Forensic Science Service

Written evidence submitted by Dr Kevin Sullivan (FSS 61)

1 Summary

1.1 Winding-down and closure of the FSS by March 2012 risks reducing the quality of forensic science provision in England and Wales both now and in the future, with concomitant risks to the wider Criminal Justice System (CJS). The forensics market external to the police is in decline whilst in-sourcing by police forces is accelerating. Thus forensic science is migrating from the regulated high quality environment operated by the FSS and other accredited Forensic Science Providers (FSPs) to one which is both to a lower demonstrable quality standard and is excluded from competitive pressures to improve.

1.2 These risks exist because the Forensic Science Regulator (FSR) currently has no statutory powers to enforce quality standards, combined with the Home Office having failed to regulate a dysfunctional commercial market in which effectively a single customer is the sole budget-holder and also a major provider whose own costs for provision are not fully known.

1.3 Major concerns over actual, perceived and demonstrable impartiality of forensic science exist in an adversarial system where the police service are both intent on securing a conviction but also provide the evidence.

1.4 Loss of FSS R&D capability plus other commercially unattractive core functionalities will cause longer-term damage to the continued provision of effective forensic science within the UK. Despite the world-renowned reputation and track-record of FSS R&D for innovation and delivery, commercial companies are unlikely to be able to absorb this overhead in an increasingly competitive and shrinking commercial market. The most effective way to limit this damage is to move these activities back into the public sector, otherwise the UK world lead in this area will be lost, new types of forensic evidence will not become available to the CJS and some specialist forensic applications will cease to exist. In addition, capability to respond to continually evolving challenges to scientific evidence in courts would be degraded.

1.5 A transformation of the CJS beyond the FSS is required if forensic improvements are to be developed and applied effectively in our country once more. Currently there is little true collaboration, or alignment and integration of objectives between police, forensic science and the Crown Prosecution Service (CPS), which has led to excessive and detrimental delays in the introduction of new forensic techniques to the CJS.

2 Declaration of Interest

This submission is in the capacity of a private individual, but also from a position of some knowledge, with over 23 years of experience working within forensic science in the UK, including as Head of R&D, and latterly the Standards and Validation Manager, for the FSS. I am a member of the Quality Standards Specialist Group that advises the FSR on all matters pertaining to standards in forensic science, and have been closely involved in drafting the FSR’s Codes of Practice and Conduct.

3 Implications of the Closure on the Quality of Forensic Science Used in the Criminal Justice System

3.1 Why Quality Standards are Essential in Forensic Science

3.1.1 Forensic science is primarily concerned with taking all reasonable steps to minimise risk of error and avoid misleading an investigation or the courts. The investment required in establishing and maintaining a quality framework is considerable, typically adding 15-20% to overall costs.

3.1.2 Mistakes can and do happen even within laboratories accredited to international quality standards: no system in the world can prevent this from happening. However, what accreditation does provide is assurance that results have been generated using demonstrably reliable techniques utilised within a well-controlled process, which include accountability and mechanisms to ensure that should any faults occur these are identified and addressed to prevent recurrence thereby enabling continuous improvement in the quality of service provided.

3.2 UK Quality Standards for Forensic Science

3.2.1 There are 3 tiers to quality standards in the UK, comprising two international standards ISO9001 and ISO17025, plus the forthcoming Regulator’s Codes of Practice and Conduct.

3.2.2 The ISO9001 standard specifies requirements for a quality management system. It does not in itself demonstrate the competence of the laboratory to produce technically valid data and results.

3.2.3 The ISO17025 standard specifies general requirements for the competence of testing and calibration laboratories, and it is widely considered to be the most appropriate quality standard for forensic laboratories. Most FSPs are accredited to this standard because it is a stipulated requirement in police tenders for forensic science provision.

3.2.4 ISO17025 is ideal for controlling the quality of scientific testing but it does not encompass all the activities that are essential to the delivery of effective forensic science to the Criminal Justice System, in particular expert assessment and interpretation of evidence. To this end and in response to previous reviews criticising the lack of forensic standards in the UK, the FSR has drafted Codes of Practice and Conduct for forensic science providers and practitioners to the Criminal Justice System. This is a significant step forward in defining what is required from providers to the CJS at organisational, technical and practitioner levels. Version one will be issued in April 2011. Not included in this first version are all the detailed appendices intended to establish standards for specific areas of specialism which would include standards for casework interpretation e.g. of Low Copy Number DNA profiles.

3.3 FSS Quality

3.3.1 Following some high profile quality failures in the 1980s the FSS implemented accreditation to quality standards from 1993 onwards, a world first for forensic science. The present FSS in-house quality framework goes well beyond the basic requirements of ISO17025 and is in close accord with the FSR’s forthcoming Codes. Indeed, before closure was announced the FSS were planning to act as a test-bed for compliance to this code later this year.

