Co-financed by a grant under the European Commission’s AGIS Programme

1. EU Criminal Justice Conference Safeguarding the use of expert evidence in the European Union Tuesday 23 September 2008 Co-financed by a grant under the European Commission’s AGIS Programme

2. Expert Evidence – problem or solution? Chair: Bob Heslett, Vice President, The Law Society Keynote speakers: Lord Goldsmith QC, European Chair of Litigation, Debevoise & Plimpton LLP & Former Attorney General, Andrew Rennison, Forensic Science Regulator Co-financed by a grant under the European Commission’s AGIS Programme

3. Regulating forensic science Andrew Rennison

4. Background House of Commons Home Affairs Committee 1989 House of Lords Select Committee on Science and Technology 1993 Miscarriages of justice cases – ‘forensic science played a prominent part’ Royal Commission 1991 – 1993 Caddy report 1996 Forensic Science Working Group 1997 – practitioner registration Parliament - Forensic Science on Trial 2005 England and Wales – competitive market Scotland and Northern Ireland Law Commission – expert evidence O v e r s e e i n g Q u a l i t y

5. Regulation of standards Practitioner registration ISO standards? O v e r s e e i n g Q u a l i t y

6. Establish quality standards (science) • Monitor compliance Deal with complaints about quality standards • Internal (police) • External (suppliers) Provision of forensic science services • National forensic science databases: • NDNADB • NBIS Ensure accreditation of suppliers and competence of practitioners To provide advice (Ministers, CJS…) and guidance (suppliers) on quality standards Forensic Science Regulator O v e r s e e i n g Q u a l i t y

7. Vision To achieve: comprehensive standards framework provider, practitioner and method (product or service) training level playing field for all suppliers and practitioners UK – wide quality standards maintained in the face of the changing market and increased competition Confidence in the use of forensic science. O v e r s e e i n g Q u a l i t y

8. Strategy Engage with stakeholders Work with delivery partners Rely on the domain experts Identify and manage risk Principles first O v e r s e e i n g Q u a l i t y

9. Principles Overriding obligation to the Criminal Justice System Providers should be accredited by a recognised independent body to accepted standards; Practitioners should be able to demonstrate, through an independent process, their on-going competence and development; Each method should be based on sound science supported by sufficient data to justify its use within the CJS and a robust interpretation model, and, where possible, validated according to accepted scientific procedures; Accountability for standards rests with senior managers; and Records of accreditation, competence and validation must be accurate, retained and available for disclosure through the court process. O v e r s e e i n g Q u a l i t y

10. Scope Forensic science Any scientific or technical knowledge that is applied to the investigation of crime and the evaluation of evidence to assist the courts in resolving questions of fact in criminal cases. Hard sciences. Practitioner Includes the work of all those who contribute to the collection, analysis and reporting of the evidence. UK criminal courts / prosecution process Equipment, scene, victim, suspect, collection, examination, analysis, reporting, evidence……. O v e r s e e i n g Q u a l i t y

11. Specialist groups Quality standards – standards and validation Andrew Rennison The user requirement from the Court perspective Ewen Smith DNA analysis Karen Squibb-Williams Digital forensics Prof Jim Fraser Practitioner competencyDCC Clive Wolfendale Forensic pathology Dr Millward-Saddler Special reviews O v e r s e e i n g Q u a l i t y

12. Law Commission In every trial, juries are required to make determinations of disputed factual issues.  Where to do so requires specialised knowledge, experts in the relevant field are called upon to help the jury interpret the evidence.  This is to ensure that jurors do not draw mistaken inferences from the evidence.  Although juries should not defer to experts' knowledge and opinions, there remains the danger that they will do so, especially if the field of expertise is particularly difficult to comprehend. This gives rise to a real danger if there are legitimate questions about the validity of the expert's opinion.  This may be because the expert's field is a new or developing science with little in the way of peer review, or because there are doubts as to the validity of the methodology employed.  The problem is accentuated if there is no available expert in the same field who can be called by the opposing party to provide an effective criticism. In such cases, the jury may have no option but to defer to the view of the expert. A related problem is that judges, advocates and jurors may not appreciate the limitations of expert – and particularly scientific – evidence. A number of cases in recent years have suggested that these are real difficulties which require a solution.  In this project we are seeking to address the problems outlined above associated with the admissibility and understanding of expert evidence in criminal proceedings. O v e r s e e i n g Q u a l i t y

13. Changing standards framework O v e r s e e i n g Q u a l i t y

14. Other projects Quality standards delivered in-house by police forces Review of the forensic regulatory function Complaints handling Risk management O v e r s e e i n g Q u a l i t y

15. Andrew.Rennison4@homeoffice.gsi.gov.uk

16. Chair: Ian Kelcey, Chair, Criminal Law Society, The Law Society The Prosecution Perspective Karen Squibb-Williams, Strategic Policy Advisor, CPS The Forensic Science Practitioner Perspective Mike Allen, Council of Forensic Science Practitioners Co-financed by a grant under the European Commission’s AGIS Programme

17. Safeguarding the use of expert evidenceThe forensic practitioner and registration Mike Allen Developmental projects consultant to Council for the Registration of Forensic Practitioners

18. Purpose of presentation To explore mechanisms for assessing the quality of an expert witness.

20. What are the qualities of an expert witness? • Competence • Integrity

21. What is competence? • The quality of being competent; adequacy; possession of required skill, knowledge, qualification, or capacity.

