The Forensic Science Regulator Act 2021: draft statutory code of practice consultation information and response guidance (accessible version)
Updated 13 March 2023
Applies to England and Wales
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Information and response guidance
August 2022
About this consultation
This consultation seeks views on a draft code of practice (‘the code’) to be issued under the Forensic Science Regulator Act 2021. The draft code sets quality standard requirements for forensic science activities undertaken for matters related to the investigation of crime and the criminal justice system in England and Wales.
Representations are welcome from:
- forensic units from the 43 territorial police forces
- commercial forensic science units
- professional bodies
- government departments
- interested groups
- the wider public
The draft code applies to England and Wales, but the Regulator welcomes views from stakeholders from across the UK. The Regulator also welcomes views from forensic science units outside of England and Wales but to whom the code will apply in so far as they carry on activities within England and Wales.
Following the consultation period, responses will be analysed, and the draft code will be revised as necessary. The code will then be sent to the Secretary of State for the Home Department for approval. Following this, the code will then be laid before Parliament for approval. A response to this consultation exercise will be published on Gov.uk.
Duration
The consultation will be open for 12 weeks from 8 August 2022 to 11.45pm on 31 October 2022.
Background
Forensic science is a critical and important part of criminal investigations and the administration of justice, not only to identify offenders and provide expert evidence to the courts, but it is one of the strongest safeguards against false allegation and wrongful conviction. Forensic science examinations carry significant risks, and the consequences of a quality failure can be profound, particularly where there is a system rather than an individual failure. The former could lead to the review of hundreds or even thousands of results generated by a flawed technique or method. The purpose of forensic science regulation is to ensure that accurate and reliable scientific evidence is used in criminal investigations, in criminal trials, and to minimise the risk of a quality failure.
The model for regulation of forensic science in England and Wales is based on each forensic unit implementing and operating an effective quality management system that meets the requirements of the code. This will provide the necessary control of processes and minimise the risk of quality failure.
The Forensic Science Regulator Act 2021 (‘the Act’) received Royal Assent in April 2021. The Act makes the role of the Forensic Science Regulator (‘the Regulator’) a statutory one and requires the Regulator to prepare and publish a code of practice. The Act also introduces new statutory powers for the Regulator to investigate and issues compliance notices where they have concerns about how a forensic science activity is being conducted. The Regulator will be able to issue compliance notices, which will require forensic practitioners who pose unacceptable risk to the criminal justice system to take remedial action or be prohibited from carrying out a forensic science activity.
There is broad support for the introduction of statutory powers, with many reviews and reports over the past decade recommending that the Regulator have statutory powers to enforce compliance with quality standards.
What is the code of practice?
The draft code of Practice (‘the code’) is required under Section 2 of the Act. The code sets out requirements that apply to forensic science activities subject to the code, which provides a framework for forensic units to provide assurance that the forensic science they provide is of an appropriate quality standard.
This code is based on the regulatory model that existed for forensic science in England and Wales prior to the introduction of the Act, which requires each forensic unit to operate an effective quality management system and, where required by this code, achieve and maintain accreditation to a suitable international standard and this code.
The draft code therefore is largely based on issue 7 of the Code of Practice and Conduct, but also contains additions to cover the provisions set out in the Act including Regulator’s investigations, issuing of compliance notices, issuing completion certificates, appeals and other functions of the Regulator.
The code applies to all those undertaking forensic science activities subject to the code, whether individual practitioners, academics, public or private sector or forensic science units. These can be small teams in larger organisations, sole practitioners, or large providers, and can be commissioned by the prosecution or the defence.
The code applies to forensic science activities undertaken for matters related to the criminal justice system in England and Wales.
Why are we consulting?
Section 3 of the Act requires that the Regulator consult such persons as the Regulator considers appropriate before publishing a code of practice. The Act specifies that the persons consulted must include persons appearing to the Regulator to be representative of persons who are, or are likely to be, carrying on activities to which the proposed code will apply.
This consultation is to fulfil the requirements of the Act for a statutory consultation.
Following consultation, the Regulator will consider representations made about the draft code. The code will be given to the Secretary of State for the Home Department for approval, and then laid before Parliament for approval before it will come into effect.
Supporting information
In preparing the draft code, the Regulator has engaged with stakeholders and technical experts, including from forensic science providers, the United Kingdom Accreditation Service (UKAS), and the Forensic Science Advisory Council. The Regulator also made two drafts of the code available for informal comment in January 2022 (‘Version 1.0’) and April 2022 (‘Version 2.0’). Version 1 was a draft of the core code, and Version 2 was an updated core code and the first drafts of the FSA definitions.
The purpose of the Regulator’s engagement was to be transparent in the progress to develop the draft, and to utilise the expertise of the community to refine the draft. The draft statutory code is largely based on the previous non-statutory code of practice and conduct, and the underlying regulatory model of requiring organisations to have an effective quality management system is the same. The Regulator has provided comment on the common themes of the informal feedback comments in the Forensic Science Regulator Newsletter: Number 1.
Information about changes made between issue 7 of the code of practice and conduct and version 1.0 of the draft code made available during informal engagement (eg the introduction of the concept of the senior accountable individual can be found in the ‘note of changes’ in the Forensic Science Regulator: draft core statutory code for comment page.
