Forensic Science Service

Written evidence submitted by Ian Kirkwood (FSS 67)

Who will be left to play cards?

1. Declaration of Interest. I am an employee of the Forensic Science Service, currently holding the post of Head of Policy and Criminal Justice Requirements within the Office of the Chief Scientist. Any views expressed in this submission are my personal views.

2. I joined the Central Research Establishment of the Forensic Science Service in Aldermaston, Berkshire on 28th October 1985. By 1987 I had taken up an operational role based at the Wetherby Laboratory in West Yorkshire. I was an operational forensic scientist until 2000, after which I took on a customer relationship management position. My present role includes [but is not limited to] responsibilities to the Criminal Cases Review Commission and to facilitate and manage post conviction enquiries from the individuals concerned, their families and their legal representatives.

3. I wish to focus on a single aspect within the terms of reference to this inquiry, specifically ‘What will be the implications of the closure of on the quality and impartiality of forensic evidence used in the criminal justice system’. My submission is in a narrative form which begins on the day I joined the Forensic Science Service and which ultimately, I believe demonstrates, the continued integrity and impartiality of forensic scientists employed by the Forensic Science Service for the greater good of the criminal justice system. It is my belief that undertaking something for the greater good will no longer be as prevalent, if indeed it is there at all, following the break up of the Forensic Science Service.

4. On the evening of 28th October 1985, Granada Television screened an investigative journalism programme called World in Action, which highlighted issues relating to the trial and subsequent conviction of a group of men known as the Birmingham Six. Their conviction in 1975 was based on confessions, circumstantial evidence and scientific findings. One of the issues given particular emphasis in the programme was the scientific findings relating to the swabbing of the hands of five men who had been stopped by Police in the North West, whilst travelling by train from Birmingham, on their way to Belfast. A forensic scientist had used the Griess test to determine whether or not these five individuals had handled explosives. Together with a sixth man, they had been collectively convicted of pub bombings in Birmingham on 21st November 1974, which killed twenty-one people and injured many more.

5. As a result of the television programme and the subsequent publication of Chris Mullin’s book ‘Error of Judgement,’ the campaign for the release of the Birmingham Six gained momentum. The Controller of the Forensic Science Service commissioned a review into the application of the Griess test. The five men, who had been stopped by the Police in November 1974, had been playing cards during their journey. The scientific experts consulted by the production team for the World In Action programme showed that swabbing the hands of individuals who had played cards, produced positive Griess test results, thereby calling into question the scientific findings presented at the trial.

6. So it was that very early in my career in the Forensic Science Service I was asked, together with others, to take part in experiments overseen by senior forensic scientists based at the Aldermaston laboratory. Ostensibly my contribution was minimal; I was to play cards for a couple of hours, after which time my hands and the hands of my fellow card players, would be swabbed. The report subsequently prepared by my senior colleagues showed that contact with a wide range of nitrocellulose containing products including nitrocellulose coated playing cards, can all give positive responses to the Griess test.

7. The case was referred back to the Court of Appeal in 1987; however, the appeal was dismissed. Despite this setback, the campaign continued and following the presentation of new evidence, including a further FSS review of the forensic evidence, the Home Secretary referred the case back to the Court of Appeal. On the 14th March 1991, the six men were released.

8. Thus one of my earliest memories from my twenty-five year career with the Forensic Science Service is of its scientists employing their collective knowledge, wisdom and experience to ensure that the best interests of justice were served. Throughout, these [former] colleagues demonstrated an unqualified level of commitment, application, integrity and impartiality.

9. The Forensic Science Service in this period was an integral part of the Home Office; there were no private suppliers of forensic science to the Police Service.

10. More recently, I was part of a specialist group formed within the Forensic Science Service to respond to legal and scientific challenges to the validity of the FSS method for DNA profiling Low Template DNA (method often known as LCN or Low copy Number) and its acceptance by the Courts within this jurisdiction. These challenges in the Crown Court and Appeal Court included extensive, protracted and complex third party disclosure actions. Again, these [current] colleagues demonstrated levels of dedication and tenacity, which ensured that the Courts were well placed to determine an appropriate course of action. This team aimed to ensure that the forensic scientists employed by the Forensic Science Service were provided with the necessary support to deal with the case specific issues and those more general issues beyond the ambit of the individual case issues were properly managed.

11. Since 2007 there have been a number of challenges to the validation, admissibility and acceptance by the courts in the United Kingdom. The first significant challenge occurred in the trial of Sean Hoey (Neutral Citation No. [2007] NICC 49);others include R v Stretch and Puttock (Crown Court Reference T20087351) and the co-joined cases in the Appeal Court R v Reed, Reed and Garmson (Neutral Citation Number: [2009] EWCA Crim 2698).

12. In the appeal R v Reed & Anor, the Appellants sought to challenge the scientific findings and also the admissibility and propriety of the opinion of the forensic scientist employed by the Forensic Science service. It was posited that the use of the Low Copy Number DNA method is not based on sufficiently robust scientific research, nor is it validated and that the science of Low Template DNA is uncertain and unreliable. Further grounds were developed relating to the interpretation of DNA mixtures and a general failure to disclose material. Furthermore, that the forensic scientist from the Forensic Science Service should have limited the scientific evidence presented at trial to the scientific findings and should merely have provided and explanation of transfer mechanisms to the court, rather than to have provided an opinion. The emphasis within the Appellants argument was that the forensic scientist from the Forensic Science Service was just wrong.

13. In this period, the Forensic Science Service was no longer an integral part of the Home Office and operated within a competitive environment.

14. Nevertheless those same levels of commitment, application, integrity and impartiality so evident in the past, remained. Indeed, it would be fair to say that the Forensic Science Service committed substantial resource to ensure that the collective wisdom, experience and knowledge of some of its leading operational scientists were released to devote their time, sometimes exclusively, to the task, without any expectation that the expense of doing so would be recovered. The work of the Forensic Science Service paved and eased the way for other providers to offer similar techniques. However it is posited that without the expertise of those scientists representing the Forensic Science Service that the outcomes and impact of these cases might have been very different for the criminal justice system. Indeed it is difficult to highlight any technique offered by another provider which has not followed in the vanguard of the Forensic Science Service.

15. I understand that the Forensic Science Service is currently working to ensure that its archive of case file records (estimated to comprise in the region of two million individual case files) and dry and frozen retained material (numbering many millions of individual items) will be a legacy for the future benefit of the criminal justice system. Without an archive which is readily accessible to those with a legitimate right, the risks to the criminal justice system are all too evident.

16. Given that there is no profit to be made from investing the necessary resource to meet to such scientific and legal challenges, I remain unconvinced that private enterprise would be prepared to encumber themselves with such tasks. In the absence of a body such as the Forensic Science Service, who will be there to protect the interests of forensic science and take on the responsibility for the greater good.

17. What is also almost certainly true is that once the Forensic Science Service is broken up and its integrated network of collective experience and wisdom is lost, it will be irretrievable.

18. Will there be organisation in the future that will be willing, or indeed able, to play cards when there is a need to do so, for the greater good?

Ian Kirkwood

14 February 2011