Streamlined Forensic Reporting

Introduction

The deployment of measures of economic rationalisation across the criminal justice system has led to the introduction of instrumental approaches to the construction of forensic DNA evidence: approaches that dispense with expert scientific evaluation and purposefully limit the amount of contextual information available to the courts. This article explores the economic discourses that led to the introduction of these procedurally novel—but scientifically attenuated—forms of scientific reporting. It focuses on ‘Staged reporting’ and its successor, Streamlined Forensic Reporting (SFR).

The article explores the use of Streamlined Forensic Report Stage 1 (SFR1) reporting as an evidential agonist, one which has been deployed in response to perceived shortcomings in the ability of DNA to answer questions relating to ‘transfer and persistence’. Further, it explores the way in which expert scientific inputs have been limited by a mode of forensic reporting (and case construction) that aims to foreclose discussion of context. Finally, it considers the implications of the introduction of SFR for the role of the forensic DNA expert.

Discussion is placed in both theoretical and practical perspective. It is demonstrated that these developments can be traced to a crisis of governmentality brought about by a confrontation between scientific expertise and the realities of legal fact-finding: a crisis that precipitated the subsequent restructuring of forensic roles. The article also demonstrates the way in which scientifically ambivalent forms of reporting carry the potential to contribute to miscarriages of justice at the pre-trial stage and may ultimately detract from the quality and content of expert scientific opinion, thus affecting the court’s ability to arrive at sound determinations on questions of fact.

Background: The Criminal Justice System Efficiency Program

SFR is an innovative evidential procedure, which was introduced across England and Wales for the purposes of criminal case management and the construction of forensic evidence. Its stated aim is to minimise bureaucracy and reduce unnecessary costs and delays in the criminal justice system. The scheme operates ‘by taking a more proportionate approach to forensic evidence through the early preparation of a short report that details the key forensic evidence the prosecution intends to rely upon’. ¹ The objective is thus to avoid the costs associated with thorough forensic analysis by encouraging an early guilty plea. In circumstances where such a plea cannot be elicited, the scheme aims to secure agreement on forensic issues with the defence at the earliest stage. Should such agreement be unattainable, SFR places an obligation on the defence to identify the problematic issues.

The SFR scheme was established throughout England and Wales as part of the Ministry of Justice’s (MoJ) ‘Criminal Justice System Efficiency Program’, which aims ‘to [modernise] the Criminal Justice System (CJS) by reducing or removing the movement of paper, and people, around the system’. ² The government white paper, Swift and Sure Justice, ³ sets out the objectives of the programme:

From a so-called ‘system’ which operated in silos, we are moving to a criminal justice service where police, prosecution and courts work more effectively together. None of these reforms will compromise historic legal rights or important principles of justice. Rather the reverse: justice must be swift, sure and seen to be done, or it is not done at all. ⁴

The efficiency programme also recognises the critical role that forensic evidence plays in bringing offenders to justice. Hence, the Ministry supports the SFR scheme. This scheme was first introduced in 2008, as part of an initiative by the Association of Chief Police Officers (ACPO) Criminal Justice Business Group, in partnership with the Metropolitan Police Service. It proceeded on the basis of a series of local pilot programmes in SFR. The initial pilot—at Woolwich Crown Court in London—was restricted to cases involving fingerprint identification, firearm and ballistic results and DNA database matches. For all cases involving these evidence types, the forensic science provider was directed to produce a short forensic report. These reports, known as SFR1, were restricted to initial key findings. The reports were not therefore intended to be presented at trial (being limited in scope, frequently based on an incomplete analysis and possibly inconclusive), rather they were intended ‘to elicit an agreement or to enable the defence to simply identify the real issues for trial’. ⁷ In the event that the case went to trial, an extended SFR Stage 2 report was presented, usually in witness statement format.

The evaluation following this year-long pilot found fewer discontinued cases alongside an increase in early guilty pleas (with attendant savings). As a result, the SFR initiative was extended. By November 2011, it included all London courts (with the exception of the Central Criminal Court). A second review followed, focusing on cases that had been processed through Wood Green Crown Court before and after SFR implementation. Similar effects to the prior Woolwich pilot were noted:

early guilty pleas increased from 61% to 84%,

At this juncture, the SFR initiative was picked up by the MoJ’s efficiency programme. The MoJ noted the success of the pilot projects and catalogued the potential benefits, which could be gained from the nationwide introduction of streamlined reporting (particularly with regard to case management). These included

a lower risk of discontinuance, likely to be due to case papers being better prepared and the defence being informed of the evidence at the earliest stage;

At this stage, the CPS reframed the primary objective of SFR in economic terms: specifically, the reduction of ‘costs and delay associated with forensic evidence where such evidence adds no value to the administration of justice’. ¹⁰ The CPS then set out to actively promote the adoption of SFR across the criminal justice system, with a target date for implementation by March 2013. As a result of these efforts, SFR was introduced throughout England and Wales on 2 April 2013. Initially, the scheme was limited to cases involving forensic DNA matches. However, individual police forces were freed to introduce SFR for other forensic types, on their own cognisance. As a result, SFR is currently being used in cases involving DNA matches, Evidential Drug Identification Tests (EDIT), Simple Drug tests, Simple Toxicology tests, Firearms Classification, Footwear and Indecent Images of Children (IIoC). There are further plans to extend implementation to include forensic casework.

