Forensic Science Service

Written evidence submitted by the Forensic Science Northern Ireland (FSNI) (FSS 46)

As the Chief Executive of FSNI, the primary Forensic Science provider to the Northern Ireland Criminal Justice System, I welcome the Committee’s involvement in this very important issue.

1. Declaration of Interests

1.1 My response to the consultation is given on behalf of the Agency itself as an active provider in the forensic science arena, which works closely with the FSS and other providers. The views in this response do not necessarily fully reflect the views of our sponsor department, the devolved administration’s Department of Justice (DOJ), who may have their own perspective which they may wish to share with you.

1.2 As an Executive Agency of the DOJ, operating under a cost-recovery funding model, we are impacted to some degree (operationally rather than commercially) by developments in the Forensic Science marketplace in England & Wales. FSNI are the sole indigenous supplier of forensic science services to the CJS in NI, although we do occasionally provide consultancy to overseas countries. We actively collaborate on issues of quality, forensic science development and Health & Safety with many of the major providers (state and commercial) within these islands, both bilaterally and under the auspices of the Association of Forensic Science Providers (AFSP). There is also considerable collaboration across Europe, under the auspices of the European Network of Forensic Science Institutes, between over 55 forensic science organisations (almost entirely public sector organisations) - FSS and FSNI amongst them. There is heavy activity between all these organisations within the ENFSI specialist working groups covering the many diverse forensic specialisms.

1.3 FSNI, from time to time, also procure services from FSS and other forensic suppliers in England & Wales in order to support our work, for reasons either of specialist capability in a specific forensic discipline or of lack of capacity at times of peak demand.

1.4 In the light of development in the market in England & Wales, FSNI’s status as a public body was thoroughly reviewed by the then NIO and subsequently the DOJ post devolution. It has been decided that the NI CJS is best served by retaining FSNI as an Executive Agency of the DOJ offering a local, responsive, integrated and comprehensive forensic science service.

2. FSNI’s general position on the Forensic marketplace

2.1 Given the above, FSNI is affected by Home Office Policy in relation to forensic science on a number of fronts, including the influence and role of ACPO in dictating operational forensic policy directly and via individual police forces. As the PSNI (our primary police customer) are members of ACPO, to whom the HO have given more or less free rein on forensic strategy, we have had to realign our entire product range to the ACPO definitions and thus mirror the procurement approach adopted in E&W in order to demonstrate value for money to our paying customer.

2.2 Whilst such an arrangement would seem eminently sensible in the case of a straightforward supplier-customer relationship, the reality is that there are two very different customers for any forensic science provider; the police, who want fast, low cost support to their investigation and the Courts, who are inherently cost-blind and want very robust, independent and objective expert witness in support of justice, whether that means conviction or acquittal for the accused.

2.3 We consider the marketisation approach in E&W to date to have created a real risk (already realised, as outlined in a recent letter from AFSP to the Minister) of the commoditisation of forensic services in the service of Policing rather than Policing & Justice. This approach has also encouraged the shrinking of the contestable market by the policy of in-housing of more and more forensic services by the police forces themselves. At the same time, ACPO has resisted the adoption of the quality standards (specifically ISO 17025;2005) which are the cornerstone of good forensic science and to which all the external providers (FSS included) operate.

2.4 A further negative effect of commoditisation has been the "fragmentation" of casework as different exhibits from the same crime are dispersed to multiple providers based on the apparent cost of a particular piece of work or product. This greatly impedes the overall forensic interpretation and planning, introduces additional points of failure in continuity and contamination control and compromises the ability to optimise the recovery of multiple evidence types from the same exhibit (known as forensic integration). An example of this is a mobile phone first sent to a small provider whose expertise is in data recovery from the phone memory will have any potential for DNA, fingerprint and fibre evidence destroyed because the phone specialist provider does not have the facilities or expertise to examine and recover multiple evidence types in a contamination controlled environment.

2.5 Only a few forensic providers (FSS and FSNI amongst them) have the ability to integrate forensic examinations across a wide range of specialisms. Breaking up FSS will likely damage or destroy this rare capability which is so important to the investigation of serious and complex cases including those related to national security.

2.6 The result has been an increasing risk of quality failures (e.g. emanating from police pre-screening evidence recovery units) with serious potential for the miscarriage of justice and the overall loss of UK’s capability and capacity in forensic science.

2.7 FSS, as the acknowledged world leader in Forensic Science, has stood as a guardian in many ways of the essential independence of forensic science and its role, not just in supporting policing but equally importantly in supporting the CPS and the Courts. AFSP members have noted with concern the lack of active involvement of the Ministry of Justice in ensuring the objectivity and quality of forensic science for the Courts as a counterbalance to the HO’s focus on Policing.

2.8 FSNI were ironically in the process of agreeing a very positive programme of R&D collaboration with FSS when we read with dismay (and without any prior warning to either FSNI or DOJ), the Home Office announcement of the plans to close FSS.

