UK-AFI Expert Declarations Advice

The UK-AFI proffers the following advice to our help members understand the introduction of requirements linked to the inclusion of Expert Declarations for Forensic Science Activities (FSA) used within the Criminal Justice System, this advice does not replace internal organisational policies.

The Forensic Science Regulator is a statutory role created via the Forensic Science Regulator Act 2021. In addition to placing this role on a statutory footing the individual who holds the role is required to produce a Code of Practice (The Code). The first version of the Forensic Science Regulator’s Code of Practice was published in March 2023. After a transitionary period the Code of Practice came into force on the 2nd October 2023.

The Code of Practice contains a defined range of Forensic Science Activities (FSA). Where indicated some of these FSA are required to be in compliance with The Code from the 2nd October, some have a delayed compliance date and others have no compliance date indicated in this version of The Code.

The content of this advice must be read in conjunction with the Forensic Regulator’s Code of Practice and Guidance: Declarations of Compliance and Non-Compliance with the Code of Practice FSR-GUI-0001 Issue 1.0.

At this time FSA - INC 102 – Examination of Fire Scenes and FSA-INC 103 – Examination to establish the cause of an explosion, have no date for compliance set within this version of The Code.

There are a number of other FSA which may be performed by Forensic Fire Scene Inspection practitioners, such as:

• FSA – DTN 503 – Examination and analysis of suspected explosive devices and associated material (incendiary devices).
• FSA – MTP 400 – Damage and physical fit (flash damage)
• FSA – DIG 300 – Recovery and processing of footage from closed-circuit television (CCTV)/video surveillance systems (VSS) (creation of master discs)
• FSA – CDM 100 – Case review

This is a non-exhaustive list and individuals are recommended to closely check the range of activities they or their forensic unit perform to confirm the FSA specific requirements for compliance with The Code.

Compliance with the Regulator’s Code of Practice is binary, you are either compliant or not. If a forensic unit is accredited to the relevant ISO standard(s) and in full compliance with The Code and the relevant FSA for their activities, there is no requirement to provide a declaration of compliance on reports. However, where only some of the sub-activities within a FSA are complied with, this is deemed as non-compliance and a declaration(s) will be required to be included on any reports submitted into the criminal justice system. This requirement for the provision of non-compliance declarations also extends to FSA that are not required to be in compliance with this version of The Code.

As FSA INC-102 Examination of Fire Scenes and FSA INC-103 Examination to establish the cause of an explosion, have no requirement for compliance set, there is no direct requirement for a declaration of non-compliance to be provided. However the Forensic Science Regulator’s document “Guidance: Declarations of Compliance and Non-Compliance with the Code of Practice FSR-GUI-0001 Issue 1.0” https://www.gov.uk/government/publications/declaring-compliance-with-the-code-of-practice suggests that the provision of a “Declaration of non-applicability of the Forensic Science Regulator’s Code of Practice” would be of benefit to the criminal justice system.

There is a range of suitable phrase formats that can be used for the purpose of communicating this non-applicability of The Code on reports, though referencing the suggested format as contained in the guidance document at section 4.7.2, a suitable from of words could be as included in the following examples:

“FSA – INC – 102 – Examination of Fire Scenes, is not subject to the Code of Practice (Issue 1) published by the statutory Forensic Science Regulator. Therefore there is currently no requirement to declare compliance or non-compliance with the code.”

Or

“FSA – INC – 103 – Examination to establish the origin and cause of an explosion, is not subject to the Code of Practice (Issue 1) published by the statutory Forensic Science Regulator. Therefore there is currently no requirement to declare compliance or non-compliance with the code.”

In the same way that the inclusion of these declarations in reports is not compulsory, though could be considered to be a demonstration of good practice and for the benefit of the court, the forensic practitioner may also wish to utilise a mitigation table to demonstrate their good practice, in support of the evidence they may wish to provide. The guidance document FSR-GUI-0001 provides examples of mitigation tables in Appendix A.