The SFR implementation process received active support from both ACPO Criminal Justice and the CPS. The national project was led by Neil Rhodes, Chief Constable of Lincolnshire Police (and ACPO TAM Director of Strategy and Policy: SFR). It was developed, in large part, by Karen Squibb-Williams QC (Strategic Policy Adviser, CPS). The SFR governance structure is now dispersed across multiple agencies, including the Forensic Portfolio Board, Forensic Delivery Board, SFR Virtual National Board, SFR Issues and Consistency Group and a small number of SFR Expert Networks aligned with the categories of SFR evidence (DNA, Footwear, Drugs and Digital). The SFR programme also falls within the remit of the Forensic Science Regulator (FSR) and the United Kingdom Accreditation Service (UKAS).

Criminal procedure rules

The second objective of SFR—as determined by the CPS—is to ease compliance with the requirements of Criminal Procedure Rules (CrimPR). The purpose of the body of CrimPR is to ensure that criminal cases are dealt with justly (as laid out in Part 1). ¹¹ Reaching just determinations in criminal cases entails, inter alia, acquitting the innocent, convicting the guilty, dealing fairly with the prosecution and defence, respecting the interests of witnesses, dealing with cases efficiently and taking into account the complexity of the issues at hand. ¹²

In order to meet the overriding objective of the CrimPR, Part 3 places a further duty on the court ¹³ to actively manage criminal cases. ‘Active management’ is achieved through the early identification of real issues and the early identification of the needs of witnesses. ¹⁴ Part 3 also places a duty on the court to ensure that evidence (whether disputed or not) is presented in the shortest and clearest way.

A similar duty is placed on the individual parties under Rule 3.3, which requires that each party must actively assist the court in fulfilling its Part 3 objectives. This entails both parties entering into active communication at the earliest opportunity (and no later than the day of the first hearing) in order to establish whether the defendant intends to plead guilty or not guilty, and—in the latter instance—the parties must determine which matters are agreed and which are likely to be disputed.

Part 19 (previously Part 33) of the CrimPR places a similar duty on experts to help the court achieve its overriding objective. This duty is not limited to expert witnesses but extends to all of those experts summoned to prepare evidence for criminal proceedings. ¹⁵ The duty is fulfilled by giving opinion that is unbiased, objective and within the expert’s area of expertise. Part 19 also places a special duty on experts to actively assist the court to fulfil its duty of case management under Rule 3.2, in particular by complying with any direction made by the court.

It is clear from the above that the CrimPR provide a clear rationale for the implementation of SFR, in the absence of direct statutory implementation. Therefore, the SFR objectives must be read as facilitating compliance with the CrimPR. With that in mind, it is worth the CPS state that the second objective of Streamlined Reporting (Stage 1):

To provide a stronger basis for Stage 2 forensic reporting through compliance with Criminal Procedure Rules, rules 3.2 and 3.3, which set out the Court Case Management requirements for the early identification of real issues. ¹⁶

Case Law

In addition to citing the need for regulatory compliance, the introduction of Streamlined Reporting is justified with reference to case law. The supporting documentation lists a small number of cases, which are cited in support of the scheme’s stated objectives. The CPS have gone so far as to include excerpts from leading cases in earlier versions of the SFR1 form itself, though these have since been removed.

Particular reference is made to Balogun v DPP [2010] EWHC 799 and R v Chorley Justices [2006] EWHC 1795, both of which are cited in relation to the issue of defence disclosure and the duties owed by both parties to identify the real issues at the earliest opportunity, as laid out in the CrimPR. ¹⁸ Support is also drawn from R v Reed, Reed & Garmson [2009] EWCA Crim LR 2698, paragraphs 128–131 of which emphasise the importance of adherence to Rule 33 CrimPR (now Rule 19). Further reference is made to R v Weller [2010] EWCA Crim LR 724, paragraphs 16–18 discuss the identification of salient issues; R v Butler, Henderson & Oyerderin [2010] EWCA Crim LR 1269, paragraphs 209–214 on case management; the leading case of R v T [2010] EWCA Crim LR 2439 on the duty of expert witnesses to reveal their underlying methodology; and R v Olu, Wilson & Brooks [2010] EWCA Crim LR 2975, which deals with the MG Schedules at paragraph 45. These cases will form the subject of further discussion below.

SFR and Abbreviated (or ‘Staged’) Forensic Reporting

It is important for the present discussion to differentiate SFR from Staged (or ‘abbreviated’) Forensic Reporting. The SFR scheme was not the first attempt by the CPS to create economically efficient forms of forensic reporting. SFR was built on a prior initiative—’Staged Reporting’ ¹⁹ —which was introduced by the CPS Prosecution Team in 2004. The Staged Reporting initiative set out ‘to minimise unnecessary work and delays by focusing on the matters relevant to the case in question’. ²⁰ The Staged Reporting scheme was intended to dovetail with changes to the ‘CPS Prosecution Team Charging Guidance’ polices, which had not previously allowed a suspect to be charged on the sole basis of a DNA match report. However, that policy changed with effect from 1 August 2004. The guidance states that,

The new policy will mean that a suspect may now be charged on the basis of a DNA intelligence match, derived from the scene of the crime, and a sample of DNA kept on the National Database providing there is some further supporting evidence. ²¹