3.3.2 The FSS quality framework also includes standards for casework assessment and interpretation that are essential for provision of robust forensic science to the CJS, but are not yet present in the FSR’s Codes.

3.4 Police Progress Towards Working to Quality Standards

3.4.1 The ISO9001 Standard is met in part by the police. ACPO had intended to bring all police science up to this basic standard by 2013. However following a gap analysis conducted in 2010 this target has now been dropped due to budgetary pressures. Instead the goal has changed to moving directly to ISO17025 accreditation.

3.4.2 Progress towards accreditation of police science to ISO17025 has been variable and timelines are slipping significantly. To date virtually no police forensic science is conducted to this quality standard which is in stark contrast with traditional FSPs. The only force to date to achieve this is the Metropolitan Police for some of their scientific work at their Amelia Street site but this represents only a very small fraction of their total scientific activity. ACPO aim to rectify this situation and have stated that forensic science taken back in-house from FSPs should be accredited to ISO17025, but in reality budgetary and time constraints mean that only a small fraction of their science will be accredited by the FSS closure date and it will be a number of years before all police science could achieve ISO17025 accreditation let alone compliance with the FSR’s Codes, and this is assuming that this policy is vigorously followed.

3.4.3 ACPO announced in Jan 2010 that a project had commenced within the NPIA- run Forensics 21 programme to implement quality standards for police forensic science. The aim was to achieve accreditation to ISO 17025 by March 2013 but just for the enhancement stage of fingerprint analysis. A year later the deadline has been extended by two and a half years to November 2015. This slippage indicates that the timelines are driven by statutory compliance with an EU framework decision rather than adherence to the Forensic Science Regulator’s requirements which is on a voluntary basis.

3.5 Issues with In-Sourced Forensic Science

3.5.1 Presently the external forensics market is declining significantly whilst in-sourcing by police forces of forensic work is accelerating. Thus work transferred from external suppliers to the in-sourced capability that the police are creating, will move from a regulated quality environment accredited to ISO17025 and for which high levels of assurance can be provided to stakeholders, to one which is both to a lower demonstrable quality standard and is excluded from competitive pressures to improve.

3.5.2 Regrettably a number of quality failures have been identified recently arising in police forensic science, including the practice pre-screening items to cut costs. These have been raised with the minister and require thorough investigation by an experienced and independent forensic scientist rather than by the police themselves to demonstrate impartiality. A fear with compromising quality of processes is that problems do not necessarily come to light until a long time after the change, so the consequences can be far-reaching.

3.5.3 The FSR does not have statutory power to enforce compliance with standards. Police compliance with ISO17025 and the FSR’s Codes of Practice and Conduct is the single key issue on which regulation of standards for forensic science in the UK will succeed or fail.

3.5.4 There is a significant risk of scientific techniques undertaken by the police being successfully challenged in the courts on the grounds that they do not meet recognised standards of quality. For example an emerging battleground within the courts is the validity of techniques. Validation is an element of ISO17025 and is a key component of the FSR’s Codes. Therefore whilst there can be confidence that accredited techniques have been subject to independent scrutiny by an expert UKAS assessor, no such assurance exists for the vast majority of police science and it is unclear whether the validation evidence they may have is sufficiently robust to withstand the degree of challenge to which, for example, certain DNA techniques were recently subjected, and withstood, in our courts.

4 Impartiality

4.1 Further concerns centre on ensuring impartiality of forensic science, and demonstrating this to be the case. A recent far-ranging and critical review of forensic science in the US conducted by their National Academy of Sciences recommended that forensic provision should be demonstrably separated from police processes.

4.2 This was recently expressed in forthright terms by Robert McFarland in a letter published in The Guardian newspaper on 13.1.11. McFarland led an independent review of the FSS in 2002-3 which prompted the change in status to a Government Company. In his letter he is supportive of the wind-down of the FSS but also expresses worries regarding police forensic experts appearing as court witnesses, and ensuring impartiality is maintained as a result, given that in an adversarial system the police service are intent on securing a conviction. Therefore, even if measures are taken to help prevent this situation the public perception is always likely to be that lack of impartiality remains.

5 Impact of the Closure of the FSS on the Future Development of UK Forensic Science

5.1 Police tenders in recent years have focussed overwhelmingly on getting the cheapest deal, leaving no margin for and giving no incentive to organisations to invest in R&D – work which is required if forensic science is to develop and progress for the future. The FSS are and have been for decades the key provider of forensic R&D and new groundbreaking techniques in the UK, and a major contributor on a global scale of which our country can be justifiably proud. It has also been pre-eminent in the development and improvement of standards for forensic science worldwide. It is imperative that this work is allowed to continue, but no other organisation in the UK has the capability to do so: the research councils do not fund forensic research, declaring quite correctly that it should be directly funded by government; university departments lack the in-depth experience of taking ideas through from concept to a rugged and validated process that can withstand the rigors of our adversarial judicial process; police labs lack both the necessary environment and the critical mass of research staff required to undertake substantial research projects; there is no government research capability in this area, the closest being the Home Office Police Scientific Development Branch which has zero DNA capability or experience.

