DPP's Speech to the Forensic Science Regulator’s Annual Conference

Good morning. Thank you, Gill, for inviting me here today, and thank you for the contribution that you and your staff are making to improve the quality of forensic science in the criminal justice system; your work is so important, and I am very pleased to have the opportunity to speak to you all.

I took up my role as Director of Public Prosecutions in November last year. And as DPP I want to build understanding of and confidence in the work of the CPS - to build wider recognition of two essential truths; that we make robust and accurate legal decisions, and we successfully bring criminal cases to court every day, and hundreds of thousands of such cases over the course of a year.

I have seen at first hand in more than three decades of experience at the criminal bar, sometimes defending and sometimes prosecuting in courts throughout the country, the high quality work carried out by the Crown Prosecution Service, alongside the police and forensic scientists.

Our case teams provide an excellent service to the public on a daily basis - and each team plays its part in ensuring that justice is done. So firstly, I’d like to thank you all for your contribution to our common goal.

As I said, I want to build public confidence in particular in our work. And to do so we must make sure we are providing our best service in every single case.

I have been asked to talk to you this morning about the expectations that prosecutors have as to the quality of forensic science, as well as our successes and the difficulties that can arise.

I want to start by briefly explaining our role at the CPS and how that relates to you, before:

• looking at the potential consequences when things go wrong;
• highlighting work by the CPS and police which I think should help avoid errors or failings; and
•  ending with a success story which shows the enormous value of forensic science.

Starting with the CPS, then - our role is to prosecute the right individual for the right offence.

The Code for Crown Prosecutors sets out how prosecutors make the decision to prosecute and the first issue that prosecutors must address is whether there is sufficient evidence to provide a realistic prospect of conviction.

And in making that decision prosecutors need to consider whether the evidence is reliable:
 
‘Prosecutors should consider whether there are any reasons to question the reliability of the evidence, including its accuracy or integrity’

The reliability of witness evidence can be an issue in many cases even if the honesty of the witness is in no sense in doubt. By way of example, juries and magistrates are warned in cases involving identification that mistakes are made even by witnesses identifying someone well known to them. Lawyers sometimes call this the ‘I could have sworn it was you’ test. And jurors will have their own experience and common sense to use in evaluating such evidence.

Expert and scientific evidence will often be technical and complex. Jurors may not have the experience to be able to fully assess the reliability of such evidence and may defer to the opinion of the specialist who has been called to provide expert evidence and indeed they may imbue the scientific evidence and those providing it with a degree of reliability that actually the evidence does not warrant and that the expert himself or herself may not be claiming for it.

And that is why it is so important that everyone involved follows the Criminal Procedure Rules and the associated Criminal Practice Direction, which set out what is required before expert evidence can be admitted. Compliance with the Regulator’s Code of Conduct and accreditation where available are also markers of reliability that can help courts to determine admissibility and assess the weight that can be attributed to the evidence.

There is also a proactive duty on experts to reveal anything which might undermine credibility. That is a duty of candour in which you are not alone; we all share that - and the Crown Prosecution Service certainly shares that duty in relation to all of our casework.

The provisions of Part 19 are many and various but they are perhaps best summed up in the declaration that an expert’s duty is to help the court ... by giving independent assistance by way of an objective, unbiased opinion on matters within his or her expertise ... and that duty overrides any obligation to the party by whom the expert is engaged or paid.

That takes me to the question of the instruction of joint experts which was introduced in the civil courts by Lord Woolf some 20 years ago now, but is not a practice that is used in the criminal courts save sometimes when an expert is instructed by co-defendants. But, notwithstanding that, the rules do make provision for meetings between defence and prosecution experts and thereafter joint statements setting out what is agreed between the experts and what cannot be agreed.

And it is a feature of the changes that followed Lord Justice Leveson’s 2015 review of efficiency in the criminal justice system that there should be more engagement between defence and prosecution before trial. The prosecution is not expected to comb through the haystack of (let’s say) digital evidence, on the look-out for anything which might conceivably or speculatively assist the defence - the defence must play their part in defining the real issues in the case. So they have a crucial role in defining the scope of the reasonable searches that may or should be made.

And that is part of the reason why we have developed the DMD - the Disclosure Management Document - now to be used in most cases in the Crown Court, to encourage communication with the defence at an early stage about what the prosecution view as a reasonable line of inquiry and then to invite engagement from the defence about those inquiries. So if defending, your input into discussions - and that includes discussions about reasonable lines of inquiry - is positively also welcomed.

For more detailed commentary on the Rules, I commend to you the guidance issued by your Regulator on the legal obligations of expert witnesses and the guidance on expert’s statements and reports.

And one of the points I would particularly like to support is the consistent use of agreed terminology in expert’s reports, as the Regulator’s guidance says:

statements should be clear, unambiguous and be capable of being understood by persons (e.g. jurors) who do not have the technical understanding of the witness.