Following the introduction of Staged Reporting in 2004, the Forensic Science Service—by that point one of several forensic science providers within a relatively undeveloped market—noted some encouraging trends. During the 2005/2006 financial year, the service received 1887 requests for abbreviated statements in respect of National DNA Database (NDNAD) match reports. These resulted in 175 requests for a full evaluative (or ‘complex’) statement. The cost of a full evaluative statement was, at that time, around six times that of an abbreviated statement (£600 and £100, respectively). Prior to the introduction of Staged Reporting, all 1887 statements would have been fully explicated, at a rough total cost of £1,132,200. Thus, as a consequence of using Staged Forensic Reporting, the financial costs were reduced to roughly £293,700 (£188,700 plus £105,000). This equated to a saving of £838,500 (74%). ²⁷

The Forensic Science Service (FSS) also noted significant savings in time and resources, resulting from the introduction of Staged Reporting. For example, the time associated with the production of a full evaluative statement (average six hours) dropped to one hour in respect of abbreviated statements. ²⁸ The Staged reporting scheme led to demonstrable efficiencies and it should be noted that it subsists: Abbreviated reports are still routinely produced by some Forensic Science Providers and are actively sought by a number of Police Forces in preference to full evaluative statements.

SFR: Outline

SFR is similar to staged reporting insofar as it attempts to save time and resources. When dealing with DNA profiling evidence, it achieves these aims by presenting only the initial key findings derived from a basic examination of DNA evidence. However, as stated above, there are some notable differences between SFR and other forms of forensic reporting, which make SFR1 unique. The most significant of these is that ‘SFR1 is not a statement upon which the maker of the statement is necessarily qualified to give evidence’. ²⁹

Beyond that, it is difficult to find a coherent description of SFR1 within the guidance notes, ³⁰ in the supporting documentation ³¹ or on the form itself. SFR1 is variously described as ‘evidence’; ‘a summary of conclusions’ ³² ; ‘staged reporting’; ‘not staged reporting’; ‘an abbreviated form of reporting’; ‘information’; ‘a forensic statement’; ‘not a statement’; ‘a forensic report’; ‘not a witness statement or an expert’s report to which Criminal Procedure Rule 33 applies’; ‘(proportional) forensic evidence’; ‘a summary of forensic evidence’; ‘forensic evidence, when agreed, for the purposes of s. 10 of the Criminal Justice Act 1967’; ‘a vital enabling tool’; ‘a key case management tool’; ‘a visual prompt to the prosecution and the defence’; and ‘a summary of expert evidence that is served for the purposes of securing an admission’. ³³

Definitions of SFR are thus diverse and frequently contradictory. Nor are such definitions fixed, being provisional on both the identity of the user and the purpose for which the report is used. ‘For the police investigator [SFR1] is simply used as the initial forensic report…When SFR enters a pre-trial Court Case Management hearing, it becomes a Court Case Management tool’. ³⁴ Thus, SFR1 may be described as a legal chimera designed, not to provide determinative answers, but with the flexibility to serve a multitude of purposes. To better understand its nature and purposes, it is necessary to focus on the procedure of Streamlined Reporting.

SFR Procedure

As stated above, SFR1—being insufficiently robust to meet the requirements of a genuine expert witness statement—is not intended for presentation in court. However, it is designed to dovetail with other pre-trial CPS initiatives, particularly the ‘Early Guilty Plea Scheme’ and the ‘Stop Delaying Justice Initiative’. Thus, the report is designed only to provide the bare minimum of evidence necessary for charging purposes and early court case management hearings. As one forensic DNA expert explains,

An SFR1 is done early in a case. Typically it will be done in a ‘spec case’. [The report] is not done by a scientist. The sample goes to the evidence recovery unit [or the Forensic Science Provider]. A profile is obtained. The profile is loaded onto the NDNAD. The police DNA Unit are informed if there has been a match. They compile the SFR1. (DI) ³⁵

The ‘key findings’, as presented on the SFR1, are brief: typically, they may be comprised of only one sentence confirming a match between the DNA sample and the reference profile. The findings are generally not accompanied by any contextual information, nor by a technical note explaining the procedures from which the findings were derived. Crucially, they contain no evaluation or interpretation of the ‘evidence’.

On the basis of these findings alone, the suspect may be charged. The defence may then be invited to a pre-trial hearing. At the hearing, the key findings will be presented and the defence may be invited to agree the content of SFR1—presented as Form MG22 (B)—as an admission of uncontested evidence under Section 10 of the Criminal Justice Act 1967. The accused may also be invited to plead guilty in order to receive the maximum sentencing discount.

In cases where the defence does not accept the content of the SFR1 report during the case management process, the CPS guidance places the onus on the defence to identify ‘the real issues’. These issues may then be addressed in court as the subject of an SFR Stage 2 report (MG22 (C)). The SFR Toolkit states the purpose of SFR Stage 2 as being,

…to provide further evidence on identified and/or disputed forensic issues emanating from the Stage 1 court case management process. Stage 2 forensic evidence provides stronger and relevant forensic evidence to address the specific case issues that have been raised. ³⁶

When the SFR procedure outlined above is used for the purpose of explicating forensic DNA evidence, concerns may be raised. Contrary to popular opinion, DNA evidence does not provide the CJS with a ‘magic bullet’, which holds the power to provide determinative answers. The ‘answers’—which DNA evidence may or may not provide—are wholly dependent on the questions asked and, crucially, the SFR procedure limits discussion of the DNA evidence to questions of source, and sub-source, attribution. In order to appreciate the serious implications of this procedural limitation, it is necessary to embark on a short exegesis in order to discuss the ‘hierarchy of propositions’.