3. FSNI Response to the Consultation Questions

You have requested responses based on the terms of reference for the Committee and I will therefore address each point in turn.

3.1 What will be the impact of the closure of FSS on forensic science and on the future development of forensic science in the UK?

(a) The FSS have been in the lead internationally in the development of new Forensic Science techniques over the last number of years. This has been greatly facilitated by funding from the Home Office (HO), especially for example in DNA. The UK’s international reputation in this field will be seriously weakened by the loss of FSS who are major players in ENFSI, an organisation which is loath to permit membership of commercial providers because of its strong tradition of free and open sharing of technology and best practice in forensic science for the public good rather than for profit.

(b) It is with some re-assurance that I note that the House of Commons announced a forthcoming review of Research and Development in Forensic Science and hope that this will provide Ministers with advice on the current and likely future status of forensic science research and development in the UK. It is imperative that the same technology is available to all the Courts in each of the UK jurisdictions and not restricted to individual suppliers through patent protection or other intellectual property rights issues.

(c) I also note with concern attempts by the NPIA over the last year to control Forensic Science R&D centrally. R&D in forensic science is essentially the application of proven science from other areas into the forensic arena and therefore is best driven by the practitioners in response to their customers’ needs. Whilst coordination is essential, this must not be centralised control and vetting as currently envisaged. Neither ACPO nor NPIA are well placed to lead forensic R&D strategy but should instead restrict themselves to defining their future needs, rather than the solutions to them.

(d) The loss of FSS weakens the collaboration between the various providers on the vital issue of Quality, as they are the most significant provider of blind trials and collaborative exercises which we all regularly conduct between each other in AFSP (and ENFSI). These are essential and complex aspects of overall quality management in this field.

(e) The break-up of the FSS, as stated earlier greatly risks the loss of one of the very few "integrating" forensic providers, capable of optimising the sequential or parallel recovery of multiple evidence types from individual exhibits under controlled environments and within a bespoke case forensic strategy. The impact of this loss would principally become evident in serious, complex crimes including those involving national security, rape, murder, etc.

3.2 What will be the implications of the closure on the quality and impartiality of forensic evidence used in the Criminal Justice System?

(a) The impact largely depends on the status of Quality Accreditation which those organisations which absorb the work of the FSS have. If the work is taken in-house by police forces (an existing and accelerating trend) then there will, almost certainly, be a less rigorous approach to Quality accreditation. Indeed ACPO have been strongly resisting attempts by the Forensic Science Regulator to move rapidly to ISO 17025;2005 accreditation and seem content for some police forces to run some forensic services (including pre-screening of exhibits) out of unaccredited facilities or those accredited to the much less exacting ISO 9000 standard. Paradoxically the police themselves insist in their external procurement on ISO17025;2005 for all forensic providers. This is compounded by significant differences compared to providers in how the police calculate their own costs and assign fixed overheads (and warranted officers’ salaries). The impact this has on true cost comparisons, thus leads to an inequality of service quality which will inevitably increase the risk of prosecution failures or miscarriages of justice. (The CPS view of this should be sought, e.g. from Roger Coe-Salazar).

(b)The commercial supplier-customer perspective which the current market approach drives creates a significant risk where in the opinion of the forensic science provider some further work on exhibits is needed and/or further exhibits are considered necessary to arrive at a balanced and comprehensive evaluation of the overall evidence. It has been reported to AFSP that there have been several instances where the police, for reasons of cost have been reluctant to agree to this and that they cite as a reason their suspicions that the providers are only asking for more work in order to generate more profits. (In my experience this is not the motivation of the providers, which is rather to ensure their scientific objectivity and quality of expert witness.)

(c) Any existing commercial provider taking on former FSS capacity will most likely, only be interested in those areas which are profitable in the longer term. The design of the procurement strategy to date, as conducted by ACPO, militates strongly against long term investment by providers and therefore the serious risk emerges of reducing commercial provision in a highly imbalanced and unattractive market and its displacement to in-house police force provision under lower quality standards and an essentially non-scientific organisational ethos.

(d) It cannot be in the interests of civil liberties for police forces to be the main providers of their own forensic science services, given the absolute centrality within forensic science of objectivity, operational independence, scientific rigour and continuous improvement.

(e) I would refer the Committee to the 2009 US National Academy of Science’s report on Forensic science in that country and the dangers it highlights, inter alia, of direct police control of forensic science. I would also refer the Committee to recent EU directives in relation to the Prüm Treaty calling for interoperable quality standards across Europe to allow for the interchange of scientific forensic data, including DNA and fingerprints and to the United Nations resolution calling for the operational autonomy of forensic science provision in all member states.

(f) The public, and to a significant degree, it seems, some senior police officers, view forensic science as principally about tests conducted by laboratory scientists in order to arrive at certainty of opinion in support of an investigation. This implies is a misunderstanding of the totality of the subject. The tests and examinations firstly need to be chosen and designed (especially in serious or complex cases) with a great deal of contextual understanding and the results interpreted and evaluated with scientific and objective rigour and contextualisation by highly trained staff competent within the specialisms concerned in order to advise the Court. To do otherwise can run a very significant risk of misdirecting a jury, especially given the erroneous perception that lay people have of science as bringing certainty. FSS have been foremost in developing and maintaining such a rigorous approach to Expert Witness. If they are indeed to disappear, their successor providers must all adhere to the same rigour and standards.

