House of Commons - The Forensic Science Service - Science and Technology Committee

The Forensic Science Service - Science and Technology Committee Contents

3 Private and police forensic science provision

93. A key part of our inquiry into the closure of the Forensic Science Service (FSS) was to examine the capabilities and suitability of alternative forensic science providers, now and in a post-FSS world. We looked at the two main alternatives: private forensic science providers (FSPs) and the police. In this chapter we have looked at forensic service provision to the police and criminal justice customers. Research and development issues are addressed in the next chapter.

Quality standards

94. The Crown Prosecution Service (CPS) explained the importance of standards in forensic science:

It is [...] imperative that the highest possible standards are maintained by the suppliers of forensic services including proper resourcing, training, equipment, processes and integrity benchmarks such as accreditation. Unless these standards are followed, those guilty of crime may escape justice or innocent persons could be convicted.[126]

95. Quality standards in forensic science are ideally achieved through accreditation to the international standard ISO 17025 (General requirements for the competence of testing and calibration laboratories), which builds on the older ISO 9001 standard. The Forensic Science Regulator (FSR) is a public appointee whose function is to ensure that the provision of forensic science services across the criminal justice system is subject to an appropriate regime of scientific quality standards.[127] The first and current FSR, Andrew Rennison, took up his post in February 2008.[128] Mr Rennison explained that ISO 17025 assesses:

a whole range of things, but these are the four cornerstones that are vital for me. First, that it assesses the organisational competence: "As an organisation, from the top level, do you take quality seriously? Does that filter down through? Do you build a good quality culture?" That is absolutely vital. We have missed a key point in the past by focusing on the individual scientist because a good scientist could work in a poor quality culture producing poor science.

Secondly, it assesses the competence of the individuals. It has been slightly weak in that area so we are bolstering that through the implementation of the Integrated Competency Framework developed by Skills for Justice, and the police and the commercial labs have bought into that.

Thirdly, it assesses, importantly, the validity of methods. It sets requirements around validity so when UKAS—the United Kingdom Accreditation Service—do their assessments they will want to see clear evidence that you have tested and validated your methods. In my codes of practice [...] we have expanded on that quite significantly because we think that validation has got to be well and truly pinned down.

Fourthly, it assesses objectivity and impartiality. The standard demands that the laboratory is autonomous and is able to deliver impartial and objective opinion evidence.[129]

96. However, ISO 17025 does not guarantee quality, as Dr Gill Tully, Research and Development Manager at the FSS pointed out:

although ISO 17025 is necessary, it is not sufficient to ensure quality because it is very much a standard that is around laboratory testing. It does not really cover issues like setting the forensic strategy for a case, working out which items to examine and which not. It certainly does not cover the complex interpretation of the results and the presentation of the evidence in court. It is part of a wider framework that is not in place and is certainly not in place as a standard across all laboratories.[130]

PRIVATE FORENSIC SCIENCE PROVIDERS

97. All forensic work tendered under the National Forensic Framework Agreement (NFFA) must be accredited to ISO 17025.[131] The Government explained in its written submission that:

The leading private sector forensic science laboratories on the procurement framework work to demanding quality standards and are accredited against ISO/IEC 17025 (General requirements for the competence of testing and calibration laboratories) by UKAS. Companies that are not accredited are expected to achieve accreditation if they undertake work for the police.[132]

98. The scope of accreditation can vary across private FSPs. LGC Forensics, for example, told us that they were accredited "for 87 methods across 6 laboratories covering the full range of forensic disciplines. This extensive scope of accreditation is amongst the broadest in the world".[133] On the other hand, the CPS stated that:

None of the suppliers are United Kingdom Accreditation Service (UKAS) ISO accredited in all forensic disciplines, and thus can only take on a limited range of forensic work. The suppliers would need to work towards accreditation in new disciplines to take on some of the current work carried out by the FSS. By way of example, the FSS are thought to be currently the only supplier offering a Crime Scene Investigator service as well as certain specialised drugs analyses. Gaining accreditation in these fields is a time consuming and potentially expensive process and the appetite of the suppliers to undertake this exercise is not yet known.[134]

99. The Natural History Museum highlighted the risks posed by smaller unaccredited FSPs taking on more forensic work:

the FSS has an extremely high quality of service and accreditation, for example, adherence to ISO standards. Some of the alternative forensic providers have similar high standards, but smaller providers might not be able to match those standards, especially if they try to take on the opened market in a poorly prepared state, and it is likely that overall standards would fall.[135]

100. In the transition period to 2012, the Government must ensure that none of the FSS's work is transferred to a private forensic science provider that has not achieved accreditation to ISO 17025.

