Michel Smithuis*
Safeguarding the quality of forensic experts: the current position
The Netherlands Register of Court Experts (Nederlands Register Gerechtelijk Deskundigen - NRGD) was established by law in 2010 in order to safeguard the quality of forensic experts in criminal cases. It was felt that there was a need within society, the judicial system and the political arena for the objective and transparent safeguarding of the quality of expert reports. 4 years on, the register has been populated in 10 areas of expertise: 700 experts have been assessed, 20% of them were denied registration.
This article is in three parts. First the results of the NRGD and its register will be discussed. There is then consideration of other national developments, particularly within the police and with other providers of forensic expertise. Finally there is a brief discussion of other promising international developments.
NRGD
Register populated
After four years, 85% of the total number of (forensic) experts in the Netherlands have been assessed by the NRGD, at least insofar as they come under the Wet deskundige in strafzaken (Experts in Criminal Cases Act; hereinafter called the Act). Please note that the external experts used by the police and the forensic staff employed by the police are not (yet) covered by the Act. The other 15% work in areas where standards still need to be formulated and assessments carried out. The NRGD has received 700
applications for registration. These have led to the registration of more than 500 experts in ten different (sub-)areas. This relates to the following areas of expertise and numbers of experts:
- DNA analysis and interpretation - source level (22); - Handwriting Examination (3);
- Forensic Psychiatry and Forensic Psychology (459) - Forensic Toxicology (7);
- Drugs - analysis and interpretation (3);
- Forensic Weapon and Ammunition Examination (6); and - Assessment regarding the Weapon and Ammunition Act (2).
20% of all applicants did not meet the requirements for forensic suitability. The small number of experts in some areas is also noteworthy. The section entitled ‘Other national developments’ discusses this in more detail.
Care in the assessment procedure
Justice must not only be done, it must also be seen to be done1
The NRGD strives for an assessment which is transparent and objective as possible. Its strategy is designed for this. Every application is assessed by an independent assessment advisory committee (AAC) made up of three members: two experts in the field and one experienced criminal lawyer. Should an applicant object to a particular assessor, they can ‘challenge’ them. An assessor can also recuse themselves. For ‘small’ areas of expertise, foreign assessors are therefore usually used. The AAC assesses the applicants on the basis of four to six case reports and other information, including the curriculum vitae. If the AAC has further questions for the applicant or doubts about their forensic expertise, there will always be an oral meeting with the applicant. Following the assessment, the AAC will draw up a recommendation for the
*
M.M.A. Smithuis MD, LLM has been director of the NRGD Office since it was founded in 2010 and is secretary to the College gerechtelijk deskundigen (Board of Court Experts). The author would like to thank J.A. Coster van Voorhout LLM, chairman of the College gerechtelijk deskundigen, for his useful comments.
1
Board of the NRGD. The independent College gerechtelijk deskundigen (Board of Court Experts - hereinafter called the Board), the autonomous governing body with ultimate responsibility for safeguarding and enhancing the quality of the registered experts, will in principle follow this recommendation. The applicant will always be provided with the underlying AAC recommendation alongside the Board’s decision. Should an applicant disagree with the Board’s decision, there is the possibility of objecting. The objection advice committee (OAC) is made up of three members: an administrative law judge and two 'new' professional members. 36 objections have been submitted over the past four years. In one case the OAC recommended that the decision should be reconsidered for professional reasons, which the Board accepted. Four appeals have been brought in the regular
administrative courts. In all four cases the Board’s decision to reject the objection was upheld on appeal.
