On popular television shows, forensic scientists and investigators solve major crimes within the show’s hour-long format, presenting forensic testing as quick producers of irrefutable court evidence. But real-life forensic testing is not such a plain sailing process.

When it comes to criminal cases in Malta, forensic testing, being a specialised task, is carried out by court-appointed experts. To competently carry out their tasks – be it DNA, fingerprint, or drugs of abuse analysis – the court-appointed expert would need a forensic testing laboratory equipped to produce accurate and reliable findings.

Many forensic testing laboratories worldwide are being granted the ISO/EIC 17025 accreditation, with many countries in fact requiring that forensic testing only be conducted in such accredited laboratories.

In Malta, the National Accreditation Board (NAB) is the sole national accreditation body. It assesses organisations that provide forensic testing, inspection and calibration services to ensure they meet international standards. Essentially, ISO/IEC 17025 accreditation is the industry standard which certifies that a lab uses valid sampling and testing methods to produce reliable and accurate test results.

The judgment delivered by the Criminal Court on the 10th of November 2022 in the names ‘The Republic of Malta v. Etienne Farrugia’, centred on whether forensic testing labs used by court experts to examine illicit substances require accreditation.

In one of his preliminary pleas, the accused, through his legal counsel, argued that the report exhibited by the court expert appointed to conduct drug analysis ought to be declared inadmissible since the laboratory used to conduct the relative scientific forensic examinations was not an accredited drug testing lab according to ISO/IEC 17025 and consequently failed to comply with EU law and standards.

The EU Council Framework Decision 2009/905/JHA on the accreditation of forensic service providers carrying out laboratory activities, which was fully transposed to Maltese law by means of Subsidiary Legislation 460.31 on the 29th of March 2016, requires member states to have accredited forensic service providers for laboratory activity.

The accused contended that the lab used by the court-appointed expert to conduct drug analysis in this case – one found at University of Malta premises – was not accredited by the NAB as being in conformity with the EN ISO/IEC 17025 standard. He held that there is only one accredited laboratory for the testing of drug samples in Malta, and it was not the one used in this case.

According to the accused, the analysis in an unaccredited laboratory meant there was no certainty about how the drug examination should be done, how the instruments are calibrated, and the environment in which the analysis was carried out and this led to very serious doubts about the drug test and the report presented in Court.

But there’s a catch. In its judgment, the Criminal Court, referred to previously decided judgments and pointed out that as it stands, the Council Framework Decision 2009/905/JHA, as transposed into Maltese law, does not apply to drugs analysis. It is limited in scope and necessitates accreditation only for laboratory activities resulting in DNA profile and dactyloscopic data – both of which have nothing to do with drug analysis.

Court's deiberations

While it is true that the definition of certain terms under the mentioned EU Framework Decision, such as the definition of “forensic service provider” and “laboratory activity”, are overarching and afforded a wide and generic interpretation, the requirement of laboratory accreditation – for some odd reason – is exclusive to laboratory activities resulting in DNA-profile and dactyloscopic data, and not also drug sampling.

For this reason alone, the Criminal Court could have rejected the preliminary plea brought forward by the accused, as other courts had done in previous occasions. However, it delved a bit deeper.

It held that in any case, even if the applicable EU law necessitated accreditation for labs used for drugs analysis too, the work conducted by the court expert ought not to be automatically declared null and inadmissible.

While the court conceded that time is ripe for the law to require higher standards, including by making accreditation a requisite for labs used for drug analysis too, it also maintained that the absence of accreditation alone did not automatically imply that the expert’s examination was not up to standard.

The court referred to the expert’s testimony as registered in the acts of proceedings, who had remarked that lack of accreditation does not exempt him from adhering to a number of international standards, including calibration of the apparatus used, among other verification methods.

Moreover, the Criminal Court remarked that the principle under our law is that any piece of evidence that makes more or less probable a fact in issue, is admissible unless there exists an express exclusionary rule of evidence that renders the piece of evidence inadmissible.

The court, drawing inspiration from past judgments, stated that the admissibility of evidence is not affected by the means used to obtain it. The use of illegal or unfair techniques (which in this case did not result) to obtain evidence does not generally make otherwise relevant and admissible evidence inadmissible.

The court moreover elicited the fact that the defence at no point raised doubts as to the qualifications and competency of the expert appointed and at no point contested the resultant findings of his report throughout the compilation of evidence stage – and this in spite of the fact that Subsidiary Legislation 460.31 was already in force at the time that the expert exhibited his report.

For this reason, the Criminal Court proceeded to turn down this preliminary plea raised by the accused.

Dr Jacob Magri is an  Associate at Azzopardi, Borg & Associates.