POLICE FORENSIC LABORATORIES

101. The concerns expressed over forensic science carried out by private companies, which are accredited for the services provided to police forces through the procurement framework, were mild compared to the almost unanimous alarm articulated over forensic science in unaccredited police laboratories. For example, Key Forensic Science Services considered that:

there is a low risk to impartiality or quality if forensic science continues to be delivered by high quality, accredited unbiased, impartial and independent forensic science providers.

The real risk is with police in-sourcing, i.e. carrying out forensic science activities for themselves in uncontrolled, non-accredited laboratories, which presents a very real risk to the quality of forensic analysis produced.[136]

Dr Steven Baker, a long serving employee of the FSS, stated:

Currently virtually no forensic work, and none of the limited forensic research done by police forces is accredited to recognised quality standards [...] Such forensic research within police forces is likely to be to a lower quality standard and this will take longer than March 2012 to rectify. This increases the risk of both miscarriages of justice and of forensic evidence being successfully challenged in the courts where the validity of scientific techniques is being ever more vigorously scrutinised.[137]

102. As already noted, all FSPs providing services for the police must be accredited to ISO 17025—this is a requirement under the current procurement strategy. However, police in-house forensic services are currently not subject to the same requirement. The paradox was highlighted by several of those who provided written submissions—for example, the Forensic Science Northern Ireland (FSNI).[138] The FSS highlighted the financial consequences of the disparity on their business:

FSS invests more than 15% of its cost base in maintaining an accredited quality system. Police labs and small FSPs not compliant with ISO17025 do not incur this cost and have a significant cost advantage in a market where price is the dominant factor in contract award.[139]

The Forensics21 programme

103. In April 2008 the National Policing Improvement Agency (NPIA), in partnership with the Association of Chief Police Officers (ACPO), launched the Forensics21 programme, an overarching programme of work aimed at "creating a police-led forensic service".[140] The programme completed Phase 1 in March 2010 and projects included the successful transition of the National DNA Database from the FSS to the NPIA and the development of a national footwear reference collection.[141]

104. Mr Rennison, the Forensic Science Regulator (FSR), explained the requirements underpinning the Forensics21 programme's ambitions for police laboratory accreditation:

In November 2009 the EU Council agreed a Framework Decision requiring all DNA and fingerprint laboratories (whether they be government, commercial or police laboratories) to be accredited against the ISO/IEC 17025 standard by 2013 and 2105 respectively. All the UK laboratories undertaking forensic DNA analysis for the police currently comply with this accreditation requirement. The initial focus for police forces is on their fingerprint enhancement laboratories in order to achieve compliance with the Framework Decision, some forces already wish to include wider laboratory functions.[142]

105. There was some scepticism over the feasibility of the accreditation deadlines. For example, the FSS stated that "there is no clear commitment from all police forces to meet these standards given the associated costs"[143] and Dr Kevin Sullivan, Standards and Validation Manager, FSS, stated that:

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 [...] 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 [...]

