economists whose views ran counter to that of the government. Compare this bitter rejection of ‘experts’ with Prime Minister Boris Johnson’s press conference on the 3rd March 2020 and subsequently on the need to follow Scientists’ advice on Covid-19, flanked protectively by the Chief Medical Officer and Chief Scientific Adviser.
The 2016 tirade against experts was part of a more general leaning towards populism rather than a missile directed at Expert Witnesses, but my instinctive response was in trepidation of a jury primed in advance to disparage anyone bearing the title. In fact, the attack was a more root and branch affair (e.g. Obrien, Daeid & Black, 2015)[2], and this was reflected in the sustained initiative of the UK Forensic Science Regulator, motivated by the laudable aim to improve quality. And who could disagree? The means of achieving this, however, has not commanded quite such universal approval.
One of the key instruments of the intended reform has been the imposition of the international standards, notably ISO17025. Whereas this may be applicable in some areas of forensic science, in others (such as my own) it is far more problematic. Forensic Science is a patchwork of unrelated fields, including ballistics, facial mapping, fingerprinting, speaker identification and DNA and these use diverse methodologies that are difficult to regulate by a single instrument. In a belated recognition of this heterogeneity, the Regulator recently issued a directive (April 2020 [3]) stipulating that Experts not holding ISO17025 accreditation must declare this deficit in their reports and also outline the steps taken to mitigate the ‘risks associated with non-compliance’.
This, it seems to me, should be a powerful motivation for Expert Witnesses in the forensic sciences, particularly those lacking 17025 validation, to urgently seek EWI membership. Gaining individual membership and certification involve quality testing, the sine qua non of mitigation. Individual EWI membership involves fastidious vetting by experienced Expert Witnesses on the basis of qualifications, references, indemnity insurance and an example report, and the EWI’s certification process additionally involves a test of Criminal/Civil Procedure Rules, an assessed meeting of Experts and cross-examination in a mock court in collaboration with UCL’s Faculty of Law.
Having frequently observed trial Judges jotting down my EWI affiliation as I give live evidence at court, and recalling that ultimately the trial Judge and not the Forensic Science Regulator is the gatekeeper for admitting expert evidence[4], I silently toast the EWI from the Witness Box and have confidence that individual EWI membership and certification will shield us from any ISO17025 challenge that may arise under cross-examination.
FIND OUT ABOUT EWI INDIVIDUAL MEMBERSHIP
Allen Hirson, EWI Board of Governors, Senior Lecturer in Phonetics, Forensic Speech Scientist
References
[1] Michael Gove quoted in the Financial Times, 3rd June 2016.
[2] O’Brien É., Nic Daeid N. & Black S. (2015) Science in the court: pitfalls, challenges and solutions. Philosophical Transactions of the Royal Society of London B Biological Sciences 270(1674) 20150062, doi 10.1098/rstb.2015.0062
[3] Forensic Science Regulator’s Code of Practice and Conduct for Forensic Science Providers and Practitioners in the Criminal Justice System, FSR-C-100 (Issue 5), 2020.
[4] Judge as gatekeeper: see Atkins & another v R [2009] EWCA Crim 1876. Also the Law Commission Consultation Paper No 190. The admissibility of Expert Evidence in Criminal Proceedings in England & Wales, 2009.