House of Commons - Science and Technology

Select Committee on Science and Technology Seventh Report

3 Changing Status of the FSS

17. The FSS became an Executive Agency of the Home Office in 1991. Prior to this, there was no charging mechanism for forensic services and services were, in effect, free at the point of use.[22] In 1996 the FSS merged with the Metropolitan Police Forensic Science Laboratory and then in 1999 acquired Trading Fund status. These changes opened up the possibility of a market in forensic science services and, as noted by ACPO, "introduced financial discipline into forensic science provision and procurement" such that "Costs and value added by forensic support became clearer to police forces".[23] During the 1990s the companies LGC and later Forensic Alliance started to penetrate the market. However, the FSS remained ACPO's "preferred supplier" until 2002, with many forces opting to extend "what was effectively a 'gentleman's agreement' with the FSS to provide services" despite the emergence of competitors and, until recently, formal contractual arrangements were the exception.[24]

18. The Local Government Act 1999 required Police Authorities to obtain Best Value in local policing services. This obliged Authorities to challenge, consult, compare and compete when undertaking reviews of services. Clearly, this was not compatible with the historical approach of police forces to procurement of forensic services. This change in policy impacted directly on the FSS's market share. In January 2003, following the new procurement requirements, a review of the Metropolitan Police Service procurement practices was carried out on behalf of the Mayor of London, the Metropolitan Police Authority and the Metropolitan Police Commissioner.[25] The review criticised the absence of a clear and accountable business relationship between the Metropolitan Police Service and the FSS and ultimately led to the Metropolitan Police purchasing services from all three major suppliers, rather than just the FSS. Many other forces have also adopted a mixed approach, purchasing a proportion of their services from the FSS and the remainder from the private sector suppliers, while Thames Valley Police now works exclusively with Forensic Alliance (whose main laboratory is sited within the Thames Valley force's area).

MCFARLAND REVIEW

19. Against this background of the developing market in forensic science and the changing relationship between the police and the FSS, the McFarland Review of the FSS was announced in July 2002 by the then Home Office Minister of State for Policing, John Denham MP. Robert McFarland reported his findings to the Home Secretary in July 2003.[26] The Review addressed three principal issues:

The role that the FSS plays in the criminal justice system and, in particular, its contribution to meeting Home Office objectives;
The need to deliver high quality, timely and cost-effective forensic science services that meet the needs of efficient police investigation and the criminal justice system; and
The future organisational status of the FSS.

20. The Review stated that overall the FSS had been successful, was "on the whole well regarded by its stakeholders" and had "consistently met most of the operational and financial targets set by the Home Office".[27] The Review stated that the FSS should "take particular credit for:

Its response to the significant increases in demand for forensic services over the last decade;
The development of the forensic applications of DNA, and the setting up and managing, with the Association of Chief Police Officers (ACPO), of the NDNAD; and
Pioneering new ways of working with and in support of the police".[28]

21. The Review concluded, however, that "the emergence of a fully open and competitive market has been constrained by what the private sector saw as the entrenched monopoly of the FSS", whilst "the FSS feels that its effectiveness is hampered by the way the Trading Fund framework operates".[29] The Review attributed the increasing competition in provision of forensic science services predominantly to "the search by police authorities for 'best value'" and noted that this had also "undermined the FSS position as 'preferred supplier'".[30]

22. The Review considered, and ruled out, a number of organisational options for the FSS: abolition, strategic contracting out, market testing, and merger and rationalisation. The two remaining options, i.e. for the FSS to continue as a Trading Fund or to become a private sector classified company with the Government retaining a minority shareholding (a PPP), were then given further consideration. The Review noted that the FSS was "unique as a Trading Fund in having competition across the whole of its core business" and asserted that the "constraints under which the FSS operates as a Trading Fund place it at a significant disadvantage, leading to a high risk that the FSS could progressively decline".[31] The Review raised the possibility that "if the Government were prepared both to invest additional long-term capital, and to renegotiate aspects of the Framework Document to give the FSS further operating freedoms while remaining within the terms of the 1973 Government Trading Fund Act", the FSS, "at least in the short to medium term, should be able to continue to operate effectively".[32] The Review estimated that a one-off capital investment of £20 million to £30 million would be necessary to sustain Forensic Science Service business at current levels.[33]

