Government response
Introduction
The Government welcomes the Science and Technology
Committee's helpful and constructive report on forensic science
and is grateful to the Committee for the detailed work it has
undertaken in this area, which recognises the important contribution
of forensic science to detecting crime and making communities
safe.
Many of the recommendations made by the Committee
in its report are consistent with the Government's own vision
for the future of the Forensic Science Service (FSS) in what is
now a dynamic market-place and in the face of rapidly developing
technology. Many recommendations act as an endorsement of current
policy by recognising the importance of maintaining quality and
continuity of service, and they add timely impetus to ongoing
work in this area. Crucial to the Government's vision is the ability
of the FSS to be able to respond quickly and flexibly to the demands
of its police and other CJS customers. As the Gershon agenda drives
forward procurement reform within the police service, it is vital
that the FSS has the powers, freedoms and commercial enterprise
it needs to compete effectively with private sector suppliers
if it is to maintain its position as a world leader.
The Ministerial statement of January 11th 2005 made
clear the Government's intention to establish the FSS as a wholly
owned Government Company (GovCo). Following a review of the FSS
Transformation Programme and a thorough analysis of the work required
to enable a successful transformation, Ministers have agreed that
December 1st 2005 is a realistic target date for vesting the FSS
as a GovCo.
Alongside these structural changes, the Government's
ongoing commitment to high quality provision of forensic science
services remains firm. Ensuring continuity of service and ever-improving
performance requires a collective effort on the part of the FSS
and its stakeholders both now and in the future.
One part of this drive to improve quality, the DNA
Expansion Programme managed in partnership between the Home Office
and ACPO, is acknowledged internationally as being unparalleled
for focussed investment by central government in forensic science.
It has been a catalyst for strengthening forensic and analytic
capabilities within police forces, for encouraging modernisation
in police working practices and for investment in the provision
and automation of forensic testing. Following this success, from
April 2005 the Forensic Integration Strategy will build on the
achievements of the Expansion Programme by applying the lessons
learned to forensic science more generally, for example in using
forensic science intelligence more effectively to tackle cross-border
crime.
A number of the issues highlighted by the Committee
clearly fall outside the role of the Home Office. The Government's
full response to individual recommendations to the Home Office
follows below.
Responses to Recommendations
CHAPTER 2 - BACKGROUND
1. The low visibility of the Home Office Chief
Scientific Adviser is a source of concern, particularly in view
of the history of weak scientific culture in the department. (Paragraph
7)
The Committee's concern has been noted.
CHAPTER 3 - CHANGING STATUS OF THE FSS
2. 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. (Paragraph 35)
The immediate intention is to vest the FSS as a wholly
owned Government company and for the new organisation to be given
the opportunity to be a success in its own right.
A detailed review of the FSS Transformation Programme
and analysis of what is required to deliver this objective has
concluded that 1st December 2005 is a realistic date
for vesting the FSS as a GovCo. In the interim, work is underway
to ensure that FSS GovCo is set up with the appropriate powers,
freedoms, structures and resources to enable it to operate on
a robust and sustainable basis at arms length from the Home Office
and also to ensure that the FSS has completed the business planning
activity required to enable its success. Only after GovCo has
been given the opportunity to succeed in its own right will the
position with regard to moving to a Public Private Partnership
(PPP) be reviewed. No irrevocable decision about the future shape
and direction of the organisation will be made until at least
December 2006.
3. 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. (Paragraph 41)
There has been no change of policy. The Government
has always been focussed on creating the right conditions to allow
the FSS to compete effectively in a more dynamic forensic science
marketplace and to continue to make an important contribution
to the criminal justice system rather than on achieving a particular
organisational status.
The recommendation of the independent McFarland review
was for the FSS to be transformed into a Government owned company
as a first step, with the aim of evolution into a PPP. This was
endorsed by the Home Secretary in July 2003. However, the timeline
for change has since been modified to allow GovCo to be given
the opportunity to succeed in its own right.
The Government is sympathetic to the concerns of
the FSS and its staff, but whilst every effort is being made to
keep staff informed, the intricacies of the process have made
it extremely difficult to specify precise timescales without fuelling
unrealistic expectations.
4. 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. (Paragraph
42)
The Government has engaged in full and ongoing consultation
with stakeholders since the McFarland review and has not attempted
to obscure its intentions in relation to decisions on the future
of the FSS. Stakeholder agreement that conditions for change are
favourable remains a key factor but it was never intended that
there should be any form of individual veto. 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; and
how best to maximise its potential impact on reducing crime.
5. 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.
(Paragraph 44)
The Government has always recognised that the task
of transforming the FSS would be a complex, time-consuming process
demanding a composite range of skills and expertise. The primary
objective has always been the establishment of a first class service
to support the police and the wider criminal justice system, and
to that end every aspect of the Government's original proposal
has been subject to detailed scrutiny.