Analysis of NRGD experiences
It does not just want to provide a register of qualified experts, but also wishes to encourage further improvement by publishing areas for improvement for the behavioural experts. The NRGD has therefore carried out two analyses of 100 AAC recommendations on behavioural experts. The NRGD noted in both analyses that although most of the experts are very engaged and motivated, frequently recurring shortcomings were noted in the reasoning in the case reports with regard to the diagnostic conclusions, the link between the disorder and the offence, the risk prediction and with regard to recommendations and treatment.2
In connection with the completion of the first strategy cycle, the NRGD has made a start on a broad strategic self analysis. In the first instance this will consist of a review of the first four years. Based on this and the possible desired developments in terms of forensics, recommendations will be made for the 'NRGD long-term vision 2014-2018', which will be published in due course. The experiences have also prompted a number of proposals for legal changes and changes to the content of the Besluit register deskundige in strafzaken (Expert in criminal cases decree) which are currently being considered by the ministry. In accordance standard policy following new laws, the ministry has asked the WODC (Research and
Documentation Centre) to carry out an external evaluation of the Wet deskundige in strafzaken (Expert in Criminal Cases Act) with a focus on the NRGD.
Requirements for re-registration
2014 will see the first re-registrations of forensic experts who registered for the statutory period of four years in 2010. Because of this the registration requirements for the first three areas listed above have been examined by means of a meeting of experts and public consultation. Two requirements for
re-registration which apply to all areas are worth noting (see www.nrgd.nl):
- the obligation to incorporate colleague review in the preparation of each case report,3
- The obligation to attend a minimum number of hours of continued professional development (CPD) relevant to forensics.
Consequences for lawyers and courts
Two areas for attention apply in those areas which have been ‘populated’: false assurance and the appointment of rejected report writers.
The register must not lead to false assurance - the unquestioning assumption that if someone is in the register they are qualified for every criminal case. On the other hand someone who is not included in the register need not automatically be unqualified, but there are then grounds for finding out why this expert is not registered.
The NRGD therefore provides the following advice for users of the register:
- Ask beforehand what expertise is required in the case in question. Two aspects are hereby
important. Firstly that the user of the reports is familiar with the specific delineation - as published by the NRGD - of the area in which the registered expert works. Hence the NRGD assessment for
2 The findings will shortly be discussed in a separate publication. 3
DNA expertise is currently confined to source level; the expertise is targeting to answer the question “From whom does the biological trace originate?” The registered DNA expert is currently not yet assessed at activity level: “How did the biological material come to be left at the scene of the crime?” Secondly, the NRGD has primarily focused during its initial period on assessing the most common skills within each area (see DNA source level). An expert who is not (yet) registered may be more suited to more specialist expertise. The NRGD will explore in 2014 what possibilities exist for accessing more specialist expertise.
- Remain critical of every case report. Although the NRGD has assessed and will re-assess all registered experts, mistakes can still be made. Should there be clear signs of this in the submitted report, this can be reported to the NRGD. This also applies to the registered experts who have failed to abide by the Code of Conduct (see www.nrgd.nl). The NRGD has the power to retract the expert’s registration. In order to further meet users’ needs, the NRGD is currently working on an improvement of the reporting procedure.
The NRGD has found that it still frequently happens - particularly with behavioural experts - that a rejected applicant for registration is nonetheless appointed to write case reports. The courts, the Public
Prosecutor’s Office and the Ministry of Security and Justice have been asked to pay particular attention to this. NRGD’s decisions should not be viewed as non-binding advice.
At the same time, the following is also to be considered. As the register is populated, it will be harder for the rejected ‘experts’ to be appointed as court experts, since only registered experts should, in principle, be appointed. The NRGD policy takes account of this. In order to still allow a fresh application, rejected ‘experts’ can draw up case reports under the supervision of an expert who is registered. Quality is thus safeguarded for the courts, and individual improvement remains possible for the supervised prospective expert. The user who gives an assignment must therefore ensure at the time of appointment that they are appointing an NRGD-registered expert. Should it nonetheless be necessary in exceptional cases for a rejected applicant to write the case report, explicit reasons must be given for this, so that the examining magistrate can justify the appointment in question. The public prosecutor does not have this possibility - they can only appoint a registered expert.