23. Nevertheless, the Review ultimately concluded that "the balance of the argument is strongly in favour of the PPP option", asserting that "By becoming private sector classified the FSS would acquire the private sector flexibilities it desires, and the Government would be relieved of responsibility for a commercial operation, as well as partly realising its investment".[34] The Review stated that the "risks from following the PPP route are not considered high, certainly when weighed against the potential benefits" and said that there was "every reason to believe that the FSS, its management and its staff would prosper" in these circumstances.[35]

24. The Review therefore recommended that the FSS be transformed into a Government owned company (GovCo) as a precursor to evolution into a private sector classified PPP over 12-18 months. The GovCo phase would enable the agreement of a "contract between the embryonic PPP and the Government to ensure continuity of services, quality standards, and prices to public sector customers of forensic science services", as well as the identification of an appropriate private sector partner.[36]

ATTITUDES TOWARDS PPP

The need for change

25. Much of the evidence received in this inquiry, whilst praising the work of the FSS and its staff, has suggested that the FSS does need to make changes to the way it operates, in particular by increasing its customer focus and commercial competitiveness. The Biosciences Federation told us, for example, that the "FSS is currently not client or business orientated and turn-around times can be slow".[37] This echoed the Committee of Public Accounts' 2003 Report, Improving service delivery: the Forensic Science Service, which called the timeliness performance of the FSS "disappointing".[38] ACPO agreed that the FSS had to "become more customer focussed" and told us that to date this transition had been "slow, resulting in work being lost".[39] The Home Office viewed the problems faced by the FSS as even more serious:

"The Government acknowledges the scale of the challenge. The FSS needs to focus on meeting the demands posed by its core business in terms of enhanced service delivery and customer relations; keep pace with the proving and deployment of new scientific techniques; improve efficiency; re-balance charging structures and develop the commercial skills to fully utilise its key asset: a highly qualified workforce. Indeed, its present systemic weaknesses are such that it must begin making major improvements as soon as possible".[40]

The Home Office and the FSS were both of the view that the constraints imposed on the FSS by Trading Fund Status inhibited the ability of the FSS to meet these challenges. In particular, they asserted that there was a pressing need for contractual agreements with customers to be on a firm legal basis, and for the FSS to be able to access funding and carry out procurement exercises unencumbered by public sector restrictions.[41]

26. Prospect also acknowledged that the FSS was disadvantaged "by general Government constraints regarding the public sector borrowing requirement" and that there was "a need for investment in the Forensic Science Service".[42] However, along with other witnesses Prospect and PCS questioned whether development of the FSS as a PPP was the only solution to these problems.[43] The Royal Society of Edinburgh told us that "it should have been possible to introduce greater commercial awareness into the FSS within the existing structure and without conversion to PPP", whilst Strathclyde University emphasised the need to "focus on behavioral (as opposed to structural) change".[44]^,[45]

Responses to McFarland

27. The then Home Secretary's acceptance of McFarland's recommendations in July 2003 provoked a range of responses, including consternation on the part of many who feared that a PPP would have adverse consequences for the criminal justice system in the UK. Over the course of the ensuing 18 months, MPs repeatedly raised the issue in Parliament, challenging the wisdom of this course of action and urging the Government to resile from its decision to develop the FSS as a PPP.[46] Some of the most vehement opposition to the decision was presented by the trade unions representing the majority of FSS staff, Prospect and PCS, which launched a campaign against developing the FSS as a PPP under the strap-line, "Don't Profit From Crime".[47] A recent staff survey by the FSS indicated that 75% of the staff who responded had an unfavourable view of PPP.[48] The key concerns cited by those who have opposed the idea of developing the FSS as a PPP are summarised below in paragraphs 29 to 37 (see paragraph 126 for discussion of the likely consequences of PPP for expenditure on R&D).