The Government has made every effort to listen to
staff whilst planning for the future, including holding regular
meetings with the FSS' Trade Union representatives and visits
by officials to all FSS laboratories. It is recognised with regret
that the extended timescale may have fuelled speculation within
the FSS. However, it is clearly in the best interests of all concerned
that sufficient time is allowed for this process to be planned
and managed in the most effective way. Based on robust planning
of the FSS Transformation Programme, we have now been able to
communicate a realistic vesting date of 1st December
2005 to all FSS staff.
6. 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. (Paragraph 46)
Government departments have a duty to ensure that
the bodies they sponsor conduct their operations as economically,
efficiently and effectively as possible with due regard to regularity
and propriety and any financial objectives. Departments are accountable
to Parliament for the manner in which they discharge this duty.
The performance assessment criteria for FSS GovCo will be set
and monitored within these overriding departmental responsibilities.
Specific measures to assess the performance of FSS
GovCo are being developed as part of the ongoing business planning
process. The Government has also defined Conditions Precedent
for any potential future move to PPP as part of ongoing planning
for the transformation. There is no intention to conceal any
performance-related information, but it would not be reasonable
to disclose any commercially sensitive information that could
undermine the ability of FSS GovCo to operate competitively. In
line with the Committee's request, and in the interests of transparency
careful consideration will be given to which information it would
be appropriate to place in the public domain.
The Government would welcome and fully co-operate
with any scrutiny by the National Audit Office.
7. 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. (Paragraph 47)
In the light of the FSS' performance as a GovCo,
the Government will consider if further steps are necessary to
facilitate the future growth of the business taking into account
both the best interests of the organisation and the needs of the
criminal justice system.
The Minister was open with the Committee in discussing
the Government's issues surrounding additional capital investment
in the FSS given current fiscal constraints. A transition from
GovCo to PPP status is likely to bring real advantages for the
FSS in that it will bring external investment which will allow
the FSS to remain at the forefront of developing technologies.
However, the Government accepts the Committee's recommendation
that FSS GovCo should be given every opportunity to succeed in
its own right.
8. 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. (Paragraph 49)
This issue is being addressed jointly by the Home
Office, ACPO and the APA who are working together to reform forensic
procurement arrangements. The capacity of the police to act as
an intelligent customer will be reinforced by the creation of
the Centre for Procurement Excellence in the Police Service.
9. 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. (Paragraph 50)
By agreement with the Home Office, the FSS is taking
the lead on staff communication issues relating to the Service's
change of status. An initiative has been launched to understand
better staff concerns so that they may be effectively addressed.
A comprehensive Communications Strategy and Plan have been developed.
The plan will be executed throughout the transformation process
and will include the use of staff bulletins, Chief Executive Notices,
site visits by senior managers and Board members and presentations
to staff. Appropriate feedback mechanisms have also been put in
place.
The FSS recognises that it will need to work to allay
apprehensions and help people to feel comfortable with the scale
and pace of change as developments unfold.
10. 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. (Paragraph 54)
The Home Office, ACPO and APA are in the process
of transforming the procurement of forensic science so that in
future the purchase of forensic science services by the police
will be wholly based on a competitive tender process. A strategic
analysis of the market that draws on the lessons from the early
pilot areas and informs the evolution of the tendering strategy
is planned. This will include the implications of foreign involvement
in the UK forensic market in relation to quality and security
of supply and, in light of the Committee's recommendation, will
also incorporate the security and public interest dimensions.
In the interim, quality of services and security
of supply are tightly controlled by the terms of contracts with
individual suppliers which include specifications for the output
of each piece of work.
11. 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. (Paragraph 60)
The Committee's recommendation has been noted. The
Home Office, in conjunction with ACPO and the APA, have initiated
a consultation exercise looking at quality regulation in forensic
science.
12. 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. (Paragraph 60)
The Committee's observation is noted. The Home Office,
ACPO and APA consultation includes consideration of quality accreditation
and regular validation.
CHAPTER 4 - NATIONAL DATABASES
13. The arguments for the retention of DNA
profiles of suspects who are not ultimately convicted in the interests
of fighting crime need to be balanced against any potential infringement
of civil liberties arising from this policy. (Paragraph 69)
The Government is alive to the need to balance the
interests of society against the right to privacy of the individual.
It believes that the present arrangements are proportionate to
the benefits they bring in protecting citizens against crime and
bringing offenders to justice. The Government believes firmly
that the measures taken to retain the samples and fingerprints
of persons who have been arrested, albeit not convicted, for a
recordable offence are proportionate and justified. That view
has been thoroughly tested and supported by the Law Lords in the
Case of R v Chief Constable of South Yorkshire ex parte S and
Marper. The evidence given to the Committee of the number of samples
which would previously have fallen to be destroyed but which were
later found to match against stains found at the scenes of some
very serious crimes bears out the value of retaining this information.