Future expansion of the NRGD
The NRGD will continue to populate the criminal register, including experts from forensic pathology. The NRGD is currently evaluating five other areas. Also interesting in this regard is the recommendation of the Health Council (Gezondheidsraad) prepared at the request of the Ministry of Education, Culture and Science entitled ‘Forensische geneeskunde ontleed’ ('Forensic medicine dissected’) (April 2013).4 The report recommends that forensic medicine (author - in the Netherlands forensic medicine practitioners establish usually the manner of death, the pathologist the cause of death) be given a full place by investing in training, quality assurance, evidence-based guidelines and professionalization and that the NRGD be involved in drawing up and assessing forensic medicine practitioners. Discussions will shortly also start between the ministry, the Council for the Judiciary (Raad voor de Rechtspraak) and the NRGD about possible expansion of the NRGD by registering experts who work in the fields of civil and administrative law.
Other national developments
Some 98% of all forensic investigations in the Netherlands are carried out by the police or by the Netherlands Forensic Institute (NFI). As a result this expertise is mainly practiced there. This situation is also reflected in the number of non-NFI experts in the register. In those areas where only one expert or no experts at all appear in the register there is room for improvement, particularly where the defence feels it is desirable to have a second opinion carried out.
4 Gezondheidsraad, 'Forensische geneeskunde ontleed; naar een volwaardige plaats voor een bijzondere discipline',
(‘Forensic medicine dissected: towards a full place for a remarkable discipline’), The Hague: 2013 (publication no. 2013/04)
Partly for this reason, Security and Justice Minister Opstelten asked the Winsemius Commission (hereinafter called: the commission) for advice on this in April 2013. The commission delivered a recommendation to the minister in September 2013.5
With regard to the broad possibilities for independent investigation and quality assurance the commission recommends:
1. “Growth model. The commission sees added value in specialist laboratories at police stations. Naturally these must safeguard high quality.
2. Accreditation. In anticipation of the European Framework Decision,6 it is desirable to apply specific quality standards and norms which are adopted internationally in order to guarantee the quality of forensic investigation as soon as possible to the activities which are carried out in the police’s
laboratories. The commission recommends that the Accreditation Council (Raad voor Accreditatie), the Netherlands Register of Court Experts (NRGD) and the National Expertise Broker (Landelijke
Deskundigheids Makelaar - LDM) at the Police Academy (Politieacademie) should be involved in the further elaboration (adoption, enforcement) in order to optimally safeguard the quality of the forensic investigation, including in the investigative phase.
3. Encourage exchange. Decentralisation of NFI staff can also offer a solution for the performance of specialist tasks which can be expected in the future as a result of the development of new
technologies. If proximity, direct involvement in the preliminary investigation or (cultural) learning effects makes it desirable, it could also be a good idea to ‘incorporate’ specialist private providers within the police’s laboratories.”
4. The commission also recommends that a survey be carried out once every three years with regard to 'Safeguarding the quality of preliminary investigations’, amongst other things.
The minister has adopted the recommendations on these points and endorses the importance of
management on the basis of - amongst other things - the aspect of 'safeguarding the quality of preliminary investigations'.7
Possibilities for independent investigation
In line with the advice of the Winsemius Commission, the minister does not plan any fundamental change to the current funding and will make € 2 million a year available over a period of three years for forensic case reporting at private institutes. A certain provision of services in combination with adequate and structural funding is, of course, required in order for private labs to build up sufficient expertise. Whether € 2 million will turn out to be enough to create sufficient options for independent investigation remains to be seen. Separate from this, the NRGD has taken the initiative to make a contribution to improving the availability of experts for independent investigation in the Netherlands. It invites foreign experts to register in the NRGD register, so that the register will include several experts for independent investigation for every area.