28. By contrast, others saw the move towards PPP as a logical progression: a competitive market for forensic services already exists and a PPP of the FSS should help to achieve a "levelling of the playing field between providers".[49] Forensic Alliance pointed out that emergence of competition in provision of forensic services had already benefited the criminal justice system by, for example, "improving the timeliness of forensic services", "expanding the national pool of forensic scientists" and "the breadth and depth of forensic science expertise", and "stimulating innovative approaches and methodologies".[50] In addition, ACPO told us that it would be "desirable" for the FSS to have "access to the same market freedoms that other competitors enjoy, if it is to be able to modernise, re-capitalise, and increase its speed of decision-making".[51]

Principle that FSS should remain in public sector

29. Some of the hostility towards PPP stems from a fundamental belief that the nature of the work carried out by the FSS and its role in the criminal justice system mean that it should always be a public sector organisation. Helen Kenny, the Prospect FSS Branch Secretary, told us: "The objection that most staff have […] is the objection to carrying out the work for profit. At the moment we carry it out as a public service".[52] This view was reinforced by Jeremy Gautrey from PCS: "The majority of our members object to the FSS being privatised because they do their work as public servants and they want to continue as public servants".[53] Ian Parkinson, an employee of the FSS, further told us that PPP could undermine public confidence in the services provided by the FSS: "The FSS scientist, maintains the public sector ethos and as a public servant is clearly (and is understood in court) to be balanced and impartial".[54] Conversely, Mr Parkinson believed that development of the FSS as a PPP would introduce "a risk to the perception of integrity and impartiality in court" since "privately employed scientists are perceived as more likely to represent a vested interest".[55] The Home Office counter argument was that the current private sector involvement in forensic science means that the courts have already heard evidence from private sector scientists, although it could not provide us with any empirical data on public attitudes towards this change.[56]

30. A further source of concern over the PPP of the FSS derives from the fact that the UK appears to be the only country that has proposed PPP as a desirable model for its forensic science service. Strathclyde University, for example, observed that "Although there are a number of countries with elements of private forensic science provision, such as the USA, no other country is contemplating the complete privatization of forensic science provision to its criminal justice system".[57]

31. There is also unease over the loss of opportunities for Parliamentary oversight of the FSS under a scenario where the FSS becomes a PPP. PCS and Prospect commented that "As a PPP, the Government would be a minority shareholder and will not have a controlling influence. Neither will other stakeholders have any say in how the Company is run, unless they themselves become stakeholders".[58]

Implications for cost and range of services

32. Various witnesses were of the view that, as a PPP, the commercial pressures on the FSS may cause it to restrict the range of the services that it offered. ACPO pointed out that competition might cause providers to "reduce the availability of some of the more specialised and costly services, which are rarely used but vital when needed, or might decline to provide services in remote parts of the country".[59] There is also a perception that developing the FSS as a PPP could lead to increased charges for both services and training. PCS and Prospect told us: "On low profit items (e.g. firearms) where there is only limited competition, prices to the customer (primarily police forces) will go up considerably […] police forces may have no option but to reduce the amount of evidence sent for analysis".[60] They also noted that "Free advice given over the phone prior to the submission of evidence would have to be charged for".[61]

33. Prospect and PCS further commented that "In the financial year 2003-04 the FSS delivered over 450 courses to over 50 police forces/other bodies, training officers of all ranks" and suggested that, if the FSS became a PPP, the "External training given to customers, which is currently cost-neutral, would have a profit element introduced".[62] The latter view was endorsed by the Royal Society of Edinburgh, which told us: "It is important that commercial pressures at the FSS and the sensitive supplier-customer relationship do not have a negative effect on the role of the FSS in educating those concerned with the assurance of justice".[63] We return to this point in paragraph 114.

Possibility of failure

34. The FSS occupies a unique position in the forensic services market. The FSS told us that its competitors "at present lack the infrastructure and critical mass to offer the total 24 hour, 365 day service which is singularly the hallmark of the FSS".[64] ACPO, despite being broadly supportive of the plan to develop the FSS as a PPP, commented that a "destabilised and rapidly failing FSS, currently widely regarded as the leading forensic provider in the world, and with up to 90% of market share at present, is potentially a disaster, which we would prefer not to contemplate".[65] In addition, Prospect and PCS were of the view that the Government could not afford to let the FSS fail: "The creation of a PPP will not transfer risk to the private sector, because if the Company were to fail financially, the Government would be forced to step in for the benefit of the Criminal Justice System".[66]

35. Disquiet over the prospect of PPP has been intensified by the fact that neither the Government as a whole nor the Home Office has a good track record in managing large PPP projects. High-profile problems have arisen, for instance, in the PPP projects for the national air traffic control system and the new IT systems for the Child Support Agency and the Magistrates' Courts (Libra project).[67]^,[68]^,[69] Within the Home Office, there have been problems with the capacity of systems to carry out checks in the Criminal Records Bureau.[70] While not all of these projects are directly comparable to a public-private partnership for the FSS, the Government's poor track record at managing PPP projects does not inspire confidence in its ability to make a success of developing the FSS as a PPP.

