45 years and counting – independent forensic review across Ireland

Back in 1980, Dr Keith Borer made a name for himself reviewing forensic evidence in some high-profile cases in the north of the island, and a business was born. An industrial chemist by trade, he was a regular visitor to the Northern Ireland Forensic Science Laboratory (now Forensic Science Northern Ireland), checking their work and challenging any issues.

Keith always said to “hit with a straight bat” and the overarching principle of honest but rigorous independent review has stood the test of time. The company has grown and grown and, nowadays, the people behind Keith Borer Consultants are all experts in their subject, working in a heavily regulated industry and instructed by lawyers across the UK, Ireland and further afield.

Why instruct an independent forensic expert?

An expert witness is someone considered, by the court, to have more knowledge about a particular subject than the judge, lawyers, or lay jury. Their subject might be forensic science, medicine, engineering, or health & safety and, like lawyers, they are bound not to stray from their lane. Regardless of who instructs them, an expert witness must remain independent in their assessment of the evidence and report their findings objectively and accurately. Their role is key to the functioning of a fair and informed judicial process and is outlined in Order 39 of the Rules of the Superior Courts (Ireland).

An independent forensic expert can be instructed to:

• Interpret scientific findings in the context of the case: if new evidence comes to light or witness accounts change, the expert can consider whether the probative value of scientific findings is affected.
•  Identify new avenues for investigation: the absence of evidence may be significant, or additional testing could be required to test different propositions.
• Check the veracity of the reported findings: is the continuity of exhibits in order, have all the ‘control’ tests been carried out to demonstrate analytical equipment is functioning properly, or has there been any opportunity for bias to creep in? Cognitive bias is a topic fingerprint specialist, Simon Bunter, wrote about in The Writ, the publication of the Law Society of Northern Ireland.

What types of cases can an independent forensic expert assist with?

Emerging technologies

The squeeze on policing budgets means funds for forensic examinations are directed towards evidence types likely to yield good evidence in a cost-effective manner. As most aspects of our daily lives have moved online, digital forensics (which includes mobile phones, computers, cell site analysis, video imagery and tachographs) is an area which has grown exponentially in recent years. Digital evidence appears in a wide variety of cases, from minor offences against people and property, to road traffic collisions, sexual offences, sudden deaths, human trafficking, and drugs importation.

Over the years, there have been a string of developments heralded as ‘the death of digital forensics’, from new security features such as encryption to operating systems challenging our understanding of certain artefacts. The latest challenge to arise is artificial intelligence (AI).

Whilst AI is beginning to be integrated into digital forensic tools, bringing its own challenges and risks, it is also being used in criminality – the most prevalent usage being AI-generated imagery or ‘deepfakes’. These can be manipulated for many purposes, but unfortunately one of the fastest rising is the creation of pornography. The Harassment, Harmful Communications and Related Offences Act 2020 ensures intimate images include ‘any digital representation’, making it an offence to distribute (but not make) an AI generated sexual image, but this does not apply if the subject of the image is not a real person. The Child Trafficking and Pornography Act 1998 relating to child pornography specifically includes references to “generated or modified by computer-graphics”, regardless of whether the child is real or not. These two Acts are, therefore, a good start in the fight against malicious AI generated images, and no doubt there will be further legislative changes to address any gaps that may arise as the technology develops.

Traditional forensics

DNA profiling and fingerprinting remain important ways to link evidence to a person and are commonly used. Techniques have developed over the years, enabling scientists to test smaller amounts of biological material than ever before. More traditional forensic disciplines such as trace evidence transfer (fibres and glass fragments) are seen as labour-intensive and appear in casework less frequently compared to 10 or 15 years ago.

DNA case study

Cold case reviews often involve re-examining evidence dating back several decades. As technology and scientific methods improved, it was not unusual for Forensic Science Ireland to outsource DNA analysis to Northern Ireland or mainland Britain, where different tests were available.

In one such murder case, dating back to the early 1980s, Forensic Science Ireland initially examined clothing and samples from the deceased woman. Semen was identified on an intimate swab from the victim, but no tests existed at the time to identify who it came from. It was stored safely until 2008, when advances in DNA profiling of small quantities of cellular material were developed. A microscope slide containing the semen sample was examined at a laboratory in England and a DNA profile was generated. It took a further 14 years for Gardai to identify a suspect and seize a reference sample for DNA profiling, analysis that was carried out at yet another UK laboratory, using the most modern DNA analysis techniques.

We were able to provide reports reviewing the full breadth of the evidence generated at different times at different laboratories, checking that results could be traced back to the exhibits collected decades ago, examining exhibits that still existed, and provided a complete interpretation of the significance of the reported findings, including strengths and weaknesses.

Drugs and toxicology

Offences involving drugs range from cannabis cultivation to possession and supply of cocaine. Where there is a reported street value of over €13k, a defendant would face a custodial sentence. In cannabis cultivation cases, we have been instructed to check issues such as potential yield, cultivation size and plant health, and in cocaine cases, the importance of drug purity can be an issue.

Drugs case study 1

Many bags of harvested cannabis were found in a van and reported as ‘x kilograms, identified as cannabis’. On closer inspection, the buds, leaves and stalks were all still connected, so the predominant weight could be attributed to the stalks, effectively a waste product. A valuation had been calculated on the overall weight of the material seized, not the weight of the saleable drugs – a huge overestimation of street value.

Drugs case study 2

Irish police do not seize whole cannabis plants as part of their investigation, only one leaf from each plant. Other jurisdictions take a representative sample of whole plants from each room or growing area to allow a better assessment of plant health and likely yield. In one set up, 50 plants were discovered, so 50 leaves were submitted for analysis. How could an accurate yield or street valuation be calculated? If all 50 plants had room to grow and were in good health, the potential yield could be 40g per plant and with a street value of €20/gram (totalling €40k). But what if the plants were tiny cuttings, not all of which would thrive, or there was only sufficient space to grow 16 plants to maturity, the street value would be significantly less (and below the €13k threshold).

Drugs case study 3

A bag of suspected cocaine was seized and analysed. The powder weighted 980g and contained cocaine. But how much cocaine? No one demonstrated purity and we were instructed to carry out further testing. Our analysis showed that the powder was effectively a cutting agent (benzocaine) with a minute (but detectable) trace of cocaine. The valuation changed from 980g cocaine at €70/gram (almost €70k) to 980g of benzocaine at €500/kg (€490).

The future of independent forensic review

When Forensic Science Ireland published its Annual Report for 2023, it highlighted a 5% increase in forensic submissions, the issue of over 21,700 forensic reports, the introduction of automated systems in fingerprints and DNA, and a strong emphasis on ISO17025 Quality Standards for various forensic services. Clearly, the demand for forensic evidence in Ireland continues to grow and, with it, the demand for robust, independent checks.

Keith Borer Consultants will continue to offer independent forensic review to lawyers across Ireland in years to come. Unbiased analysis of scientific results can identify errors or inconsistencies and highlight potential biases. Knowing that the forensic evidence has been rigorously reviewed adds credibility, allowing you to develop an effective case strategy, and giving your client increased confidence in their legal team.

Keith Borer Consultants employs over 35 scientists and engineers, covering the majority of forensic disciplines. A dedicated team of logistics administrators ensures your case is managed effectively and progressed efficiently, so that our reports meet your deadlines. For more information on the services we offer, please visit www.keithborer.co.uk.