The ‘Hierarchy of Propositions’

The construction of DNA profiling evidence begins at the earliest stage of a criminal investigation. Investigators select particular items of evidence in accordance with their own experience and overarching investigative protocols. Crime scene technicians thereby begin the process of turning the material scene into what Latour labels ‘inscriptions’, ³⁷ that is, written traces. Once the evidence has been collected, it is stabilised and moved to the laboratory. The forensic science laboratory acts as a crucible in which evidence undergoes further refinement before being translated into a tangible product for consumption within the courtroom. It is here that source materials are converted into statistical data. This is also the site of conflict between traditional scientific methods, economic imperatives and regulatory protocols.

Scientific truth claims regarding DNA evidence are currently explicated using Bayesian probabilistic reasoning. Indeed, the Bayesian approach to probabilistic reasoning is now a central feature of DNA ‘casework’. Bayesian reasoning derives its strength from its flexibility and its capacity to assimilate new facts under fresh hypotheses. Rather than applying a rigid formula, the forensic scientist—taking into account the surrounding facts of the case—is freed to construct various sets of alternative propositions. Therefore, the construction of propositions under the Bayesian approach is highly dependent on context. Although this approach is designed to promote a balanced view of the evidence (and achieves a degree of transparency in respect of its underlying assumptions), the framing of alternative propositions remains a difficult process. As Cook states,

In practice, the propositions that are addressed will depend on the circumstances of the case, the observations that have been made, background data that is available and the domain of expertise of the scientist. ³⁸

Level 0 and I propositions are made from observations, measurements and analyses. The prosecution proposition will be determined from a comparison between two samples and the defence proposition will be determined by considering one of these samples in reference to an external population (such as the NDNAD).

OPEN IN VIEWER

III	Offence	Miss X assaulted Mr Y
II	Activity	Miss X is the person who stabbed Mr Y
I	Source	The blood on Miss X’s clothing came from Mr Y
0	Sub-Source	The DNA on Miss X’s clothing came from Mr Y

Level II propositions relate to activities. These too are based on observations, measurements and analyses. However, in order to construct an activity proposition, the scientist must take account of the circumstantial framework. The scientist will need to exercise judgment in relation to the construction of Level II propositions and will require as much information as possible regarding the circumstances of the case. This will entail some degree of interaction between the forensic scientist and the investigator or prosecutor.

Another notable feature of Level II propositions is that they may be constructed in respect of a complete absence of source material. They might also take into account the possibility of contamination or the manufacture of evidence.

Level III propositions relate to the commission of offences. The forensic scientist, in his capacity, as expert witness, is forbidden from expressing an opinion on the ultimate issue. However, the three generic grades are not rigidly demarcated and it may be possible to construct propositions that approach the ultimate issue without encroaching on the responsibilities of the trier-of-fact.

The ‘case assessment and interpretation model’ was designed around the hierarchy of propositions. It may appear relatively unproblematic when presented in its basic form. However, both its history and practical application reveal some areas of concern. Case Assessment and Interpretation (CAI) was developed by a management and advisory working group within the Forensic Science Service. The objective of the model was,

To enable decisions to be made which will deliver a value for money service meeting the needs of our direct customers and the Criminal Justice System. ³⁹

An analysis based on Level II (activity) propositions will be of greater use to the customer than a Level I analysis that is confined to source material and may also offer greater value for money. Forensic scientists are therefore encouraged to address their analyses to the highest propositional level possible, stopping short of an opinion on the ultimate probandum:

…in some cases the scientist might be able to address propositions which are quite close to the deliberations of the court such as ‘this is the person who murdered the victim’; in other cases it might be necessary to settle for propositions further removed from the ultimate issue such as ‘these fibres came from that garment’. ⁴⁰

The final phase, service delivery, accounts for the forensic scientist’s main examination. Products are commissioned in light of prior assessments, and—following a consultation with the customer—source material is analysed, results are interpreted and a report is drafted. The fact that the expectations were noted before the examination is carried out is a measure designed to counter any accusations of post hoc rationalisation. However, this safeguard is compromised by the recursive, as opposed to linear, nature of the CAI process.

The CAI model, being designed to meet customer requirements, has a strong iterative element. The propositions and expectations laid down in the second phase are subject to review, reframing and modification in light of the results of the material analysis and the availability of new information. The FSS stated that,

There are many reasons why both propositions and expectations might change as a result of unexpected developments during the examination. There should be a continuous process of review and, where necessary, further consultation with the customer. ⁴³

Problems relating to the lack of reliable data on DNA transfer and persistence are compounded by the increasing sensitivity of DNA-testing protocols, which now regularly pick up results from ‘touch DNA’, shed by (multiple) individuals and transferred from person to person and between surfaces. The following extended discussion from a field research interview highlights the difficulties posed by ‘transfer and persistence’:

[When dealing with activity-level propositions] we’re onto ‘how’, ‘where’ and ‘when’. And this is ‘transfer and persistence’. This is the bit that nobody thinks about. Because the SFR said, ‘one in a billion’, and the name of the individual who they got off the database. (HT)

It may be argued, therefore, that ‘transfer and persistence’ issues pose a serious threat to the ongoing utility, and legitimacy, of DNA profiling evidence: a threat that has elicited a creative rejoinder.