Fragmentation

36. It has been noted above that the interpretation of forensic evidence is highly context sensitive. Forensic Alliance told us that "Currently the most likely reason for forensic science to prove unreliable is when findings are interpreted out of context, usually when the scientist offering expert opinion is not in full possession of all relevant facts".[71] Forensic Alliance further noted that PPP could make this position "more complex if, as the forensic science market expands, scientific input is fragmented between suppliers".[72] Ian W. Parkinson, an employee of the FSS, also asserted that development of the FSS as a PPP would work "against disclosure of material in cases between suppliers".[73] Prospect and PCS shared this view: "Information is not likely to be shared between Companies, and the consequence would be a loss of communication and a reduction in shared intelligence. Such liaison is crucial, as was highlighted in the M25 serial rapist case, when more than 100 scientists and support staff from five of the FSS's laboratories were involved in carrying out work for six police forces".[74] Furthermore, Prospect and PCS told us: "Competition developing at different rates in different fields means that a future Company may decide to sell one or more areas of its work, thereby splitting up the organisation and losing the valuable liaison that currently takes place within and between laboratories".[75]

Security implications

37. An additional reason cited for scepticism over PPP related to security considerations. The trade unions Prospect and PCS remarked that "Currently the FSS security clears all staff to a minimum of Counter Terrorist Level as work is often highly sensitive including organised crime, terrorism and internal police investigations", but "as a result of the PPP, the UK could be faced with the prospect of having non-governmental and non-security cleared staff processing some of the most sensitive criminal and intelligence information in the UK".[76] Jeremy Gautrey from PCS also commented in oral evidence that, although "Currently, you could argue that there are people working in the private sector or forensic market that are not security cleared […] a lot of people who work in the private sector companies have already been security cleared because they worked for the Forensic Science Service previously".[77]

GovCo

38. On 11 January 2005 the Home Office issued a further statement on the future status of the FSS.[78] The statement confirmed that the FSS would be transformed into a GovCo but, in an apparent departure from previous policy, made no explicit mention of PPP. Furthermore, the statement said that the Home Office would "use the interim period to fully test the merits of the FSS as a Government owned Company in its own right".[79] Somewhat confusingly, the statement also said that the GovCo would be a "transitional structure".[80] The public response reflected this confusion, with some people welcoming the change in the Government's stance and others saying that they could see no evidence of a change in policy.

39. We sought to clarify whether progression to PPP was still inevitable or whether the FSS might stay as a GovCo indefinitely. In response to our question, the Home Office said: "The Government intends that FSS GovCo should be a success. It could remain as such in the longer term, but it is likely to need to be a transitional structure, in order to [have] access to private sector capital and skills through partnering in order to meet its full potential".[81] In oral evidence the Parliamentary Under-Secretary of State for Reducing Organised and International Crime, Police Science and Technology, Anti-Drugs Co-ordination and International and European Issues, Caroline Flint MP, confirmed that she was sceptical about the ability of an FSS GovCo to survive in the long term: "If the GovCo can deliver, then that is fine, but I still have doubts about particularly the injection of sufficient funding for it to develop and for it to innovate in the future".[82] This was in accordance with the earlier oral evidence of Steven Rimmer, a Home Office official, who, when asked whether the assumption was that a GovCo would not provide everything that was needed for the FSS, had replied in the affirmative.[83]

40. In view of the mixed messages contained within the Home Office statement of 11 January, we sought to elucidate whether or not it signified a change in Government policy on PPP. We were told by Tim Wilson, Head of the Home Office Science Policy Unit, that "There is no change of policy, but there is a distinctive change of pace".[84] Mr Wilson went on to explain:

"Normally when the Government cedes the majority control of an entity, the government-owned company corporatised stage takes place a minute before midnight and a minute after midnight, it sells 51 per cent or so of its stake. What we are trying to do is expand that window of opportunity to work with the FSS to see how it can transform itself, running under a corporate structure, not an accounting officer's structure, with people with the right kind of commercial discipline and experience in order to see what can be achieved from the revenue that the organisation itself can earn as it develops to face a competitive market".[85]

The expansion of the window of opportunity referred to by Mr Wilson is dramatic to say the least: instead of confining the GovCo stage to two minutes, the Home Office has promised to allow two years for testing the viability of GovCo status.

41. We believe that a decision to expand the duration of the GovCo phase from a matter of minutes to up to two years is a sufficiently drastic change of pace to constitute a change of policy. Furthermore, the statement of January 11 2005 which vowed to test the GovCo model for the PPP in its own right is not consistent with the original acceptance of the McFarland Review in July 2003, which invoked GovCo only as a precursor to PPP. The Government's presentation of the decision has been misleading and confusing. At a time when the FSS and its staff have been seeking reassurance and clarity over the future of the organisation, the mixed messages being sent out by the Government are regrettable and damaging.

42. The Home Office had further stated in its announcement of 11 January that the timing of the next stage, i.e. following development of the FSS as a GovCo, would "depend upon reaching agreement with key stakeholders that conditions are favourable and the move would be advantageous to the business".[86] We asked the Home Office who the key stakeholders referred to above were and whether development of the FSS as a PPP could occur without consensus between them. In response the Home Office told us that key stakeholders included the FSS, ACPO, Association of Police Authorities, and the trade unions representing FSS staff.[87] It also stated that "The views of all stakeholders will be taken into account when determining next steps, but the main focus will be on the interests of the business, the cost, development and availability of forensic science for the police and how to maximise its potential impact on the CJS in reducing crime".[88] The Home Office's evidence clearly implies that, contrary to the impression given in its earlier statement, progression to PPP could indeed occur in the absence of agreement by all stakeholders that this is the best way to proceed. It is hard not to interpret the statement as an attempt to mollify those who opposed the PPP by using deliberate obfuscation.

43. The Home Office told us that the target date for the FSS GovCo to come into being was 1 July 2005.[89] To enable this to happen, the Home Office and FSS will need to revoke the Forensic Science Trading Fund Order 1998, incorporate the new company and develop its constitution.[90] In particular, provision needs to be made for:

Corporate governance;
Staff transfer and pension arrangements;
Business planning;
Commercial strategy;
Initial capitalisation, financing and performance targets; and
Contractual arrangements for the FSS continued operational role in respect of the NDNAD.[91]

Tim Wilson admitted to us that it was "an ambitious target and not everything within the process is under the control of the FSS or the Home Office", but highlighted the need "to move to a restructured FSS as quickly as possible".[92]

44. We fully recognise the importance of reducing uncertainty over the future of the FSS in as timely manner as possible. Indeed, the FSS had explicitly complained about the interregnum between the decision to move to PPP and the announcement of any further details, telling us that the major issue was not "the likely impact of transformation, but the need to bring this about as soon as possible, given that a freely competitive market is developing rapidly".[93] We therefore asked the Home Office why there had been such a long delay between the acceptance of McFarland's recommendations and the further statement in January 2005. The Minister told us: "having come into this in June, most of my discussions over the last six months have been about trying to establish for myself what the problems are and trying to make progress on discussions which have already happened, on work that had already been done on the outline business case in July of last year when the workshop was had with the trade unions on the outline business case, and I think some of those activities have just fallen into place in the last six months".[94] Other than the change in ministerial responsibilities, we have not heard any convincing reasons for the delay between the statement that the FSS would become a PPP and the announcement of further details on the plans to develop the FSS. This 18 month delay has been to the detriment of the FSS and its staff. It is also indicative of poor planning that, following this long delay, a very tight deadline was set for the FSS GovCo to come into being.