Lord Justice Leveson, I think, mentioned to this conference last year the value of the primers being produced by the Royal Society, and part of their value lies in their definitions of frequently used terminology. It’s a great pleasure to see His Honour Judge Mark Wall QC, a friend of mine, former leader of the Bar, in this part of the world, Senior Judge at Birmingham Crown Court, and who, I think, is part of the steering group in the development of those primers - and all power to all of you who are involved in that work.

Let me then turn to when it goes wrong and the consequences. Many of you here will be aware of what can happen when unreliable evidence, whether that’s scientific or other evidence, finds its way in to the criminal justice system.

Wrongful convictions are the most obvious consequence. The 2011 Law Commission report on expert evidence cited examples of several high profile appeal cases involving unreliable or conflicting expert evidence, including the Sally Clark case. As we know now, Sally Clark was wrongly convicted of killing her two infant sons as a result of flawed expert evidence. The human consequences of wrongful convictions are enormous and the other issues that can arise from unreliable evidence pale into insignificance by comparison to that.

There are other consequences though. As anyone involved in toxicology work at the moment will know, having to repeat work done previously because it has been called into question can cause delays. The retesting of work previously carried out by Randox by other providers has affected the ability of those other providers to take on new work and deal with their current workloads under the usual timescales. Maybe some of you here are involved in that.

Also, if cases are prosecuted but later dropped because they are based on unreliable evidence, it’s inefficient for the CPS, for the courts and for the defence - all committing resources to cases that ultimately do not reach trial.

So, those consequences do not compare with the impact on defendants. Similar considerations apply, though, to victims and witnesses waiting for trials that do not happen in the end. Some of those witnesses, I, have no doubt, include you, as forensic scientists, asked to attend trials which may later be adjourned or even discontinued.

Now what about material that has not been obtained? Miscarriages of justice are not confined to wrongful convictions; dealing with cases justly means not only protecting the innocent but convicting the guilty too. Sometimes the issue is not the reliability of the evidence but the undiscovered content of material that has not been obtained.

That could be the witness who has not been spoken to, the mobile phone that has not been analysed, or the forensic evidence that has not been sought. Material such as that might provide evidence to build a stronger case against the suspect or, of course, it might provide information that undermines the case against the suspect and/or assists the defence case. A good investigator therefore will look at the case from both sides.

It is in the area of digital evidence, particularly mobile phones, that the challenge facing the police, the prosecution and the courts has been the subject of much debate and public concern over the last year. In particular, many of you will have seen the publicity that a number of cases attracted last year in relation to disclosure.

Just to remind ourselves of the legal test - I’m sure you all know it - disclosure is providing the defence with copies or access to material that is capable of undermining the prosecution case and/or assisting the defence.

There is much work going on in this area between the police and the CPS, under the National Disclosure Improvement Plan, to address this problem. Early discussions between investigators and prosecutors to identify what is or is not a reasonable line of inquiry is crucial - not just about mobile phone evidence but all reasonable lines of inquiry, including possible forensic inquiries.

The Code of Practice issued under the Criminal Procedure and Investigations Act 1996 says:

In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances.

And the Code of Practice goes on to give one example of what a reasonable line of inquiry might be: for example, it reads, where material is held on a computer, it is a matter for the investigator to decide which material on the computer it is reasonable to inquire into and in what manner.

It is worth noting in this context the respective roles of the police and the CPS. The police are, of course, responsible for investigating crime (that includes the NCA) - and although prosecutors can and should advise the police, prosecutors in England and Wales cannot direct the police. I know this is fairly simplistic, but I take every opportunity to say it because there are so many people who don’t understand that simple fact. The position in Scotland, of course, is different. The Procurator Fiscal’s office can direct the police and that includes the direction of a forensic science strategy.

What the prosecutor in England and Wales can decide is whether a case should be charged, or, when charged by the police, whether it should proceed to court.

That brings me back to the new Code for Crown Prosecutors, which was revised into its eighth edition by my predecessor in October 2018, a month before I took up this role, to address the issue that concentrating primarily on the evidence and what was known about the prosecution case did not pay sufficient regard to other material that further inquiries might reveal.

Disclosure obligations have been referred to in previous editions of the Codes, but disclosure considerations had never previously been part of the evidential stage of the Full Code Test. In other words, when prosecutors assessed whether the evidence was strong enough to merit a prosecution, they were not formerly obliged under the Code to ask themselves whether there was any other material, which was not part of the evidence in the case, that might affect the strength of the evidence.

We have changed that, so that prosecutors must now direct their minds to this question. Because if they do not do so, the risk is clear - a case may be charged prematurely, only for other material to be discovered or considered at a later date, and if that is found to significantly weaken the prosecution case, we may have to stop the case entirely.