Although we acknowledge that some persons who have not been convicted
of an offence do sometimes feel aggrieved that this biometric
information is retained, the Law Lords in the quoted case rejected
the suggestion that this group of people are somehow stigmatised
as a result. Persons who do not go on to commit an offence have
no reason to fear the retention of this information.
14. DNA evidence now represents a vital instrument
for facilitating investigations and securing convictions. We believe
that the recent expansion of the database would make a review
of the impact of the NDNAD on the detection and deterrence of
crime timely. (Paragraph 71)
The Government has been evaluating the impact of
expanding the collection of DNA by the police, the subsequent
database growth and subsequent investigative impacts. To date,
evaluation data and analysis has been used in the management of
the Home Office DNA Expansion Programme. It has also been used
in the development of police operational good practice. The Home
Office will shortly be publishing a summary of what has been achieved
through the Government's DNA Expansion Programme.
15. Independent research should be undertaken
to assess the public attitude towards retention of DNA samples
(both from convicted criminals and others), and the evidence of
benefits associated with this practice. (Paragraph 72)
The need for further independent research of public
attitudes is noted by the Government. Some items assessing the
views of the public as to the value of forensic evidence were
included in the 2003 Crime and Justice Survey and the Government
will consider covering this specific point in further surveys.
16. We do not understand why consent should
be irrevocable for individuals who are giving DNA samples on a
voluntary basis. (Paragraph 75)
The rationale for not permitting a volunteer to withdraw
their consent to their profile being retained on the national
DNA Database is to avoid a return to the situation prior to the
Criminal Justice Act 2001. Situations where consent had been given
and then withdrawn, but for whatever reasons the profile remained
on the database and was found to match that taken from a crime
scene, could lead to arguments as to the admissibility of such
evidence in any subsequent criminal proceedings. Withdrawal of
consent could also be a precursor to future illegal activity.
The information held on the database is only used if a stored
sample is matched with a sample recovered from a crime scene.
As with individuals acquitted of an offence for which DNA was
taken and those whose prosecutions are not proceeded with, a law
abiding person has nothing to fear from having their profile on
the database.
17. Inviting a member of the Human Genetics
Commission to sit on the NDNAD Board does not substitute for instigating
proper arrangements for ethical and lay input. In failing to respond
more positively to the calls for independent oversight of the
database, the Home Office gave the impression that it was not
a high priority. (Paragraph 77)
The Government is discussing new tripartite arrangements
for the governance of the NDNAD with ACPO and the APA. The tripartite
bodies are also in discussion with the Human Genetics Commission
about ways in which independent oversight of the NDNAD and the
control of retained samples might be enhanced. The Government
expects to be able to make an announcement about the results of
these discussions early in the autumn.
18. We welcome the fact that the Home Office
is to revise the custodianship arrangements for the NDNAD, and
in particular the decision to remove the custodianship function
from the FSS. However, we have not heard any firm commitment by
the Home Office to establish an independent body with full ethical
and lay input to oversee the workings of the database, in accordance
with the recommendations of the Human Genetics Commission and
others. Failure to do this at this juncture would be a wasted
opportunity. (Paragraph 80)
See response to recommendation 17.
19. We regret the Home Office's misleading
representation of the position of the Human Genetics Commission
and its failure to take on board the Commission's criticisms.
(Paragraph 81)
Evidence was given to the Committee by Home Office
officials in good faith. The HGC's evidence on this issue submitted
in February to the Select Committee was drawn to the attention
of witnesses after the hearing in February at which this point
was raised.
20. It is extremely regrettable that for
most of time that the NDNAD has been in existence there has been
no formal ethical review of applications to use the database and
the associated samples for research purposes. The recent initiation
of negotiations with the Central Office for Research Ethics Committees
is too little too late. (Paragraph 82)
The FSS Custodian has maintained a log of research
requests and such requests are subject to Database Board consideration,
decisions being reported in the minutes of the meeting. Discussions
about the new tripartite arrangements referred to in the response
to recommendation 17 include how the existing arrangements might
be further strengthened and subject to independent assessment.
21. We are concerned that the introduction
of familial searching has occurred in the absence of any Parliamentary
debate about the merits of the approach and its ethical implications.
(Paragraph 84)
The Government notes the concern expressed. The Database
Board carefully considered this issue and has authorised the use
of the technique only after specific clearance by an officer of
ACPO rank. This technique has been used around 80 times between
July 2003 and June 2005. Its value was demonstrated in identifying
the person responsible for the murder, 30 years ago, of three
teenage girls in South Wales. It was also successfully used in
the investigation into the murder of Michael Little, a lorry driver
who was killed in March 2003 when a brick was thrown from a bridge
through his windscreen.
22. Any future extension to the applications
for which the data in the NDNAD can be used must be subject to
public scrutiny. (Paragraph 85)
See the response to recommendation 17.