45. We asked the Home Office what specific criteria would be used to evaluate whether GovCo has been a success. In response the Home Office gave us a short list of "Typical measures for evaluating the success of a company of this type" and told us that it would be developing specific targets for the FSS over the next few months.[95] We also asked what criteria will be used to determine when or if the GovCo should be developed into a PPP. The Home Office responded in general terms again, telling us: "Any future move will be determined against comprehensive tests that take account of the possible benefits of private sector participation, likely changes in the forensic science market, benefits to business, realisable value to the government and access to private sector capital".[96]

46. It is worrying that the Government will have full responsibility both for designing the criteria by which the success of the FSS GovCo and the desirability of PPP will be assessed, and for making the assessment of whether those criteria have been met. Moreover, the Government, as sole shareholder, will have a significant influence over the management of the FSS through this transition; this in turn impacts on the chances of success at each stage. There is a pressing need for greater transparency and independent oversight of this process. We recommend that the Government make public the specific criteria that will be used for evaluating the success of GovCo and the need for progression to PPP. In addition, we recommend that the National Audit Office report on the Government's management of the transformation of the FSS in order to provide some level of independent scrutiny of the process.

47. Very clear evidence would be needed to justify a transition from GovCo status to a PPP. It should not be assumed that a GovCo is merely a transition step leading to a PPP and, if the FSS is successful as a GovCo, it should remain as such.

Next steps

48. If the Government does decide to develop the FSS as a public-private partnership, it must put in place certain conditions to safeguard the quality, availability and cost of services provided by, and public confidence in, the FSS. Firstly, the Government needs to recognise that the choice of private sector partner is a matter of great significance. Some of the reservations expressed in evidence about PPP related to this. The Royal Society of Edinburgh remarked on the uncertainty surrounding who the FSS "partners will be, and what their long-term view for the service will be".[97] The Home Office told us that no criteria had been drawn up regarding the exclusion of certain types of businesses as private sector partners, although the Minister did say in oral evidence: "We are not looking for people who come in, sort of venture capitalists, and take what they can and move out".[98] We hope that these conditions will be explicitly articulated at an early stage should a decision be made to pursue a PPP.

49. With regard to ensuring access to services for the police, the Home Office has told us that "In the transitional stage commitments will be placed on the FSS to provide services to forces as a supplier of last resort, but subject to value for money considerations and appropriate remuneration to reflect the costs of providing such services".[99] However, the FSS GovCo would be free to set its own price structures: there will be no cap on the prices of core services, for example.[100] Relying on competition to keep services affordable carries risks and, should the FSS become a PPP, it is not clear that it will still be required to act as supplier of last resort. We asked the FSS whether it would be tempted to cherry pick the more profitable services once given the freedom to do so. Dave Werrett, the Chief Executive, denied that this would be the case: "I think one of our greatest strengths and indeed commercial advantages is that we tend to offer a one-stop-shop service" (although we note that there is no authoritative definition of this service and the core menu of services differs between suppliers).[101] Nevertheless, the commercial pressures of an increasingly competitive marketplace may well cause an FSS PPP to review this policy: the costs associated with keeping rarely used and labour intensive services on the books may be hard to justify to shareholders. If the FSS becomes a PPP, the Government must put in place measures to ensure that the criminal justice system has continued access to the full range of forensic services at an affordable price—whether provided by the FSS or another supplier. We recommend that this be done on a force by force basis through agreements between police forces and suppliers, within the framework of the police procurement strategy.

50. Furthermore, we are mindful of the stressful impact that the uncertainty over the future of the FSS has had on staff there. The FSS is often cited as a "world leader" in forensic science and the skill and dedication of the FSS staff have undoubtedly been instrumental in building this reputation. We acknowledge the attempts made by the FSS management to understand better the views of their staff about the move to PPP by conducting surveys.[102] It is now up to both the Home Office and the FSS management team to take positive action to address the concerns expressed by staff over their own personal future at the FSS and their wider apprehensions about the future of the organisation.

