New guidance has been released by the Forensic Science Regulator which sets out the text that you should use in your declarations for work undertaken in England and Wales for the English and Welsh Criminal Courts.
The Criminal Procedure Rules 2020 [3] Part 19 requires a declaration of truth to be made in all expert reports. Criminal Practice Directions (CPD) [3] Section 7.2 para 13 makes a requirement for a declaration of acting in accordance with the Code of Practice or conduct for experts of their discipline. The declaration in the Code satisfies the requirement of CPD Section 7.2 para 13. In addition, the Code makes a requirement for factual/technical statements (non-expert) for making a declaration.
This guidance outlines a consistent approach to:
- Making declarations of compliance or non-compliance to version 2 of the statutory Forensic Science Regulator’s (the Regulator) Code of Practice effective from 2nd October 2025.
- Making declarations of compliance or non-compliance during any transition from version 1 of the Code of Practice [2] and activities spanning the two Codes.
- Declarations text for specific scenarios that may be encountered by practitioners.
- A blank mitigation table for where declarations of non-compliance have been made.
It also highlights the cases where a declaration is not required and also details variations that need to be made depending on whether the work was completed under version 1 of the code (before the 1st October 2025) or version 2 (after 1st October 2025).
Any joint statements created are not subject to these declarations.
The EWI recommends any expert witness working in the criminal courts read this guidance to make sure they understand the approach they need to take with their declaration.
We have raised concerns that the guidance introduces a level of complexity meaning that for those specifically undertaking Forensic Science regulated activities, they will need to construct very specific declarations. There is a risk that this will lead to greater levels of non-compliance in reports as there is no simple approach to declaration 13 which can be referenced.
Those providing expert evidence in the criminal courts who do not undertake Forensic Science Activities should use this text at declaration 13:
I confirm that I have complied with the disclosure obligations listed in paragraph 7.1.4 of the Criminal Practice Directions. (required by Criminal Practice Direction 7.2.1)
I confirm that I have complied with the code of practice or conduct for experts of my discipline, namely [identify the code], in all respects save as identified in [schedule][annexe][x] to this report. That [schedule][annexe] identifies any respect in which I have not complied with that code, explains why I have not done so, and either: (a) explains why I do not think that that non-compliance creates any material risk to the reliability of my opinion, or (b) gives details of the action taken to mitigate any such risk. (required by Criminal Practice Direction section 7.2.1)
I confirm that, to the best of my knowledge and belief, I have acted in accordance with requirements of part A of the Code of Practice [insert version] published by the Forensic Science Regulator as it pertains to specialists from outside the forensic science profession. Annex [x] details the steps taken to comply with the specific requirements set for experts from outside the forensic science profession. (required by Forensic Science Regulator Guidance section 8.4.1)
You will then need to provide an Annex setting out how you meet the requirements listed at section 9.2 of the code.
We are seeking guidance from the Criminal Procedure Rule Committee about the overlap between the last two paragraphs.
Those providing expert evidence in the criminal courts who undertake Forensic Science Activities should use this text at declaration 13:
I confirm that I have complied with the disclosure obligations listed in paragraph 7.1.4 of the Criminal Practice Directions. (required by Criminal Practice Direction 7.2.1)
Then, one of the following three statements as required by Forensic Science Regulator Guidance section 7.1.2:
A: I confirm that, to the best of my knowledge and belief, I have complied with the Code of Practice [insert version] published by the statutory Forensic Science Regulator;
OR
B. I confirm that, to the best of my knowledge and belief, I have complied with the Code of Practice [insert version] published by the statutory Forensic Science Regulator for infrequently used methods or new methods. As this method is not within the schedule of accreditation, annex [x] details the steps taken to comply with the specific requirements to control risk;
OR
C. I have not complied with the Code of Practice [insert version] published by the statutory Forensic Science Regulator. The details of this noncompliance are included to the best of my knowledge and belief in annex [x], with details of the steps taken to mitigate the risks associated with non-compliance.
You will need to check the FSR guidance for the specific guidance on the declaration to use and any variations which may need to be made.
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