23. We recognise that adventitious matches
are extremely unlikely under the current regime. Nevertheless,
we find Professor Sir Alec Jeffreys' warning that the "consequences
of even one false match leading to a conviction that was subsequently
overturned could be severe for the DNA database and its public
acceptability" sufficiently persuasive to merit a thorough
investigation of the benefits and risks of staying with the current
10 marker system and moving to, for argument's sake, a 16 marker
system. We therefore recommend that the Government commission
a cost-benefit analysis for this move. (Paragraph 88)
The Government has every confidence in the system
presently in use, but recognises that it should keep its reliability
and level of discrimination under review. Hence, discussions have
taken place with Professor Sir Alec Jeffreys about some of the
issues that were raised by the Committee, particularly in relation
to the number of markers used. A note of this meeting has been
submitted to the Committee. This will result in discussions with
manufacturers and the validation by European scientific DNA working
groups (European Network of Forensic Science Institutes/ European
DNA Profiling Group) of arrangements for a new system. Once this
is achieved the Government will consider the benefits for changing
to it, which would include a full cost-benefit analysis.
24. The Government should continue to make
funding available to enable the upgrading of SGM profiles currently
stored in the NDNAD to SGM Plus profiles. We further recommend
that cases where DNA evidence has been used to convict someone
who continues to protest their innocence should be kept live so
that if another profile is added to the NDNAD that matches that
used in the conviction of the individual, it will be spotted and
acted upon. (Paragraph 89)
The Government supports and contributes centrally
towards the cost of current policy which is to upgrade profiles
involved in a match where they are not at 'full SGMplus' standard.
This assessment is made on a case-by-case basis. When 'new' profiles
are loaded to the database they are routinely searched against
all profiles (including those of convicted persons found to be
identical to a crime scene sample, although the crime scene sample
itself could have been deleted) already on the database and any
duplication (through alias, multiple-sampling or adventitious/chance
matching) will be reported to the forces concerned.
25. The police and the Home Office must ensure
that they give adequate attention to the access and custodianship
arrangements of other national forensic databases and put in place
mechanisms for data sharing between suppliers where required.
(Paragraph 90)
The key principle for both forensic procurement arrangements
and the allocation of FSS Trading Fund assets is that these should
ensure that data sharing between suppliers takes place when required
and in a manner that does not confer an unfair advantage on any
party.
26. Increasing the connectivity of different
databases, whether at the national or international level, may
have significant ethical implications. The Government must take
this into account when considering the linking or cross-referencing
of forensic databases. (Paragraph 91)
This issue is being addressed by the Government during
both its EU and G8 presidencies. In addition to technical and
business process issues, the Government will ensure that the ethical,
legal and privacy implications are addressed in discussions about
how the exchange of DNA data internationally can contribute to
combating cross-border crime.
CHAPTER 5 - EDUCATION AND TRAINING
27. The two largest employers of forensic
scientists in the UK are the police and the Forensic Science Service,
responsibility for which falls within the remit of the Home Office.
It is disappointing that, in view of the concerns expressed to
us by the police and the wider forensic science community over
standards in forensic science education, the Home Office has taken
no action to communicate the existence of these problems to colleagues
at DfES. We regret this lack of co-ordination between the Home
Office and DfES. (Paragraph 95)
The Home Office is not responsible for Higher Education.
However, Professor Wiles (the Home Office Chief Scientific Adviser)
will raise this matter with Professor Sir Alan Wilson.
28. We trust that the Forensic Science Society
will take on board the criticisms of major providers of forensic
science courses in the further development of its accreditation
scheme. (Paragraph 97)
This is a matter for the Forensic Science Society.
29. Although we recognise the need for some
kind of quality control system to be put in place, the fact that
the two main employers in the forensic science sector will not
give preferential treatment to graduates of accredited courses
somewhat undermines the value of the Forensic Science Society's
scheme. Furthermore, it sends out a confusing message to students
and may give them the erroneous impression that opting for an
accredited course will automatically increase their chances of
subsequent employment in the sector. (Paragraph 98)
The FSS' preferred option for recruiting scientists
at trainee Reporting Officer level is to employ graduates who
have had a thorough grounding in a relevant basic science such
as chemistry, biology, biochemistry, genetics, etc. The proliferation
of courses offering teaching in 'Forensic Science' has been a
cause for concern for some time given that many of these courses
do not teach basic science to graduate level.
The new accreditation scheme focuses on the 'forensic'
component of a degree course and is not designed to offer assurances
as to the quality of the underpinning science content. If in time
the scheme is able to develop to address this issue, the FSS would
no doubt feel more assured regarding the scientific ability of
graduates of Forensic Science Society accredited courses.
The fact remains, however, that like other employers
the FSS considers applications from graduates on their individual
merits in the spirit of fair and open competition. Such an approach,
which the FSS believes is the correct one, discounts and guards
against recruitment practices tending to preferential treatment.