22. How is competence measured? • Qualifications. • Reputation. • Years of experience. • Membership of approved professional group.

23. None of the above • Competence is doing what you do properly. • Once you are deemed competent, there is a presumption that you are doing your job to the best of your ability – unless there is evidence to the contrary (integrity).

24. Council for the Registration of Forensic Practitioners • This registration body has over 2700 registrants in nearly 30 specialties (anthropology to linguistics to fingerprints to firearms). • It assesses current case work by peer review.

25. Assessment process • A selection of recent cases is assessed against set criteria by an experienced practitioner. • The forensic process is similar in all disciplines and the assessment process reflects this.

26. Benefits • Independent • Reassures the courts • Mechanism for complaints (Code of Conduct)

27. www.crfp.org.uk

28. EU Criminal Justice Conference Safeguarding the use of expert evidence in the European Union Coffee break Co-financed by a grant under the European Commission’s AGIS Programme

29. The Judicial Perspective Speaker: Mr Justice Fulford QC, International Criminal Court Co-financed by a grant under the European Commission’s AGIS Programme

30. The Defence Perspective Chair: Joanna Evans, Barrister, 25 Bedford Row Panel members: George Gebbie, Advocate, European Criminal Bar Association Neil O’May, Partner, Bindmans LLP Christopher Sallon QC, Doughty Street Chambers Co-financed by a grant under the European Commission’s AGIS Programme

31. George C. Gebbie, Advocate Member of the List Counsel of the ICC Coordinator of the EC BA Expert Witness Project London 23rd September 2008

32. The Policewoman, The Prints and The Treaty of PrÜm Cause for concern in the safeguarding of expert evidence in The European Union London 23rd September 2008 George C. Gebbie, Advocate Member of the List Counsel of the ICC Coordinator of the EC BA Expert Witness Project

33. The Policewoman www.shirleymckie.com

34. The Prints Madrid Train Bombings 11th March 2004

35. The Treaty of Prüm “The aim of the Prüm Treaty is to intensify and accelerate the exchange of information between law enforcement authorities. Data such as DNA, fingerprints and vehicle registration details can be compared and exchanged.”

36. Here!!

37. EU Criminal Justice Conference Lunch Strand Fleet & Bell Rooms Co-financed by a grant under the European Commission’s AGIS Programme

38. A European Union Perspective Chair: Louise Hodges, Chair, UK Task Force Panel members: Anders Aagaard, European Commission Anand Doobay, Partner, Peters & Peters Aled Williams, UK national member for Eurojust Co-financed by a grant under the European Commission’s AGIS Programme

39. EU PERSPECTIVE: EUROJUSTLaw Society 23 September 2008Aled Williams

40. Outline • What is Eurojust ? • The future ? • Treaty of Lisbon • Expert evidence and amendments to Eurojust Decision

41. SOME CJS CO-0PERATION DATES • 1995 Europol Convention • Decision 2009 • 1996 Liaison Magistrates • FR: 12+ LMs • UK: FR ES IT PAK USA • 1998 European Judicial Network+2008 • 2002 Eurojust Decision (revised 2008) • 2007 Treaty of Lisbon

42. Free Movement 30 EU Legal Systems 500m pop.

43. WHAT IS EUROJUST ? • ‘Judicial Co-operation Unit of the European Union’ • 27 MS prosecutors / judges/ police • Fight ‘serious cross border crime, particularly when it is organised, and involves two or more Member States’ - JHA Council Decision of 14 December 2000

44. SOME CRIME AREAS • Fraud • Drugs • THB • Terrorism

45. HOW EUROJUST WORKS • Case Referrals • Co-ordination Meetings • Strategic Meetings

46. OPERATIONAL MEETINGS LEVEL I - meeting F SL BE LEVEL II - meeting D L 27 National Members BE ... ... Concerned NM’s I PL SL D NL UK S UK BE BE BE SL D CONCERNED NAT. MEMBERS + JUDICIAL A/O POLICE AUTHORITIES OF CONCERNED COUNTRIES SL D LEVEL III - meeting SL D UK UK UK

47. Co-ordination meeting

48. Case evolution 2002 - 2008

49. EXPERT EVIDENCE AND EUROJUST ILLUSTRATION Estonian armed gang operating in various MS Europol Liaison Bureaux Eurojust co-ordination re collection of evidence

50. CROSS BORDER FRAUD EUROJUST ILLUSTRATION Boiler room frauds Jurisdiction Territorial; active; passive; universal Practicalities