Market in forensic services

51. The McFarland Review noted that, since the FSS became an Agency in 1991, the market for forensic science services has grown in real terms by 10.5% a year, attributing this growth to:

The increasing demands from the courts for independent evidence;

New and improved technology, principally the development of DNA;

The development of forensic science databases, principally the National DNA Database and the National Fingerprint Identification System; and

The reduced effectiveness of other methods of securing convictions.[103]

The Review team concluded that although growth would be less rapid over the next five years, annual volume growth should still reach around 8%.[104]

52. The Home Office memorandum also stated that, although the "market for forensic science has grown rapidly in recent years due mainly to the increased use of DNA", the "rate of market growth slowed significantly in 2003 and 2004" due to completion of the process of populating the National DNA Database.[105] ACPO expressed reservations about the future size of the market in forensic services: "Any development in the immediate future is likely to involve improving efficiency by rationalisation of services between forces, rather than outsourcing, thus restricting potential market opportunities for commercial providers".[106] ACPO further noted that it was "unlikely, given our assumptions about public expenditure constraints, that police spending on forensic services will continue to grow at a significant rate in the future", meaning that "The size of the market may therefore remain relatively stable, although the mechanisms within it, and the services we seek, will change".[107] The development of lab-on-a-chip technology that would enable police officers to carry out certain forensic tests at the crime scene could also lead to an increase in the proportion of forensic science work carried out in-house by the police.

53. In the light of these potential limitations, the future commercial success of the FSS may depend on it penetrating markets in other countries. Equally, if there is an active global market in forensic services, there is no reason why foreign companies could not increase their UK market share. We were interested to know whether the Home Office foresaw any difficulties for the UK in this scenario. Mr Wilson, Head of the Home Office Science Policy Unit, noted that "The Government are signatories to the Government Purchasing Agreement which, under the World Trade Organisation's rules, means that we cannot close up our gates to forensic science providers from any countries" and, furthermore, pointed out that "Much of the IPR [intellectual property rights used in the UK] is owned by US companies and there is US investment in the UK forensic science market already".[108]^,[109] The Home Office also emphasised the importance of partnering with businesses who have local knowledge, and suggested that consideration be given "to whether business risks from such overseas ventures need to be ring-fenced to limit the FSS's exposure in a way that such activities do not result in unacceptable risks to its UK forensic services and products".[110] The FSS said that it did provide some forensic services to other countries, e.g. by carrying out specialist testing and acting as expert witnesses.[111] The barriers experienced by the FSS in the global marketplace included the attempts by overseas judicial systems "to create their own abilities and retain funding within their system".[112] The FSS also pointed out that "Many countries do not have the necessary understanding of the investment necessary to ensure Forensic Services can be supplied and therefore funding resources are not in place".[113]

54. It is common knowledge that the existence of WTO rules does not guarantee free trade. In the case of forensic services, security restrictions in some countries may act as barriers to foreign companies seeking to enter their domestic market; some in the UK would argue that genuine security concerns make such restrictions not just legitimate but desirable. The Home Office appears to view a future global market in forensic services, where the UK provides an increasing proportion of services to other countries and foreign companies have an ever more significant role in the UK, as a natural extension of the status quo. We have seen no evidence that this view is based on a thorough analysis of the long-term implications of this scenario, either in terms of the realistic opportunities for the FSS (and other UK based companies) to gain a significant foothold in overseas markets, or in terms of whether extensive foreign involvement in the provision of services to the UK criminal justice system could jeopardise security or affect public confidence. We recommend that it undertakes such an analysis.

Regulation of the market

55. Much of the evidence received identified a need for a regulator to oversee the development of the forensic services market. At present, the Council for the Registration of Forensic Practitioners (CRFP) accredits individual forensic practitioners (see paragraph 132), while the UK Accreditation Service is recognised by the Government as the body for accreditation of all types of laboratories in conjunction with the two major standards: ISO/IEC 17025 and ISO 9000:2000. The arrangements for the National DNA Database are discussed in chapter four. The Forensic Science Society has only recently become a professional body and sees its role as providing "a coherent source of advice and knowledge to support the establishment of standards, working practices and policies that enable a more effective contribution to the criminal justice system from forensic science".[114]

56. We heard a range of opinions about who the regulator should be and what powers they should have. LGC was concerned that "continuing with a 'winner takes all' approach to awarding long-term multi-force contracts could rapidly destroy the market" and said there was therefore "a clear role for an independent custodian to oversee the operation of the forensic market".[115] Forensic Alliance told us that "The whole question of laboratory accreditation for criminal justice purposes should be properly tackled, perhaps through an extension of the database Custodian function, or the appointment of a Forensic Regulator or, conceivably, through The Council for the Registration of Forensic Practitioners (CRFP) which is already performing the vital analogous function of accrediting individual practitioners".[116]