Recruitment information on the FSS website (at http://www.forensic.gov.uk/forensic_t/inside/career/opp_1.htm)
explains the position in greater detail for those considering
a career in the FSS.
30. There is an opportunity to harness the
excitement surrounding forensic science to promote interest in
science more generally. Academically rigorous and scientifically
sound joint honours degrees in forensic science and chemistry,
biology etc. could build on the appeal of forensic science while
providing students with the analytical skills and scientific background
required by employers. These degrees need to be developed in close
collaboration with the main employers in order to ensure that
graduates would be well qualified for the roles for which these
organisations recruit. (Paragraph 100)
The Committee's useful comments are noted. The Home
Office will examine these issues in its discussions with the Forensic
Science Society and other professional bodies.
31. We recommend that the Forensic Science
Society, SEMTA and the main employers work together with the Royal
Society of Chemistry to promote an understanding of the value
of chemistry as a route into forensic science. This could be done,
for example, through visits into schools by practising forensic
scientists. (Paragraph 101)
The Home Office accepts the view that the relevance
of chemistry to this field should be promoted. The Royal Society
of Chemistry (RSC) as the professional body should take the lead
but we are happy to work with the RSC and have contacted the RSC
in relation to this matter.
32. We welcome the actions taken by ACPO
to improve police training in forensic science and urge it to
continue, and enhance, these efforts in the future. Forensic science
is not just a means of proving someone's guilt or innocence. If
used properly, forensic techniques can serve as vital intelligence
tools to underpin the entire investigative process. Forensic science
has a key role to play in enabling the intelligence-led approach
to policing embodied by the National Intelligence Model. It is
thus essential that police training in forensic science is delivered
within the context of the National Intelligence Model. This should
help to ensure that forensic awareness becomes embedded in the
wider police force, rather than being confined to those in specialist
roles or who have had specific training. (Paragraph 107)
This is a matter for consideration by ACPO.
33. We recommend that the Home Office, ACPO
and the Association of Police Authorities ensure that regular
seminars are held to keep those Chief Officers with responsibilities
for forensic matters in a force up to date and active. (Paragraph
108)
The ACPO Council will shortly be reviewing the arrangements
for ensuring that their members are fully abreast of forensic
issues. This recommendation has been drawn to the attention of
Mr Lake (the Chief Constable of Lincolnshire and ACPO lead for
Forensic Science) and he has agreed to consider it within that
process.
34. The multiplicity of organisations involved
in identifying and disseminating good practice in forensic science
to the police is unhelpful and wasteful. We support ACPO's view
that there is a need to rationalise the functions of these bodies
and recommend that a single organisation be given overall responsibility
for co-ordinating best practice in forensic science for the police.
This should be done without delay to prevent further duplication
of effort and expenditure. (Paragraph 110)
This issue will be addressed in the development of
the quality regulation framework and the National Policing Improvement
Agency.
35. The Forensic Science Advisory Council
will be essential for ensuring that the police continue to have
access to independent and impartial expert advice on forensic
science in a competitive marketplace. (Paragraph 115)
The Committee's observation has been noted.
CHAPTER 6 - RESEARCH AND DEVELOPMENT
36. At this time of heightened security,
it is unacceptable that so many opportunities to develop technologies
that could assist in the battle against crime and terrorism are
being squandered due to a lack of information for researchers
and poor management of the research process. We recommend that
the Home Office, Police Science and Technology Strategy Group
and the Research Councils examine ways to resolve this. (Paragraph
123)
This issue will be addressed in the forthcoming analysis
of the Science and Technology Strategy and the Forensic Integration
Strategy.
37. The Home Office has published a high
level Police Science and Technology Strategy and developed complex
vehicles for its delivery. Yet it has singularly failed to engage
with the scientists and engineers working in academia whose research
is so essential for meeting the objectives identified in the Strategy.
(Paragraph 124)
The Home Office has developed very valuable links
with academic institutions particularly via the Forensic Science
and Pathology Unit, Forensic Science Service and the Home Office
Scientific Development Branch. We are keen to increase our interactions
in this area.
The Home Office's Chief Scientific Adviser Professor
Wiles has already written to the scientists who appeared before
the Committee to arrange a meeting to discuss their concerns.
This issue will be examined in more detail by the
Strategy Group and the Home Office Chief Scientific Adviser.
38. We recommend that the Home Office introduce
fast-track grants for moving promising technologies from the proof-of-concept
to the market-ready stage. In addition to funding, these grants
should incorporate support to expedite the technology transfer
process. (Paragraph 125)
The Home Office is not well placed to manage this
form of grants system. There may however be mechanisms in place
within the Research Councils' work which could be adapted for
such a programme. The Home Office already has good links with
a number of the Research Councils and the Chief Scientific Adviser
will arrange to explore with the Councils how we can ensure that
good research has access to the right funding regardless of the
discipline.