And that other material could be any number of things, importantly including further forensic information or work. This will bring us back to the issue of what is a reasonable line of inquiry and that, as the Codes of Practice say, depends on the circumstances of the case. So that must involve discussions on a case-by-case basis and a mutual understanding of what is reasonable in each case.

When those discussions have taken place it is vital that the resulting evidence is available as soon as possible please to inform our charging decision - I know that is often a challenge with forensic evidence. To provide a good - and fair - service both to suspects and complainants, we need to make our charging decisions as early as possible. But - as our revised Code makes clear - with as much of the evidence as possible.

I fully appreciate that you face your own challenges, so I want to understand how we can work together to ensure that vital evidence is available at the right time to provide a fair and efficient service to all involved in a criminal case.

The challenges that face us are considerable but we must not lose sight of the good work that is done in the criminal justice system. There are so many, many occasions on which we get this right.

I want us all to recognise those achievements, to help to build confidence in the vital work we do. I want to mention, therefore, one recent case that offers us an example of that good work. I say recent but it is both recent and an old case because the crime in question took place back in 1986, but conviction was not secured until 2018, and it is - as many of you will have guessed - the case of Russell Bishop.

Many of you will have seen reports of this case, it featured in a recent BBC documentary in The Prosecutors series, and some of you will have been involved in it.

Interesting case, legally and forensically, but above all it is another reminder of the human consequences that a terrible crime can have on the families and friends of those involved.

So forgive me, the facts: 1986, Nicola Fellows and Karen Hadaway, two friends aged 9, sexually assaulted and murdered in Wild Park in Brighton.

1987, Russell Bishop, tried for their murder, found not guilty by the jury.

That prosecution case in 1987 relied largely on a blue jumper found a mile or so from the crime scene and on a route that would have taken Bishop from the crime scene to his home address. The forensic evidence was that fibres on that jumper came from the victims’ clothing and that paint on the jumper linked it to Bishop.

There was circumstantial evidence too; Bishop had been in the vicinity at the time of the crime and initially claimed to have been present when the girls’ bodies were found before admitting that was a lie. Bishop denied any connection to the blue jumper but his girlfriend, when showed it, immediately identified it as his.

The defence case included suggestions that the blue jumper had been examined on the same workbench as the girls’ clothing and that fibres may have been transferred during that examination.

So, Bishop found not guilty at his first trial, but it was only in 1990, by which time he was arrested again, not for the murders of Nicola Fellows and Karen Hadaway but for a remarkably similar crime; attempted murder and sexual assault of a seven-year-old girl. Convicted, and has been in prison ever since.

The families of Nicola Fellows and Karen Hadaway, who we must salute, campaigned for a retrial of Bishop in relation to their murder but, of course, it wasn’t until the 2003 Criminal Justice Act that the law first allowed for the retrial of a acquitted defendant. Even after that change in the law, a retrial requires the approval of the Court of Appeal and will only be allowed if there is new and compelling evidence.

Sussex Police reopened the Bishop case to look for that new and compelling evidence and it was forensic advances since 1986, particularly as to DNA, which provided it. In addition to the science, one other change in the law helped and provided new evidence. That was the provision that allowed for the wider admissibility of bad character evidence at trial. So Bishop’s 1990 conviction could, if the court allowed it, be used in a re-trial of the 1986 murders.

By the time the Bishop case came back to the Court of Appeal in 2017 the forensic evidence had changed considerably. The blue jumper had by then yielded not just fibres but also DNA evidence. And tapings from the arm of one of the girls taken in 1986 produced evidence of the Bishop’s DNA. Because of the risk of contamination raised at the first trial - the workbench contamination - DNA itself from the cuff of the jumper was not considered reliable enough for use in the Court of Appeal or at trial but DNA tapings taken from the jumper were relied upon.  

In November 2017 Lord Justice Leveson, presiding in the Court of Appeal, quashed the 1987 acquittals and ordered a retrial. That took place last autumn and Bishop was finally convicted of the 1986 murders. Forgive me if you know those facts only too well, but it is, isn’t it, an excellent example of how the criminal justice system can operate successfully; police, forensic scientists, and prosecutors working together to bring a case to justice.

It is of fundamental importance that all parts of the prosecution team operate together and with a spirit of openness and collaboration which allows the systems and processes to work seamlessly and effectively in arriving at the right result as often as is humanly possible.

I close with this comment: systems and processes are operated by humans, so there will sometimes be mistakes. Where that happens, lessons will need to be learnt, failures addressed openly and honestly by us all, that is the only way that mistakes will be reduced.

But there will be - there are - many, many occasions on which we get this right, and I want us all to recognise those achievements, to help to build confidence in the vital work we do.

Thank you.