It is also unclear how Framework Decision 2009/905/JHA will be interpreted by the police, particularly in terms of what activities do and do not fall within the scope of the framework decision and whether other activities, such as blood pattern analysis, will also be safeguarded in due course. It is worth noting a recent report by the House of Commons Technology Committee about the state of forensic investigation in England.8 The report states:
5 Toekomstige Inrichting Forensische Onderzoek (Future Structure of Forensic Investigation), recommendation to the
Minister of Security and Justice, 11 September 2013.
6
Council Framework Decision 2009/905/JHA of 30 November 2009 on Accreditation of forensic service providers carrying out laboratory activities. Article 3 definitions: 'laboratory activity' means any measure taken in a laboratory when locating and recovering traces on items, as well as developing, analysing and Interpreting forensic evidence, with a view to providing expert opinions or exchanging forensic evidence.
7 Letter to the Speaker of the House of Representatives of the States General, dated 12 November 2013, subject
‘Future structure of forensic investigation’
“We have strongly recommended that police laboratories that conduct forensic science should achieve accreditation (….)”
In my view the Winsemius Commission adopts the same position in its recommendation (see recommendation 1 and 2).
International developments
Interesting developments are also taking place at international level. Alongside the European Framework Decision for DNA and dactyloscopy referred to above, mentioned should be the development of specific European forensic CEN standards for all phases of the investigation such as the ‘scene of crime’, the further ‘ laboratory’ investigation and the method of interpretation.9 The standards are intended to lead to uniform and minimum standards throughout Europe. The ‘framework standards’ contained within them define a general framework and indicate the conditions which must be met in terms of quality assurance. With regard to competencies it involves drawing up the competency targets for each expertise and a training plan, together with the method of supervision and an adequate final assessment of the forensic expert/investigator before they can work independently. Requirements are also stipulated for refresher and supplementary training. Since it involves a framework standard, these competencies then need to be specified in more detail for each expertise. Hence a DNA expert must understand the specific population statistics which they use regularly, and a forensic psychiatrist must have specific knowledge for making a correct risk prediction. The standards drawn up by the NRGD could be ‘meshed’ with these successfully. The European Council has asked the Commission and the member states to create a European forensic science area with minimum quality standards.10
“In order to foster cooperation between police and judicial authorities across the European Union with a view to creating a European Forensic Science Area by 2020, Member States and the Commission will work together to make progress In the following areas, aiming to ensure the even-handed, consistent and efficient administration of justice and the security of citizens:
- accreditation of forensic science institutes and laboratories;
- respect for minimum competence criteria for forensic science personnel (...).”
Conclusion
Unlike the NRGD, the British Regulator - comparable to the NRGD - does not have statutory powers, but does advise the police and users. The British parliamentary committee states with regard to the powers of the Regulator that:
“The Forensic Science Regulator (FSR) has had a key role in ensuring compliance with quality standards. We have reiterated our 2011 call for the Government to bring forward proposals for statutory powers for the FSR.”
Striving for quality is widely supported, but actual implementation requires a combination of 'sticks and carrots' (not just in the UK). The British government has responded to the parliamentary request and launched a consultation in the autumn of 2013 to establish to what extent the British Regulator should be given statutory powers. By introducing the Wet deskundige in strafzaken (Experts in Criminal Cases Act) the Netherlands has put this lesson into practice. By setting standards and assessing 700 'experts', the NRGD has helped to improve clarity as to who possesses basic competences. It is important that adequate quality assurance systems continues to develop, and that the NRGD also has sufficient powers to safeguard quality for all forensic science activities, regardless of who carries them out, both within the criminal justice system and beyond.
9
CEN BT N 8831, ‘Creation of a new Project Committee on 'Forensic science processes`, CEN/TC4I9
10 Council of the European Union, Council conclusions on the vision for European Forensic Science 2020 including the
creation of a European Forensic Science Area and the development or forensic science infrastructure in Europe. 3135th Justice and Home Affairs Council meeting. Brussels, 13 and 14 December 2011.