After consultation with those who reported concerns,
discussions will be held with the Research Councils to investigate
the possible use of such systems.
The forensic science suppliers, as those with a clear
understanding of the requirements, should also be in a position
to work in collaboration with academics to develop new techniques.
39. It is not possible to predict with any
certainty the impact that development as GovCo and possibly as
a PPP will have on the amount of R&D undertaken by the FSS.
We are concerned that this impact could be negative. Should there
be any significant fall in the percentage of R&D conducted
by the FSS, the Government may need to introduce incentives to
stimulate R&D in this sector. (Paragraph 127)
The Committee's concern is noted. Changes in the
market are expected to increase the investment in R&D. This
position will be monitored.
40. The IPR that has been developed within
the FSS must remain freely available to the police once the FSS
becomes a GovCo and potentially a PPP. (Paragraph 129)
The FSS Transformation programme is evaluating which
IPR assets should be transferred to the FSS as part of the ongoing
vesting process. ACPO will be consulted on any proposals made
in order to ensure that future arrangements will not adversely
affect police access.
CHAPTER 7 -USE OF FORENSIC EVIDENCE IN COURT
41. The CRFP must itself be subject to regular
independent auditing of the assessment processes used to grant
accreditation and renewal of accreditation, as well as the disciplinary
procedures. It is essential that the CRFP is, and is seen to be,
transparent, accountable and independent. It must also be seen
to exercise its duty of care by vigorous and appropriate actions
in respect of malpractice allegations about registrants. (Paragraph
135)
The governance of the CRFP is a matter for the Council.
However, the involvement of the CRFP in the CJS is dependant
on it maintaining the confidence of the key stakeholders, who
are represented on the Council. The issue will be discussed with
the Council.
42. As the community of registrants grows
in an emerging specialism, the problems associated with the small
number of possible assessors should diminish. In the meantime,
CRFP must take care to monitor the assessment process carefully,
if necessary using the services of overseas experts with appropriate
experience and expertise. (Paragraph 136)
This is a matter for the CRFP.
43. Providing that the current problems with
the Register can be resolved, as the percentage of registered
practitioners in the mainstream specialities increases, there
will be a strong case for CRFP registration being made mandatory
for experts in those specialities presenting evidence to the courts.
(Paragraph 139)
It would not be appropriate for the Government to
mandate registration with a private organisation. The criminal
justice system must have access to appropriate expert testimony
to ensure it reaches the correct decision. The use of a
mandatory registration scheme would prevent appropriate experts
from giving testimony in a number of circumstances, for example
where the required expert does not normally work within the forensic
arena and is therefore not registered. Another example might
be that the required expert may work within the forensic arena
but, perhaps due to working in research and development, does
not carry out sufficient casework to be registered. The required
expert may not work within the UK, or expertise may be required
in a subject which rarely comes before the court. It therefore
seems more sensible to have a scheme whereby the registration
is voluntary. Where someone seeks to appear as an expert
witness in an area where registration is available but they are
not registered, this will highlight to the judge the need to consider
carefully whether their testimony should be admitted and, if so,
on what basis.
44. The Forensic Science Society should also consider
making CRFP registration a condition of membership for active
practitioners in order to stimulate uptake of accreditation. (Paragraph
139)
This is a matter for the Forensic Science Society.
45. We are disappointed to discover such
widespread acknowledgement of the influence that the charisma
of the expert can have over a jury's response to their testimony,
without proportional concomitant action to address this problem.
If key players in the criminal justice system, including the police
and experienced expert witnesses, do not have faith in a jury's
ability to distinguish between the strength of evidence and the
personality of the expert witness presenting it, it is hard to
see why anyone else should. There is clearly no easy answer to
this problem, but that does not justify the complacent attitude
of the CPS. (Paragraph 142)
This is a matter for the CPS.
46. The training of expert witnesses in the
general principles of presentation of evidence to courts and the
legal process is essential. For independent forensic practitioners
and those who would not otherwise receive such training, the Department
for Constitutional Affairs should make funding available to ensure
that they do have access to this training in advance of their
appearance in court. (Paragraph 144)
We do not accept that the DCA should be responsible
for funding the training of expert witnesses. Such training is
the responsibility of the professions to which expert witnesses
belong, and a variety of training in this area is already available.
47. There is a need for clear guidelines
to be issued setting out the acceptable areas of training for
witnesses. These guidelines must also take into account the special
status of expert witnesses, as distinct from ordinary witnesses.
In addition, the guidelines should clearly differentiate between
the roles of experts in the family, civil and criminal courts.
(Paragraph 145)
Guidelines on the acceptable areas of training for
witnesses are already set out by case law. However the case law
may not be as accessible as it should be. We are looking at ways
of disseminating case law through the CRFP and other appropriate
bodies, and the Crown Prosecution Service has distributed national
policy guidance on training for witnesses, prepared in the light
of recent case law.