SFR as a Response to ‘Transfer and Persistence’ Problems

The design of the SFR procedure displays certain features that could be interpreted as a direct response to the ‘transfer and persistence’ issues raised above. Indeed, the third objective of Streamlined Reporting may be viewed in terms of an attempt to overcome the evidential hurdle posed by such activity-level problems. The SFR supporting documentation goes as far as to state that ‘cases will be built in accordance with the defence account’ as opposed to ‘the defendant building a case around the evidence presented’. ⁴⁵ Thus, it may be argued that SFR1 is designed to keep forensic evidence confined to the source and sub-source level. It acts as an evidential agonist: one that is intended to provoke a response. The National Policing Improvement Agency are explicit regarding this strategy, which is intended to elicit a response to the production of (sub)source forensic evidence as early as the pre-charge police interview phase:

Premature reference to forensic investigative material before an interview may provide the ‘guilty’ suspect with an opportunity to fabricate an explanation to support a claim of lawful access or to give a false account to explain the reasons why the material exists. Innocent suspects should have nothing to fear from material not being revealed, provided they are aware of what is alleged against them. Indeed there will be occasions when it is to the advantage of the innocent person to be allowed to provide a full and uncontaminated account without knowledge of some of the material. Equally, guilty suspects may wish to give a full, honest and uncontaminated account of what occurred because they wish to obtain maximum credit in any later proceedings. ⁴⁶

Nonetheless, forensic practitioners remain sceptical regarding the level of information provided on SFR1, which may form an insufficient basis for any coherent discussion between the parties. ⁴⁷ There are also concerns regarding the degree to which the defence may be aware of the serious limitations of the forensic evidence adduced, when presented with (sub)source attributions in SFR1 format (see below).

The dramatic increase in the sensitivity of DNA profiling systems raises further concerns. High sensitivity now enables scientists to construct DNA profiles from very small quantities of ‘touch’, or low template, DNA. However, that same sensitivity entails that samples routinely produce ‘mixed’ profiles containing the DNA of two, or more, individuals. It can become overwhelmingly difficult to de-convolute samples in order to differentiate ‘signal’ from ‘noise’, and thereby arrive at sound determinations of questions of fact. Such deficiencies place further strains on the SFR process. Thus, it may be argued that analytical problems (associated with the allocation of limited resources) may in turn be aggravated by extraneous technological, procedural and physical factors, all of which can increase the cost and complexity of a forensic analysis, itself of questionable probative value.

The Rhetoric of SFR

The SFR scheme has not been placed on a statutory basis. Therefore, attempts to both ground it in law and signal legitimacy have relied upon the selective incorporation of quotes from leading cases, alongside endorsements from high-status members of the legal profession. The earlier versions of the SFR1 form were notable for the inclusion of the following exhortatory and cautionary excerpts from Appeal Court cases:

Balogun v DPP [2010] EWHC 799: Leveson LJ: ‘For my part, I do not accept that the spirit or letter of the Criminal Procedure Rules is complied with by asserting that the Crown is put to ‘strict proof’’

R v Chorley Justices 2006 EWHC 1795. ‘If a defendant refuses to identify what the issues are, one thing is clear: he can derive no advantage from that or seek, as appears to have happened in this case, to attempt an ambush at trial. The days of ambushing and taking last minute technical points are gone’.

R. v Reed, Reed and Garmson ⁵⁰ is also cited in supporting documentation as authority for the assertion that both parties must identify areas of agreement and disagreement within experts’ reports. It concerns itself with the regulation of the conduct of parties with regard to expert witnesses under Rule 33 (now Rule 19) of the CrimPR. However, it is questionable to what degree this applies to SFR1 reports, given that these are not expert witness statements.

There is a further aspect of the Reed judgment, which may have a direct bearing on the use of Streamlined Forensic Reports. Reed states unequivocally that the real issue when dealing with DNA evidence is not ‘whose DNA it is’. The issue is ‘how did it get there’. Given the persuasiveness of this judgment, it is difficult to see how a form of reporting that purposefully avoids discussion of forensic DNA evidence on the activity level can be said to be of any utility when attempting to focus on the real issues. It is, arguably, for the purposes of the CrimPR, an investigative cul-de-sac.

Further, the supporting documentation states that SFR1 may be used to provoke further discussion. However, it could be argued that such a veiled and incremental approach to the issue of disclosure in criminal investigations runs contrary to both the Practice Directions and the ‘spirit and letter’ of the CrimPR alluded to in Balogun.

As stated above, Part 3 of the CrimPR places a duty on the court to ensure that evidence (whether disputed or not) is presented in the shortest and clearest way. The SFR guidance and supporting documentation justifies both brevity and clarity with reference to this rule. However, it is debatable to what degree brevity and clarity can be conflated. During field data collection, many informants expressed the view that the ‘evidence’ communicated on the SFR1 form is disproportionately brief, and hence unclear. Indeed, excessive brevity may be especially problematic when dealing with expert scientific evidence, which is relational and highly dependant on context. To force experts to jettison context may be to ignore the needs of witnesses contrary to the CrimPR 3.2(2)(a) and (b). The SFR1 procedure may sidestep such a duty by ensuring that it is not the scientist—but rather the (non-expert) compiler of the report—who is called as a witness. Again, it is difficult to see how such an approach, which may lead to the obfuscation of the real issues, can be reconciled with a candid exploration of the genuine issues: an exploration that adheres to both the spirit and the letter of the CrimPR.