57. Other memoranda pointed out the potentially disruptive effects that the development of novel technologies could have on the forensic services market. ACPO told us: "The forensic field is one in which any major technological or scientific breakthrough, particularly if it involves miniaturisation or portability, could result in short-term gain, but long-term loss of commercial opportunities for providers".[117] ACPO gave the example of "hand-held devices based on 'lab-on-a-chip' technology, linked directly to forensic databases" that would allow the police forces "to move more forensic analytical processes back 'in-house', as the need for laboratory based services decreases".[118] LGC also commented on the "need to ensure that the introduction of new technologies and techniques does not destroy the market".[119] LGC raised the possibility that if "a single supplier either develops or purchases rights to a particular technique, service or database which then becomes essential to forensic service provision, and secures a monopoly in its use, it will effectively prevent police forces from using a supplier without access to that technique".[120] It therefore advocated "a licensing system to be put in place, so that developers of new techniques can be appropriately rewarded for their innovation, but all suppliers can, on payment of an appropriate licensing fee and demonstration of competence, use the technique".[121]

58. The Home Office acknowledged that, whilst they were satisfied that the three main suppliers all had "a strong emphasis on the quality of service provided to the CJS […] further commercialisation of the forensic science market, especially with untested new entrants, could however change this position".[122] The Home Office has put forward a model for regulation that involves "the creation of a single quality assurance regulator (building on the experiences of the Custodian of the National DNA Database) accrediting suppliers who wish to provide services to the police and, by arrangement, other entities within the CJS".[123] According to this model, "accreditation would be granted at the corporate level but the accreditation process would be based on appropriate quality standards applying to:

The corporate body;
The products and services provided; and
The individuals responsible for the service".[124]

The standards set would be minimum standards and it would be up to police forces to demand higher standards in any particular area. We do not believe that the Home Office model for regulation based on the National DNA Database custodianship arrangements would provide for sufficient independent monitoring of the sector. We comment on the related but distinct issue of the custodianship arrangements for the National DNA Database in paragraph 76.

59. Historically, the FSS has also had responsibility for advising the Government on forensic science matters. This is no longer an appropriate arrangement in view of the changes taking place in the FSS and the forensic science market more generally. LGC, for example, noted that "the FSS's traditional position as both scientific advisors to their parent department, the Home Office, and custodian of national forensic intelligence resources, such as the National DNA Database, mean that careful separation of the commercial and strategic (national interest) functions of the FSS will be vital".[125] The FSS's role in the custodianship of the NDNAD is discussed in chapter four.

60. The Runciman Royal Commission on Criminal Justice recommended as early as 1993 that a Forensic Science Advisory Council should be created to serve as the regulator for the forensic science community and an independent source of advice.[126] Strathclyde University told us that, providing it included representatives of all the relevant stakeholders, such a Council could be an effective mechanism for ensuring "scientific standards, integrity, and continuity of provision of forensic science to the criminal justice system".[127] At this time of transition in the forensic services market, the need for an independent regulator is becoming ever more critical. We recommend that the Government establish a Forensic Science Advisory Council to oversee the regulation of the forensic science market and provide independent and impartial advice on forensic science. The Council should be an independent body but will need to include representatives of all the major stakeholders, such as the Home Office, the police, the FSS, Forensic Alliance and LGC, the Crown Prosecution Service, and the Bar. The Council would also be ideally placed to review, or to commission inspections of, the use of forensic science across the whole of the criminal justice system, and to propose improvements where necessary. The Council could additionally oversee the work of the Forensic Science Society and the Registration for the Council of Forensic Practitioners, which should also be able to put forward representatives to sit on the Council.

22 Ev 128 Back

23 Ev 128 Back

24 Ev 129 Back

25 Accenture, Efficiency and Effectiveness Review Programme: Tranche 21 Forensics and DNA Review, May 2002 Back

26 Home Office, Review of the Forensic Science Service, July 2003 Back

27 As above. Back

28 As above. Back

29 As above. Back

30 As above. Back

31 As above. Back

32 As above. Back

33 As above. Back