Interview met Forensic Regulator Gill Tully

What made the forensic science regulatory system in England come about?

'The post of forensic regulator came about originally after the market was set-up for forensic science. A parliamentary committee in the UK made a recommendation that there should be some form of regulation. In response, the government set up the non statutory regulator with an Advisory Council to assist.'

Was it a matter of principle to decide to establish a non statutory regulator?

'I think it was probably more pragmatism than principle. Once you set up a regulator on a statutory basis, it must adhere to what is written and can do nothing more than that. At the point the regulator was established, it wasn't clear enough exactly what the regulator’s role would be and how that role would evolve. At the time it made sense to set it up on a non statutory basis, to think matters through. What was needed and how to go about it. And I have obviously gone on record many times in saying there is a need for statutory regulation. but I don't have a problem with it having been not statutory in the first instance. In a way, it helped prepare the field.'

In the introduction to your last annual report you used the word ‘market’. Did a commercial element play a role when the forensic regulator started?

'The market came about when the forensic science service was changed to having to recover its economic costs. At that point other competitors could come in and compete for work in the field. But when the system was set up the regulator was not an economic regulator. So there was no role for the regulator in regulating the market or the commercial aspect of that. It was very clearly set up only to regulate quality. I think perhaps one of the problems was that there is no control or regulation for the commercial aspects of forensic science, which meant that over a period of time prices were driven further and further down. That only stopped a couple of years ago.'

Did a decrease in quality go hand in hand with that?

'I don't think it is quite as simple as that. There is a certain extent to which you can drive prices down and increase effectiveness and efficiency. Beyond that point, you start cutting into the ability to invest in innovation, in people, in their training and expertise and investing in continuous improvement. But that doesn't just affect commercial organisations. I would say that it also affects government organisations and policing organisations, if their funding is too low. There’s just a particular amount of funding available to do forensic science. If it gets too low, it will have an impact on quality in its widest sense, particularly around the ability to be more innovative and to develop the skills of leadership for the future.'

What else is needed to improve the system of forensic science?

'The first thing that we need is a better decision-making process. There are 43 territorial police forces in England and Wales, plus a few national organisations. Each of those is run by a chief constable and also has an elected police and crime commissioner or mayor in charge. In all, there are over 86 decision makers when it comes to commissioning forensic science and there is no national single decision making capability. So if there is ever a need to do something on a national basis there isn't a natural route to get that done, unless you are able to persuade those 86 people to all agree that it is a good idea. Whether it is about increasing prices or picking up an approach to contracting, you've got to persuade all those people rather than it being a decision on the basis that this is important national infrastructure and we need to do it.

In the UK, the police are the ones who commission most forensic science. So they place contracts for the provision of forensic science and decide about which work is done within the police force or externally, by a commercial provider. On a case by case basis it is generally the police who commission the initial forensic science. Later on in the process it may be that the defence commissions some of their own forensic science. But the vast majority of forensic science is commissioned by the police.'

Do you feel that things have improved during the years you were active as forensic regulator?

'I think we've changed the conversation somewhat. When I was at the conference of the chartered society of forensic scientists, one thing that struck me was how many presentations were about how we can achieve the standards, whereas 6 years ago a lot of the conversations where about why do we have to do this and how can we avoid it. I believe there has been a shift in attitude and a more constructive approach to how we can use standards to improve the quality of what we're doing.

The challenge to get all the forensic policing investigations to comply with international standards is huge. What they've done in forensic collision investigation is come together and work collaboratively and they've done some brilliant testing and validation. They discovered some areas where they have weaknesses and they've been able to commission new equipment and have improved what they're doing. I think that's what we should be aiming for. It is all about improvement and making positive changes.'

Would granting statutory powers to the forensic regulator be helpful?

'In the UK, we have only had the ability to cajole or persuade and encourage people to comply into going along. What we did not have is a statutory stick. But when statutory powers are enacted, it is always going to be a regulator's last resort. It is so important that people understand why there are forensic standards to raise their own quality rather than ticking boxes just because somebody else tells them to. It should be about an intrinsic need for quality. Statutory powers are a last resort or maybe even a necessary evil rather than the first tool that comes to hand. I think the role of the regulator really comes down to making sure that quality is given the same priority that as all the other urgent things that any organisation has to deal with. I don't think anybody deliberately wants to do a bad job. There are lots of other pressures such as the pressure to deliver on time and costs. I'd say that applies just as much to policing organisations and government organisations as it does to commercial ones. With all those pressures present, you need to make sure that there is an equal pressure on quality so that it doesn't end up as the weakest link.

I think that it comes down to the fact that there are so many competing priorities within organisations. When you get to an organisation that is only delivering forensic science, quality features quite highly. Its reputation lives or dies on the basis of quality. But if you take a police force and consider the pressures that are on the chief constable, the things that are going to keep them awake at night are counter terrorism, child protection and ways of solving crimes. It is not on top of everybody’s priority list to think about forensic science quality. So sometimes you therefore need to have the threat or the risk of enforcement action, to make sure that quality gets the level of priority it needs. It's very understandable that senior leaders have a number of other things on their list. But you've got to make sure that forensic science isn't always losing out to everything else.'

From the judicial standpoint of judges and public prosecutors: should their attitude change to improve the situation for forensic regulation?

'We have a very good basis for expert evidence and England and Wales. It is set quite clearly in the criminal procedure rules and practice directions. But what I would like to see is a little bit more challenge at that point. Sometimes, experts get away with not being fully compliant with criminal procedure rules and criminal practice directions. That is something that could be picked up at the court. I would really like to see defence advocates and judges be more critical when expert evidence is being admitted, considering challenging the admissibility of evidence. And why it is necessary to do so.

I think it's important to help people to adhere to regulations and to step in and help. I don't think you can regulate behind a desk and just tell people what they have to do. A lot of my work was in publishing guidance to help people to meet the standards. There where some areas that they found particularly difficult, like the validation of digital technologies. So there I commissioned new work to see how we could make it easier for people. I think it is better if you can get alongside and help people to achieve the standards then stand back, simply saying: ‘You have to get on and do it’. Whatever standards and whatever organisation I think it's always a balance between setting standards too high and them being unachievable and setting the bar too low so that it doesn't really make a difference. Sometimes people say that an adversarial system isn't suited to science. I don't think actually it makes much difference either way. Because the obligation on the scientist is always to the court and not to who has commissioned them to do the work. And I think it's always incumbent on the forensic scientist to take every precaution to minimise the potential for bias. In a jury system it is more challenging for a scientist to explain in a very straight forward way because you're dealing with such a wide variety of people of different backgrounds and different educational levels. So it is more challenging for the scientist, but in a way that's good discipline because we have also have to explain it to legal professionals in a way that they can understand. It is more of a challenge but that is not necessarily a bad thing.'

Are you still a scientist at heart?

'I am, yes. In fact, I have now taken up a role as a professor off forensic science policy and regulation at Kings College London and I've started my own business to do training and consultancy. But I don’t think I have ever left science. To be an effective regulator in a scientific field I have had to maintain my scientific approach and my scientific way of thinking about all of the issues facing forensic science. I wasn't doing forensic science, but I was actively involved in thinking through the content of the standards and the requirements, so, for example our most recent standard we published, just when I left office, was a standard for development of evaluation opinion and I had a lot of input into the content of that document. So, again, that was scientific as well as regulatory.'