It may also be argued that the underlying reasoning, which informs the SFR, is flawed. When attempting to justify the process, the SFR documentation resorts to a series of circulus in probando (instances of circular reasoning). ⁵¹ Indeed, it may be argued that the purpose and objectives of the SFR process are based on a series of logical fallacies:

[The purpose of SFR Stage 1 is to] provide a stronger basis for Stage 2 forensic reporting through compliance with Criminal Procedure Rules…. ⁵²

To reduce costs and delay associated with forensic evidence where such evidence adds no value to the administration of justice. ⁵³

Not guilty files and contested cases are to be built according to real issues. ⁵⁴

An improvement in the early guilty plea rate resulting in fewer cases coming to trial unncessarily. ⁵⁵

[SFR] is a two stage process of which the purpose is to deliver forensic evidence proportionate to the needs of the real issues in each case. ⁵⁶

Field Research Data on SFR

During the field data collection phase, semi-structured interviews were conducted with forensic DNA Scientists representing both Tier 1 front-line providers and Tier 2 defence-oriented Forensic Science Provider (FSPs). The majority of those interviewed had over 10 years of experience, in many cases having commenced their careers with the FSS. Others were trainees who had recent experience of marketised forensic production. In addition to forensic DNA experts, interviews were conducted with legal practitioners (solicitors, judges, advocates and QCs), members of the CPS (including the Strategic Policy Unit that developed the SFR system), Her Majesty’s Inspectorate of Constabulary, the UKAS and other associated professionals. During the data collection phase, an overwhelming majority of scientists expressed a desire to discuss SFR. One scientist was particularly interested in the continued utility of abbreviated statements and produced a Home Office internal memo from 2013, which explained the difference between abbreviated statements and SFR:

So the management driver, or the financial driver is there to have a significant difference in between an abbreviated statement and a full statement. However, to serve the court and to be fair to the defendant, that defendant has to know, because I mean the purpose of this is, if it’s, you know, overlaps a little bit with the SFR, it is to identify those issues up-front. So, for me, I think the defendant needs to have full visibility of what the evidence is that’s against him, what that has been based on, exactly what the findings are, and that disclosure has to be available for that person, but then, as I say, also there needs to be a clear difference between an abbreviated statement and a full statement. (PT)

These examples, from forensic scientists working in ‘defence-oriented’ (Tier 2) laboratories, reveal procedural concerns arising from tensions between the reviewing laboratory and the police, as well as with those who carried out the initial analysis.

One scientist drew attention to a more specific example of procedural irregularity. This involved the comparison of DNA samples with ‘expired’ reference profiles, in contravention of the overarching regulations. The scientist viewed this as essentially an interpretative—rather than a procedural—lapse.

Pre-2005 barcodes reflect DNA1 and DNA2. We are now onto 93…but barcodes beginning 95…or below need a second sample to be taken. They’re no longer allowed to be used in court yet they are slipping through. These are factual errors. (DI)

Another scientist indicated that source-level attributions were being presented on the basis of sub-source analysis, revealing a further way in which fact determination may be negatively affected by procedural mechanisms.

With SFRs there’s no record of where the swab was taken from. They swab a stain then state that the DNA came from blood but they haven’t done the KM ⁵⁹ test so we can only say that it’s biological material. (MB)

The danger is that the division between the stain and the DNA result means that one may not be related to the other. There’s no context. (SS)

Informants were asked whether the deliberate separation of tasks between the analysis of the sample and the compilation of the report represented a particular form of ‘case fragmentation’. Their responses were illustrative of the degree to which organisational choices could affect scientific enquiry and fact determination.

Many police forces have an in-house team called the Evidence Recovery Unit. So, for the Met, the ERU send the recovered samples to LGC or Cellmark. They profile them and send the results back on a results table. The Met scientist hasn’t seen the actual result or the reference sample. (PT)

The Met may collect samples, process some in-house, send others to an FSP, with nobody getting an overview. The work becomes less interpretative. (DR)

With the Met lab, one scientist is simply quoting another scientist, and that is not necessarily made clear. (SS)

Quoting between scientists was highlighted as a particular problem, especially where one scientist lacked relevant expertise. A defence scientist produced a case file, contents of which demonstrated the ways in which separation of tasks, quoting and incorporation of passages between reports may mislead as to the quality and provenance of the report:

So, this individual [indicating the original examiner] has not had DNA experience…and talks about ‘the sample that we submitted for DNA’. She understands that a mixed DNA result was obtained, which had at least three people in it…so, she’s essentially paraphrasing the wording from the original scientist. This result, this statement, doesn’t give us any context on the strength and limitations of this DNA result. It just basically cuts-and-pastes from the scientist’s statement. (SJ)

So, they’re now trying to develop a procedure where the Metropolitan Police can use the reports, or the outputs, of the DNA scientist and can incorporate that into their statement. But, by any other name, that’s hearsay. (DR)

Informants were asked whether the SFR process was affected by the increased sensitivity of analytical protocols and a resulting increase in the delivery of mixed profiles. They indicated that the interpretative process had become regulated and reduced to a formulaic procedure in which outputs were interpreted according to a rigid, tabulated, administrative procedure.

Where there is a major/minor sample, the scientist is not able to compare the two samples. The administrator has a table which s(he) consults. So the report is often factually inaccurate with regard to match probability. (DI)

Discussions with DNA experts tended to revolve around the loss of expert evaluation and interpretation in the SFR process and the concomitant loss of contextual information.