5.2 No other country in the world has attempted to meet its forensic requirements on a purely commercial basis, not even in the USA where commercial laboratories have been established the longest: the Americans have always recognised that the long-term health and viability of their CJS is reliant on state-owned provision to cover complex and commercially unattractive elements of the whole forensic offering that commercial companies cannot provide, which includes core R&D activities development and maintenance of forensic databases and standards which are provided by centrally funded Federal Laboratories and Agencies.

6 Alternatives to Winding Down the Entire Forensic Science Service

6.1 It is accepted that a fundamental shake-up of the FSS is necessary (indeed this was already well advanced), and that the quality of some simple commoditised forensic services need not suffer unduly provided that standards are rigorously enforced. However, this simply does not hold true for the more complex forensic work, and certain core non-fee earning capabilities need to be retained if long-term damage to forensic capability and development in the UK is to be avoided. This would include for example, R&D, expertise in violent and sexual crime casework, drugs intelligence, standards and validation, training, and maintenance of a national archive to service appeals queries and cold case reviews. A potential solution would be to slim down the FSS by divesting the commoditised components of its current portfolio but retaining the core capabilities plus the R&D unit within the public sector.

6.2 There is strong case to be made for maintaining the existing R&D team under a centrally funded umbrella to safeguard the future health of UK forensic science. This group has the expertise, critical mass and cross-functional skills necessary to deliver substantial technical improvements to forensic provision. Decisive and early action is required if this is to be preserved, otherwise the key resource which is the highly skilled workforce will inevitably be dissipated as these experts move elsewhere due to impending job losses. Much of the work undertaken by this unit is already of benefit to forensic science rather than just the FSS. Many of their innovations if made generally available rather than being kept in-house would improve the quality and efficiency of forensic science nationally and increase resilience to evolving challenges within the judicial system. This approach is a well-established practice by the FBI in the USA.

6.3 Breaking up the FSS will not solve major underlying problems with provision of forensic science in the CJS. A shake up beyond the FSS is required if essential improvements are to be developed and applied effectively in our country once more: true collaboration, alignment and integration of objectives between police, forensic science and the CPS simply is not happening at present, which has led to excessive and detrimental delays in the introduction of new forensic techniques to the CJS. The underlying causes need to be addressed as a matter of urgency.

6.4 Moving FSS R&D and related activities back within the public sector would help break down the present operational and political barriers that have made bringing innovation to the forensic marketplace virtually impossible since the FSS became a Government Company. Re-positioning FSS R&D and associated activities back within the Home Office Science and Research Group would provide synergies with the work already undertaken and with virtually no overlap: aside from huge expertise in forensic DNA analysis, other strengths of the FSS unit include extensive software development and statistical capabilities. For example, ground-breaking software has been developed by the FSS to provide a probabilistic approach to evaluating the strength of fingerprint evidence. This may prove to be critical in our country’s response to criticisms in the imminent Scottish Fingerprint Inquiry Report regarding the lack of demonstrable scientific rigor in our current national approach to presenting fingerprint evidence in the courts.

6.5 There are also significant benefits in re-establishing close links between the National DNA Database (NDNAD) and FSS R&D regardless of where the former ultimately resides following the closure of the NPIA in March 2012. This alignment would provide the vision, technical knowledge and project management skills to transform this national service back into the world-leader it once was before the link to R&D was severed some years ago when the FSS became a Government Company. Geographic synergies could be exploited to improve integration and facilitate faster development simply by physical co-location of related groups: the Forensic Regulator’s unit, the National DNA Database staff both based in Birmingham, could easily be co-located in purpose-built lab facilities at the FSS Trident Court site currently housing the FSS R&D unit.

7 Conclusions

7.1 It is my firm belief that the following actions are required if we are to safeguard the quality of forensic science provision in the UK both now and in the future:

· Enforce through statute accreditation to ISO17025 and the FSR’s Codes of Practice and Conduct for all forensic science in the UK regardless of whether this is by FSPs, police or defence scientists.

· Undertake a review of police in-sourcing of forensic science with regard to quality, impartiality and cost effectiveness compared with traditional FSPs. This should include investigation of the underlying causes of recently identified police scientific quality failures. This should be conducted by an independent and experienced forensic scientist to avoid conflict of interest.

· Move FSS R&D plus other core activities back into the public sector. This is urgently required if capability is not to be degraded through staff losses in the current climate of imminent closure.

· Undertake an independent review of the forensic marketplace and promulgate a revised structure in which supporting the long-term integrity of forensic provision in the CJS is of primary importance rather than just minimising costs.

· Undertake an independent review to identify and subsequently remove the key blockages to bringing forensic innovation to the marketplace.

Dr Kevin Sullivan BSc, PhD

13 February 2011