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Siobhan Gray KC, Joanne Kane, and forensic scientist Jo Millington ask whether the Streamlined Forensic Report procedure is fit for purpose.
Streamlined Forensic Reports (SFR) are a regular feature in the Criminal Justice System and were introduced in 2012 to deliver ‘swift and sure justice’ with the aim of achieving early agreement on issues between the parties, and where this cannot be achieved to identify the contested issues.
In a seminar organised by Carmelite Chambers on Wednesday 3rd July 2019 three leading experts in the field of homicide – Professor Michael Kopelman, Jo Millington and Dr Stuart Hamilton – spoke on issues of psychiatry, forensic science and pathology, respectively, and a re-occurring theme at the debate was streamlined forensic reporting.
Questions were raised about their quality, expertise and their evidential weight and ultimately whether they are undermining the system that they were introduced to protect. The methods forensic scientists use must be scientifically robust, scientifically reliable and understandable to the Court and the jury.
In her most recent annual report, the Forensic Science Regulator, Dr Gillian Tully, urged the Home Office to put forward legislation to enable her to enforce quality standards in forensic science and to deliver a service which is transparent, reliable and fair. There is increasing pressure across the Criminal Justice System to deliver forensic science more quickly and for less money. The faster/cheaper philosophy is epitomised in the Streamlined Forensic Reporting process. This approach was introduced by the CPS to ‘reduce unnecessary costs, bureaucracy and delays in the criminal justice system’, and ‘to ensure that the key forensic evidence that the prosecution intend to rely on is presented in the shortest and clearest way so as to achieve early agreement on forensic issues and to identify contested issues’.
It is implied that the SFR ‘report’ will outline the scientific evidence in such a way that the reader will understand the strengths and limitations of the scientific findings in context of their case, and that it will be upgraded into a court report, which addresses the key issues and satisfies the Criminal Procedures Rules, as and when necessary. Yet, on a regular basis, scientific forensic experts instructed by the Defence are being faced with reports where the DNA evidence has only been conveyed in an abbreviated form, with no opinion from a Crown scientist regarding what the DNA match could mean in the context of the case circumstances. This introduces risk into the Criminal Justice System.
Consider the ‘DNA Stage 1 SFR’ which will typically provide information about the author (sometimes this can be no more than a department or unit), details of the case (such as location and dates) and a summary of the DNA result (the match generated between a crime sample and a named individual).
It may also provide information to indicate if the profiles have been generated using the same DNA technology, or if the crime profile comprises a mixture of DNA, although these details might not be readily apparent to the non-scientific reader. It is deemed to be a key case management tool to ensure effective case management. In a police interview, a defendant may be presented with an SFR and asked to offer an explanation as to how ‘their’ DNA came to be present at a crime scene. You should consider whether you could readily explain, if asked, where your personal DNA, which is invisible to the naked eye, might be. It may also relate to DNA that might have been further transferred by others.
If an explanation is provided by a defendant it is critical that the DNA match is evaluated by the expert in light of that, alongside any proposition that has been put forward by the prosecution. The utility of DNA evidence in the context of an investigation is only fully realised once the individual results have been evaluated in light of the case circumstances.
Yet cases continue to progress as far as trial on the basis of the initial DNA match, even though it is quite clear on the SFR Stage 1 template that the report is not intended for use at court. The limitations of DNA are to some extent rooted in its success. The boom in DNA technology, which evolved in response to the requirement to be faster and cheaper, led to the development of a rich portfolio of specialist and more sensitive techniques. Tools are now available that can generate DNA profiles from minute traces of biological material, whether the DNA is related to the investigation or not.