The NDNAD was never designed to be an evidential tool. The use of SFRs mean that some [defendants] are cornered. The SFR statement is portrayed as facts and [the defendants] aren’t fully informed that they aren’t facts. (MB)

SFR1 is all factual and reads in a way that sounds very bad for the accused but it lacks context. (SS)

You are asking someone to plead on the basis of incomplete information. Even if it is complete, nowhere does it tell them about the limitations of the evidence. It’s a one-size-fits-all solution. (KB)

Informants also indicated that, based on their experience, a complete absence of contextual or explanatory information made the SFR1 difficult to challenge. Comments supported a view that SFR dovetails with a prosecution strategy: one that seeks to establish links on the sub-source and source level while foreclosing discussion of exculpatory information on the activity level.

Absolutely. Cannot agree more. And in fact, there’s obviously a very strong cohort of individual scientists usually, who feel that they’re misleading because (a) they don’t allow a scientist to talk about the context because they’re very formulaic and (b) they don’t provide any sort of context to the findings. (DR)

depending on how that’s put in interview, there’s such a massive preconception in the general public about what DNA evidence means, whether it’s fair to the defendant to just put that to him or her and how open that is left to them to contest it and realise what it does actually mean and what options they’ve got at that point. (PT)

Yes. Because there is not technical note and so little information, it’s very hard to challenge. A lawyer wouldn’t know what to challenge and a defendant couldn’t get the funds to challenge it. (MB)

SFR1 works well for ‘volume crime’ but where do we draw the line? There’s a grey area. Vulnerable individuals may plead guilty on the strength of the SFR1 and these may never be picked up. Especially where they are on legal aid. (DR)

A unique feature of the SFR procedure is the restructuring of forensic identities, particularly the attempt to replace scientific expertise with technological proficiency and administrative regulation:

Nobody knows their roles when it comes to SFRs. (KB)

The police are directing scientists to do a basic task but there’s more to interpretation than numbers. The problem isn’t limited to the police. The lack of awareness about SFRs among solicitors is a worry. (SS)

…it must be difficult for a defence lawyer, perhaps, to themselves understand the technicalities or maybe even to get, to be able to get the legal aid, to then, you know, to challenge it because there’s just so little there. So how do you explain what they want? (PT)

With SFRs they’ve taken the expert out of the process. Previously, the expert had an overview. Now, its only when the defence gets it that we have the necessary overview. (FE)

So, yes, as I say, I think the purpose of them and why they’ve come about is for very good reasons but because of the lack of understanding of all of the stake holders in it that’s where it falls down. And isn’t fit for purpose necessarily. (PT)

Theoretical Analysis: Autopoiesis

The objectives of SFR, as stated by the MoJ, refer to the need to move beyond a ‘so-called system which operates in silos’ towards an effective multi-agency partnership. This impulse to reconcile the truth claims of agents from competing disciplines, each grounded in its own epistemological traditions, resonates with the autopoietic theoretical perspective.

Autopoietic theory proposes that society is made up of a number of self-contained sub-systems, each of which is cognitively open to its environment but normatively closed. The consequence is that only cognitive data can enter the legal system, whose binary coding (lawful/unlawful) allows it to filter resonant stimuli without ever being aware of the nature of the information that exists within, for example, the forensic scientific sub-system.

Therefore, any attempt to investigate law’s interactions with expert truth claims from an autopoietic perspective will concern itself with the way in which the legal sub-system filters forensic scientific communications and reconstructs them according to its own logical imperatives. The SFR scheme provides an opportunity to explore an instantiation of legal autopoiesis, particularly the ways in which certain non-legal discourses are deemed capable of reproduction within the legal sub-system, while others are disqualified. Thus, autopoietic theory may shed light on the nature of the relations between the filtering processes and the epistemic authority of competing discourses.

In conducting such an analysis, the focus of inquiry must converge on the structures and processes that govern interactions between law and the discourses of the forensic scientific sub-system. It should be noted that these autopoietic discourses are marked by ‘semantic closure’, such that the sub-systems to which they correspond share no substantial or teleologic rationality: a discourse emanating from a competing sub-system must function as a text congruent with the semantics of the legal sub-system in order to register as a perturbation. Only then will it manifest itself as a stimulus capable of triggering a response. The criterion for successful entry into the legal sub-system is the ability of an external discourse to create internal resonance. Once resonant events in the external environment ‘enter’ the domain of legal communications (by means of simulacra created within the system environment), they are inevitably transformed or reconstructed by the legal sub-system in ways that allow for conversion into events recognisable as legal communications. Further, the recursive application of these ‘internally constructed externalities’ allows for the creation or confirmation of rules to govern further reconstructions of similar events.

As soon as the relationship has been established between law and events in other systems, the way is open for the coupling to continue and for future events in the social world of a similar nature to automatically give rise to shadowing within the legal system. In the language of autopoietic theory, a perturbation in the social environment that enters the meaning-system of law creates a structural coupling at the point of perturbation between law and any other systems, both social and psychic, involved in generating the perturbation. From this moment, developments within non-legal sub-systems are coupled with parallel but independent developments in the legal system through linkage institutions that bind law to diverse social discourses.

Structural coupling is but one example of a variety of processes that bind law to diverse social discourses. Alternative outcomes are possible, dependent on the interaction of elements and system processes (emergence, interference and interpenetration). The ‘transformational grammar’ of the interactions between the legal and forensic sub-systems provides a good example of structural coupling. However, that does not adequately explain the way in which the instantiation of expert witnessing known as SFR governs the creation of legal truth claims. SFR utilises specific rules and constraints as well as employs particular connections that govern selectivity and filtering. In order to better understand the ways in which distinctive discursive outcomes may be attributable to the unique features of Streamlined Reporting, it is necessary to discuss the role of meaning and power in autopoietic theory.