Supporting information that may inform your response to this consultation can be found in:
- the Forensic Science Newsletter: Number 1
- the UKAS schedule alignment with forensic science activities
The table below provides a summary of changes between the Version 2.0 draft of the code and the consultation draft 08.08.2022 version of the code
| Change | Relevant clauses | |
|---|---|---|
| Text has been added on the role of the Regulator in issuing guidance | 3.1.4 | |
| Text has been added to reflect that a commencement order has been laid to make the Regulator a statutory Regulator | 4.1.1 | |
| Text discussing territorial extent has been combined into one section for clarity | 7 | |
| The section on international obligations has been added | 8 | |
| The summary of requirements table has been added | 9 | |
| Text has been altered throughout the draft code to reflect the position that compliance is with the whole code (rather than to parts such as the standards of conduct) | Throughout, but for example in 15.1.2, the reference to compliance with the standards of practice has been deleted | |
| The section on developing an examination strategy has been added | 21.1.5 | |
| Text has been added to the section on externally provided services, to add detail about how assurance of compliance and competence is received | 22.1.2 | |
| Text has been added about examination facilities and non-dedicated work areas, for clarity and to address increases in home working | 27.1.1 and 27.1.5 | |
| The text of the reference database section has been edited for consistency | 31.1.1 | |
| Text has been added to address temporary storage facilities | 34.4.2 | |
| A requirement has been added to cover the impact on disclosure of activity by the Regulator | 36.1.5 | |
| The text of declarations has changed, to reflect that compliance is to the whole code (rather than parts) | 36.1.10 | |
| Requirements have been added to inform the Regulator, and investigation and prosecution authorities, of any suspension, withdrawal or change in accreditation and the impact of such a situation on cases and reports | 36.1.13 | |
| Text has been added to require SFR1 reports to include a declaration of compliance or non-compliance with the Code | 36.2.1 | |
| Text has been added to explain the position of UKAS as the national accreditation body | 39.2.13 | |
| Text has been added to set out the Regulator’s interpretation and application of the Standards | 41.2 | |
| The forensic science activities have been separated into those subject to this code and those not subject to this code, for clarity | F3 and F4 | |
| The text in the required compliance section of each FSA has been edited to better reflect the Regulator’s intended position | Across FSAs | |
| The sub-activities within FSAs have been split into those required to be on an accreditation schedule if done, and those not required to be on the schedule, to reflect that not all sub-activities can be accredited at this point | Across FSAs | |
| The titles of some FSAs have changed, to standardise the language and ensure consistency throughout the code | Across FSAs | |
| Two drug FSAs (Section 70 and 71 in Version 2.0) have been combined | 56.1 | |
| The forensic database FSAs from Version 2.0 (Sections 105 and 106 previously) have been combined to have one Database FSA | 97.1 | |
| The appendices with specific requirements have been added to the code | F5 | |
| The glossary has been added | 109 | |
| The comparison with normative references section has been added | 110 |
How to respond and contact details
Please send your response by 11.45pm on 31 October 2022.
There are a variety of ways in which you can provide your views.
Through the online survey.
By email to: [email protected]
By post to:
The Forensic Science Regulator
c/o Home Office Science
Long Corridor
14th Floor Lunar House
40 Wellesley Road
Croydon
CR9 2BY
Complaints or comments
If you have any complaints or comments about the consultation process you should contact the Regulator at the above address.
Extra copies and alternative formats
Further paper copies of this consultation and alternative format versions of this publication can be requested from [email protected].
Representative groups
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
Consultation principles, disclosure of responses and data protection
The principles that government departments and other public bodies should adopt for engaging stakeholders when developing policy and legislation are set out in the consultation principles.
The Regulator is the data controller in respect of any information you provide in your answers. Any response that you provide will be processed by the Regulator pursuant to the functions set out in the Forensic Science Regulator Act 2021. The data you provide will be held for a maximum of 2 years. Further information can be found within the Regulator’s Personal Information Charter.
The names, addresses, and email addresses provided by respondents, and information about which organisations respondents belong to will be processed where this is provided. The information that you provide in relation to your responses will also be processed. When the consultation ends, a summary of the key points raised will be published on Gov.uk.
This will include a list of the organisations that responded, but not any individual’s personal name, address, or other contact details. All responses and personal data will be processed in compliance with the Data Protection Act 2018 and the UK General Data Protection Regulation.
If you want some or all of the information you provide to be treated as confidential, please clearly identify the relevant information and explain why you consider it confidential in your response. Please note that the Regulator may be required by law to publish or disclose information provided in response to this consultation in accordance with the access to information regimes: primarily the Freedom of Information Act 2000 and the Data Protection Act 2018 and the UK General Data Protection Regulation. If the Regulator receives any request to disclose this information, full account of your explanation will be taken, but the Regulator cannot give you an absolute assurance that disclosure will not be made in any case. We will not regard an automatic disclaimer generated by your IT system as a relevant request for these purposes.
Once you have submitted your response to the consultation you will not be able to withdraw your answers from the analysis stage. However, under the Data Protection Act 2018 (and the UK General Data Protection Regulation), you have certain rights to access your personal data and have it corrected or erased (in certain circumstances).
You have the right to lodge a complaint to the Information Commissioner’s Office about the Regulator’s practices. To do so please visit the Information Commissioner’s Office website or contact the Information Commissioner at [email protected] or write to:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
- Telephone: 0303 123 1113
- Textphone: 01625 545860
Monday to Friday, 9am to 4:30pm.
If you need any further information, please contact us at: [email protected].