Scientists no longer need a detectable body fluid or an observable stain for analysis because the standard techniques have the ability to develop information from speculative (invisible) samples; and if they fail, specialist tests can be applied to clean-up, concentrate and optimise the recovery of DNA from the most inhospitable of samples. If, or inevitably when, the resulting profile comprises a mixture of DNA, it is often possible to resolve it into the profiles of the individual contributors and/or simplify it using information that is specific to the case. This is called ‘conditioning’, disentangling the mixed profile on the basis of information relating to DNA that is expected to be there – such as DNA from the donor of the sample. Where mixed profiles continue to be beyond the capacity of standard statistical programs, specialist probabilistic methods can be employed (e.g. likeLTD or STRMix) to simplify up to a point the most complex of mixtures. Before the widespread introduction of these specialist approaches, scientists were permitted to provide a ‘subjective assessment’ of the mixed DNA results that standard methods could not resolve. This involved, essentially, counting the number of DNA components in a crime profile that matched components in an individual’s reference profile, and conveying the extent of the match numerically or in the form of a verbal strength of support. This practice, which was only ever intended to be an interim measure, introduced a grey area in the evaluation of DNA findings that was difficult to standardise.
‘Qualitative evaluations’ are known to be susceptible to cognitive bias and have the potential to be prejudicial, but it was implied that the practice was sufficiently calibrated that it could provide a robust indicator in terms of whether or not an individual may have contributed DNA to a sample. In fact it was scientifically impossible to say one way or the other, simply because the opinion existed in an area that was beyond the scope of any quantitative or empirical data. This practice is no longer supported (or necessary) given the introduction of accredited specialist software. Subjective opinion has not been completely removed, but when a non-numerical opinion is presented, for example in an intelligence report or as a holding position until the appropriate statistical assessment can be completed, it is imperative that the provisional nature of the evaluation is made clear. It is not an evidential opinion and it would be unwise to consider it as such.
Therefore, if the report does not include a statistical assessment of the result, a request should be made for that work to be done before the evidential status of the DNA result is accepted. The restricted format of the SFR also does not accommodate a freestyle presentation of the complexities of DNA mixture interpretation and in some cases an abbreviated [form of] witness statement might be issued.
Abbreviated formats allow scientists to provide a summary of the evidence, whilst embellishing on the nature of the DNA result and its evaluation. It is shortened, typically, by removing details about the qualifications of the author, case and continuity information, and technical detail. It is not unusual for abbreviated reports to focus on the make-up of the DNA result and any possible matches. They may include phrases to emphasise that the expert has not yet dealt with a full interpretation of the findings, but that if this was required, a full statement should be requested through the appropriate Forensic Submissions Unit. It is questionable whether these phrases are recognised as calls to action, or if the consequence of not acting on them is fully appreciated. In practice these caveats are outlining that if a DNA result (for example) is likely to have a leading role in any investigation, a full interpretation must be requested. Interpretation of DNA is multi-faceted. It can involve an assessment of whether the DNA can be attributed to a particular body fluid; as an example, if blood was tested, is there confidence that the DNA came from blood? It can also involve a consideration of the consequences of the DNA findings in the context of the allegations that have been made; as an example, do the DNA findings help in determining how or when the DNA may have been deposited? This is an area of forensic thinking commonly referred to as ‘transfer and persistence’ and there are a number of research publications emerging on this topic which demonstrate that the transfer of DNA is a complex mechanism.
As a consequence of how ‘staged reporting’ has evolved, the way in which scientific findings are conveyed can change significantly depending on when the evidence is introduced into the CJS process. Whether the evidence has been fully evaluated alongside the circumstances of the case, or how the results have been conveyed in a particular type of report, can fundamentally impact the evidential significance of the result. In staged reporting, careful consideration must be given to whether seeking further forensic examination will be beneficial or detrimental to a client’s overall position and must always be a matter on which clear instructions must be obtained. Although an initial report should not be relied upon in isolation, challenging the initial findings may not result in a positive outcome for a client.
SFRs and abbreviated reports may be popular because they are thought to accelerate the crime scene to court process, but if the findings on which the case is built can be neutralised once a full interpretation is conducted, we must consider whether they are fit for purpose. If the findings were evaluated at the outset, it is possible that the investigation strategy, the efforts in building a charge, or the advice to a client, could be more effectively managed.
As a general rule, the advice is that unless the DNA findings have been specifically evaluated in light of the case circumstances, including the scenarios that have been presented by the Prosecution and Defence, their potential evidential significance should be considered as undefined. The growing consensus is that Streamlined Forensic Reports are having a negative impact on the criminal justice process in overlooking quality and increasing the risk of miscarriages of justice cases.
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