As noted above, the legal sub-system is cognitively open but normatively closed. Thus, it is for the legal sub-system to impart meaning onto those messages that resonate with the binary coding lawful/unlawful. Crucially, the meaning of a message depends on the context of the message, i.e. the set of possible messages from which it is selected. Since the context of a message cannot be communicated or directly observed, the meaning of a message is always inferred by the (legal) observer. Inferences with regard to the meaning and context of forensic knowledge imparted by Streamlined Reports are shaped through a reductive process, which constrains the set of possible messages, from which the content of the report is selected, to a further binary: match/non-match. As King states,

The normative communications of other systems cannot simply be reproduced by law as legal communication. They first have to be reconstructed as law if they are to become accepted as law, and this reconstruction process may well give rise to unforeseen distortions and reductions to the meanlng of the original communications as they were formulated in [other] systems. ⁶⁰

Although autopoiesis does not address hierarchical or hegemonic issues as directly as other theoretical perspectives, it nevertheless takes account of inequalities of power and domination of one sub-system by another. As King states,

the relationship between social meaning systems is not necessarily one of equality. Although it is theoretically possible for each social system to reconstruct every other system according to its own procedures and to attribute its own meaning to that system, those systems which are widely accepted as defining meanings for the whole of society are in a much more powerful position than others. ⁶¹

Theoretical Analysis: Governmentality and the Restructuring of Forensic Identities

Commentators have tended to view law and forensic science as operating in silos. This fits with a narrative in which improved communication and an understanding of each other’s needs may lead to positive creative tension and the co-production of knowledge. However, what is revealed by observation is the co-option of scientific processes, the reformation of forensic roles, the recreation of forensic identities and the instrumental use of technology to add scientific status to a process of legal fact-determination. These observations can be explained with reference to the processes of economic rationalisation. However, it is necessary for the purposes of this article to develop a more nuanced understanding of the developing nature of rationalizing processes.

Scholars of marketisation, and those who chronicle its effects, have hitherto been content to base their analyses on a relatively fluid understanding of the concept: one that has been used across many domains, to many ends, and is frequently accompanied by ‘considerable imprecision, confusion and controversy’. ⁶³ Garland argues that rationalising processes,

…lack a strict logic or tight conceptual structure. Rather, [they form] a ragbag of techniques, models, analogies and recipes for action that are loosely bound up together by their appeal to economic rationality. ⁶⁴

For example, Lawless and Williams addressed the relationships between the legal and forensic fields, exploring how they ‘combine in a mutually constitutive relationship to (in)form a mode of production of scientific commodities purchased by the police in support of criminal justice objectives’. ⁶⁶ According to them, commercialisation is a strategic goal, pursued in order to further ‘neoliberal market-oriented sensibilities’. ⁶⁷ Hence, their focus is on customers and suppliers, productisation and service delivery. ⁶⁸

Marketisation has disrupted techno-social ‘expert’ networks, to be sure, but the purpose of such disruption is to render scientific expertise open to economic rationalisation and to reform the roles and identities of the individual forensic experts who comprise these networks. Market rationality restructures organisations in a way which renders their boundaries porous and renders processes more amenable to instrumental policies, but with the strategic goal of restructuring people. ⁶⁹ Thus, productisation and marketisation are merely examples of the reformation of processes, conditions and mechanisms, which are necessary precursors to the readjustment of attitudes and behaviours.

The ambivalence shown towards forensic expertise by the SFR scheme may appear paradoxical from an orthodox perspective, given the central role of scientific status in the co-production of legal knowledge. However, this jettisoning of expert inputs can be explained. Forensic expertise is necessary in the early stages of market development, during which the legal system borrows from the rhetoric of expertise and scientific superlativity. In the latter stages, the legal system confronts a crisis of governmentality brought about by a confrontation between scientific experts as key personnel and the realities of legal fact-finding. However, evolving institutional arrangements allow for the restructuring of forensic identities in accordance with the needs of the legal system, as described above:

That’s another difference between here and the FSS because we used to have a tripartite agreement between the forensic science provider - the FSS - and the police and the CPS and I think we’ve lost that link with CPS now. There’s very little input. Instead of having this triangle where we’re all talking to each other I feel like we’re behind the police, and the police will then talk to the CPS. (PT)

Conclusions

This study demonstrates that a strong link exists between the introduction of measures of economic rationalisation and a reduction in the thinking time available to the forensic scientist. This limitation constrains the process of contextual investigation that is essential to the Case Assessment and Investigation process. These restrictions have been aggravated by a marked tendency to triage cases prior to forensic investigation and by systematic attempts to limit activity-level DNA profiling analyses.

The study also exposes significant problems related to the ‘de-skilling’ of those forensic-scientific actors responsible for the construction of DNA profiling evidence. The study supports the view that the ultimate goal of the economic rationalisation of forensic expertise has been to disrupt, and reform, the attitudes and expectations of forensic science providers and to reconstruct forensic identities, in order to realign these with the economic goals and perceived needs of the investigating and prosecutory authorities. This disruption of techno-social expert networks has largely been achieved through the instrumental use of novel forms of forensic procedure, of which SFR is the most extreme example. The study also demonstrates that scientifically ambivalent forms of reporting carry the potential to significantly diminish the quality, and content, of expert scientific opinion and may ultimately affect the courts’ ability to arrive at sound determinations on questions of fact.