48. Pre-trial meetings to identify areas
of agreement and disagreement between experts must be held as
a matter of routine; it is a false economy not to allow enough
time for full discussion at this stage. We trust that the Criminal
Case Management Framework and Criminal Procedure Rules 2005 will
help to ensure that this happens in future but the Judicial Studies
Board should ensure that its guidance emphasises the importance
of this to the judiciary. (Paragraph 152)
The Criminal Procedure Rules Committee has been informed
of this proposal. It is actively considering the adequacy of
the relevant procedural rules in the light of the Committee's
comments, whilst bearing in mind that those new rules only came
into force on 4 April.
The JSB does not issue guidance per se but rather
part of its objective in training is to highlight best practice
based on recent decisions, statutes, directions and the like.
Continuation training in particular would enable the discussion
of the merits and drawbacks of issues such as this, subject to
what is required by any authorities and rules. However it is not
possible to cover each and every topic and items and issues of
significant change will inevitably take first priority.
49. We urge the Legal Services Commission
to implement Lord Justice Auld's recommendation to provide for
automatic authorisation of funding where a judge is of the view
that an expert should be instructed. (Paragraph 156)
The Legal Services Commission does not accept this
recommendation. Where there is a judicial recommendation to instruct
an expert, authorisation of funding should not be automatic.
If this were to happen there would be no incentive for those representing
clients to seek out not only the most appropriate but also the
most cost effective expert since searching for better value, i.e.
cheaper experts, is a time -consuming activity. If there were
to be a guaranteed authorisation of funding following a judicial
recommendation to instruct an expert, then suppliers would be
likely to instruct the first suitable expert that they find, having
little regard to costs of the same. This in turn could lead to
a general increase in the fees that experts charge if their selection
no longer relies upon any cost-based criteria. This could lead
to a significant increase in the Criminal Legal Aid Budget.
50. We are of the view that there is significant
room for improvement in the way that statistical evidence, including
risks and probabilities, is presented to juries. In order for
this to occur, there needs to be a better understanding of the
forms of wording and presentation that are easiest to understand,
and least misleading, to members of the general public. We do
not make a judgement about which form of wording is most apposite
for the presentation of DNA evidence but recommend that the decision
be informed by research. (Paragraph 162)
The Home Office is considering the issues raised
with regard to DNA evidence and have arranged a meeting with Mr
Cooke, appropriate officials from the department, the Crown Prosecution
Service and the Forensic Science Service to establish the
issues which need to be addressed. Once the issues have
been clarified the Home Office shall, in conjunction with key
stakeholders in the CJS (particularly the Crown Prosecution Service),
determine the appropriate method of addressing them.
On the wider issue of the use of statistics in the
criminal justice system Prof. Wiles (the Home Office's Chief Scientific
Adviser) has written to the Royal Statistical Society to arrange
a meeting. The purpose will be to consider how best to ensure
that statistics employed within the criminal justice system are
accurate, properly applied and presented in an understandable
manner.
51. The absence of formal and permanent channels
for forensic scientists and experts to give feedback on their
courtroom experiences seems to us to represent a serious flaw
in the criminal justice system. We recommend that the Home Office
establish a forum for Science and the Law, which meets at least
every six months. If the recommendation to set up a Forensic Science
Advisory Council is adopted, the forum should be subsumed into
this body. (Paragraph 163)
The Home Office, ACPO and APA have initiated discussions
about quality regulation, with the aim of undertaking a broader
consultation with stakeholders and interested parties in the criminal
justice system. The wider issue of quality improvement will be
considered as part of this consultation, and this will include
the option of establishing a forum.
52. Jury research is vital to understand
how juries cope with highly complex forensic evidence. Jury research
would also be instructive for understanding differences in the
way that jurors respond to oral and written reports by experts,
and how easy they find interpretation of these reports. We recommend
that section 8 of the Contempt of Court Act be amended to permit
research into jurors' deliberations. (Paragraph 166)
This issue is being addressed in the context of the
current Department for Constitutional Affairs consultation exercise
on jury research. The closing date for responses was 15 April
2005, and the results of the consultation are expected to be published
in the autumn of 2005.
53. Advancements in science and technology
impact on both the techniques used by criminals and the approaches
employed in fighting and detecting crime. It is, therefore, highly
likely that the number of cases which depend on complex forensic
evidence will increase. This is already happening with regard
to digital evidence. The Home Office should undertake research
to test whether there would be value in extending the arrangements
for complex fraud trials to be tried without a jury to other serious
cases that rest on highly complex scientific evidence. This research
must also address public attitudes towards this possibility. (Paragraph
167)
The appropriateness of using juries to deal with
technically complex cases was explored by the Home Office in the
consultation exercise preceding the introduction of the Criminal
Justice Bill in November 2002. The bill originally included provision
for the prosecution to apply, on grounds of length or complexity,
for a Crown Court trial to take place before a judge sitting without
a jury. This provision was amended during its progress through
Parliament, and as enacted (at section 43 of the Criminal Justice
Act 2003) it applies only to long or complex serious fraud trials.