3.3 What is the financial position of the FSS?

3.3 (a) I cannot comment on the financial position of FSS, except to say that the Government announcement of its impending closure cited it as losing £2m per month. This loss is in essence meaningless, as the decision to make FSS a profit centre (in contrast to other Criminal Justice Services, such as the Police, the CCRC, the CPS, Prisons, Probation Services, etc. which are not seen as profit centres) was an arbitrary one and is the sole reason why it could ever be said to be making a "loss". The funding for forensic science is essentially circular money granted to the police in order for them to procure services. This has lead to the inappropriate perception by policy makers and the police themselves that FSS is simply a provider to its customer, the police, rather than a key player across the CJS. (This perception is widespread and applies to providers other than FSS).

3.4 What is the state of, and prospects for, the forensics market in the UK, specifically whether the private sector can carry out the work currently done by the FSS and the volume and nature of the forensic work carried out by the police forces?

The attractiveness of the "market" is not high for most commercial providers, due to a number of factors:

a) The market is small at ca £250m p.a. and is being rapidly eroded in terms of both price and demand by the police strategy of in-housing.

b) The wider international commercial market is limited, as most countries view forensic science as a public service and not a commercial one. Ironically FSS was very well placed indeed to sell it services on behalf of the UK to foreign governments in support of their own developments in democracy, the rule of law and counter-terrorism.

c) The ACPO-led procurement approach to date has been poorly conceived and is driving commoditisation and price reduction and reducing the value added services, thus suppressing providers’ profit margins. Several are said to be considering exiting the market.

d) The contracts awarded by the police procurers are regionally "all or nothing" and run for typically 3 years. Given that it takes three years to build, equip, recruit and train specialist staff and have quality accredited a new forensic facility, this means that the incentive for a commercial provider to invest in new facilities (or indeed R&D) is very limited, as the regional contract could be lost at the next bidding round just as the new facility has come on–stream.

3.5 What are the alternatives to winding –down the FSS?

A retreat from the commercial model for the market is difficult, given the current state of play, but should none-the-less be considered. A review of the FSS to assess which sections are viable business areas and which are of central importance to UK as a whole should be conducted. It is likely that any prospective buyer will bid for the most attractive assets within the FSS. This means that other non-profit making services will be redundant but these may be the very ones that are essential for dealing with major complex cases or with national security. These could be retained within a core FSS facility, which also acts as the national FS coordinator, rather than the NPIA, for R&D. They could also take back in-house the custodianship of the national DNA database, as the NPIA is dissolved.

3.6 So far as they are known, are the arrangements for closing down the FSS making staff redundant and selling its assets adequate?

(a) Little is known within FSNI about the arrangements for disposal of the FSS assets or in relation to dealing with staff. All I can say is that morale is very poor in the FSS and there is a feeling across the entire forensic community that government has, over the last 5 years or so, profoundly failed to understand the nature and purpose of forensic science and has abdicated most of its responsibilities for it to the police and ACPO, whose perspective is (quite understandably) not a scientific one or even a justice-oriented one, but a policing one.

(b) Forensic science is increasingly involved in the complex analysis and interpretation of extremely small amounts of material (10-9 grams of DNA for example) and plays a pivotal role in serious crime and national security. It is, because of its sensitivity to contamination at such low thresholds, very dependent upon having a rigorous and organisationally pervasive quality management system to a standard such as ISO17025;2005. It requires objectivity and competence to be constantly tested by rigorous peer review and must be free in its evaluations for the Courts from conscious or unconscious bias as a result of any pressure from police investigators. It also requires state of the art facilities with strict environmental controls and a capital budget to allow for modern, high cost, analytical instrumentation. It needs highly trained and competent staff with a clear career path development from bench worker through to expert Court Reporting Officer. All of this requires stability and investment. It cannot survive a lack of clarity, a short term approach or a commoditisation mentality.

(c) The cost of forensic science is typically less than 1% of a total police force’s budget. Commoditisation may yield a small faction of that 1% in supposed savings but will generate much greater costs in aborted trials, failed prosecutions, appeals and community confidence.

(d) The future choices are therefore not just about FSS but the entire model for forensic science provision. If the direction of travel towards full commercialisation is irreversible, then at the very least there must be a fundamental review of the model so that it can sustain long term a viable and world class forensic science capability and capacity within the UK.

I am conscious that Forensic Science is a complex area, with often very different perspectives from within the various arms of the CJS. If I can be of any further use to the Committee in my capacity as the head of the only fully public sector forensic science provider (along with my Scottish equivalent), please do not hesitate to ask.

Stan Brown

Chief Executive

Forensic Science Northern Ireland

11 February 2011