The Government has no plans to seek to extend the ambit of this
provision.
54. Expert witnesses have been penalised
far more publicly than the judge or lawyers in cases where expert
evidence has been called into question. These cases represent
a systems failure. Focussing criticism on the expert has a detrimental
effect on the willingness of other experts to serve as witnesses
and detracts attention from the flaws in the court process and
legal system which, if addressed, could help to prevent future
miscarriages of justice. (Paragraph 170)
The Committee's comments are noted.
55. The absence of an agreed protocol for
the validation of scientific techniques prior to their being admitted
in court is entirely unsatisfactory. Judges are not well-placed
to determine scientific validity without input from scientists.
We recommend that one of the first tasks of the Forensic Science
Advisory Council be to develop a "gate-keeping" test
for expert evidence. This should be done in partnership with judges,
scientists and other key players in the criminal justice system,
and should build on the US Daubert test. (Paragraph 173)
As noted earlier (in the response to recommendation
10), the Home Office, ACPO and APA are planning to consult with
stakeholders on the issue of quality regulation in forensic science.
The establishment of a regulator is one of the options to be
considered, as is how the courts can be supported in appropriately
weighing scientific evidence.
56. The stance of the Bar Council, Home Office
and CPS that the adversarial system provides sufficient safeguards
so as to obviate the need for independent scrutiny of expert evidence
is complacent and at odds with the views of the police. (Paragraph
175)
The Committee's comment is noted.
57. Even if problems are rare, the human
cost and damage to public confidence in the criminal justice system
caused by the miscarriages of justice associated with flawed expert
evidence that have already occurred must be taken into account.
Moreover, we believe that steps could be taken that would reduce
the potential for such miscarriages of justices to occur. We recommend
that a Scientific Review Committee be established within the Criminal
Cases Review Commission. This Committee would be charged with
handling complaints about expert evidence and, even where there
are no grounds for an appeal, should work closely with the main
forensic providers and the CRFP to address any problems identified
with an expert's conduct. (Paragraph 176)
The Government does not consider that an activity
of the kind proposed, which would have a significant regulatory
function, would fit appropriately alongside the Commission's statutory
functions as an independent body investigating suspected miscarriages
of justice.
58. While we have no particular complaints
about the quality of the guidance available to lawyers on the
understanding and presentation of forensic evidence, it is of
great concern that there is currently no mandatory training for
lawyers in this area. In view of the increasingly important role
played by DNA and other forensic evidence in criminal investigations,
it is wholly inadequate to rely on the interest and self-motivation
of the legal profession to take advantage of the training on offer.
We recommend that the Bar make a minimum level of training and
continuing professional development in forensic evidence compulsory.
(Paragraph 180)
Professional training is a matter for the governing
bodies of the legal profession such as ILEX, The Law Society,
The Bar Council and indeed employers of employed barristers (whether
government or private firms). Members of the bar are obliged
by the General Council of the Bar Code of Conduct to ensure that
they are competent to accept briefs/ instructions and so should
not be in a position of accepting a brief if they do not understand
the case. The Bar Council operates a system of compulsory basic
training for all barristers. Compliance with Continuing Professional
Development requirements are met by attending training courses
offered by both the Bar Council and external providers, some of
which cover forensic science.
The Committee is also referred to the response to
recommendation 46.
59. We recommend that judges be given an
annual update on scientific developments of relevance to the courts.
(Paragraph 182)
The Judicial Studies Board (JSB) is responsible for
the training of judges and judicial independence dictates that
it will be for senior judiciary to determine any subjects that
must form a core part of any training. Scientific evidence is
potentially used in all jurisdictions (criminal, family and civil)
and therefore it is unlikely that one annual update could suffice
in any event. The best answer probably lies in providing the judiciary
with access to any useful avenues of information available, and
links to website materials with appropriate disclaimers would
be one such medium. The JSB would consider providing links for
these through its own website.
The Home Office Science Group already assist the
JSB in the provision of training to the judiciary and would be
happy to assist the JSB in any new training they may wish to present.
60. We recommend that the Home Office issue
a consultation on the development of a cadre of lawyers and judges
with specialist understanding of specific areas of forensic evidence.
An additional benefit to this would be the creation of a small
group of judges and prosecution and defence lawyers with the ability
and current knowledge to act as mentors to their peers when required.
(Paragraph 184)
The Home Office accepts the value of having lawyers
who fully understand the evidence placed before the courts.
Having consulted other stakeholders in the criminal justice system
it appears a number of judges and lawyers already have specialist
knowledge of this kind, and can be identified through directories.
July 2005
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