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.[144]

106. Mr Rennison explained that in addition to the Metropolitan Police Service (MPS), which had been accredited to ISO17025 for an in-house trace evidence recovery laboratory:[145]

Greater Manchester police [GMP] now have a laboratory working to that standard for the examination of firearms. West Midlands police have a laboratory to that standard for the examination of firearms. Derbyshire police have a laboratory accredited for evidence recovery. I know of three other police forces going through the application process at the moment. The current situation in policing is that many police forces are actively looking at collaboration agreements in the provision of forensic science, which I think is exactly the right way forward. I am now very closely engaged with those collaboration projects where I can be. For example, I sit on the project board of East Midlands police. They actively want to pursue application for ISO 17025 for their combined laboratories. The same in the north-west is led by GMP in Cheshire—Cheshire have applied for accreditation for their laboratory—and the same in the Yorkshire forces as well, where they are combining.[146]

107. We had concerns about the Government's intended deadline of 2012 for the wind-down of the FSS and the transfer of the FSS's work to non-accredited environments, because of the risks to continuity in criminal cases. A transfer could potentially lead to the forensic evidence being challenged in court. We sought reassurances from the FSR and Minister that no such transfer would take place. The FSR told us that:

The most obvious risk to me in the closure of the FSS is the risk of taking work out of the FSS accredited environment. There is no doubt that the Forensic Science Service, since 1991, has led the world on the development of quality standards. They now have, by far, the broadest "scope of accreditation", which is the number of methods they cover in their accreditation. There is a real risk of taking work out of that broad scope of accreditation into a non-accredited environment. The way I describe that risk is that, in the accredited environment, you manage the risk of quality failings. You don't eliminate it. You manage it down to low risk. You can't inoculate against failures but you can manage the risk very aggressively.

If we take it out of that accredited environment to a non-accredited environment, the risk of something going wrong, I think, rises to very high. In the current environment you have a low risk but the impact is always high. You can never manage that impact down. The impact of a quality failing will always remain high. If you then take that work into a non-accredited environment, the risk shoots to high but the impact becomes very high because you haven't got a leg to stand on, quite simply. I have written to ACPO, the NPIA and to the Home Office making that risk very clear. The result of that is agreements that the work will be moved to similarly accredited environments.[147]

108. When asked whether he was confident that all of the FSS's current work would be transferred to fully accredited providers by the deadline of 2012, the Minister replied that he was "confident that the deadline of 2012 can be achieved and that it can be undertaken in a way that does give the necessary assurance".[148] When pressed further he stated that:

In terms of the work that is engaged at the moment, we are focused on the National Forensic Framework Agreement and the potential for asset sales. Obviously, some work may go to the police internally. My strong intention and desire is that that should give assurance and be robust in terms of the way in which this is delivered. There is no reason to suggest that will not happen.[149]

109. We have serious concerns about the potential transfer of the FSS's work to non-accredited police laboratories. We agree with the FSR that the transfer of work from the FSS to a non-accredited police environment would be highly undesirable, as this would pose significant and unacceptable risks to criminal justice. If a sufficient match in quality standards cannot be met elsewhere, the Government should, at the least, reconsider the 2012 closure deadline. The needs of criminal justice must come before considerations of financial convenience.

Impartiality and independence

110. In order to achieve accreditation to the quality standard ISO 17025, there is a requirement for a laboratory to demonstrate evidence that its work and results are "free from undue influence or pressure from customers or other interested parties" and that "laboratories working within larger organisations where influence could be applied (such as police laboratories), are free from such influence and are producing objective and valid results".[150]

111. The requirement for impartiality also extends to expert witnesses giving evidence in court. The criminal procedure rules, laid down by Lord Justice Auld following his Review of the Criminal Courts in 2001, specify that the expert's duty to the court overrides "any obligation to the person [...] by whom he is paid".[151]

112. The FSR produced draft Codes of Practice and Conduct for forensic science providers and practitioners in the Criminal Justice System in the summer of 2010 and produced a "pre 'dry-run' draft" document in February 2011: this document is intended to be used by the UK Accreditation Service (UKAS) to conduct dry runs of the accreditation process in existing ISO 17025 forensic science providers, with a formal, published code expected in summer 2011. The Code builds on ISO 17025 and outlines expectations of forensic practitioners with regards to independence, impartiality and integrity.[152]The Code suggests that forensic science practitioners' "overriding duty is to the court and to the administration of justice" and that they must "act with honesty, integrity, objectivity, impartiality and declare any personal interest that could be perceived as a conflict of interest".[153]

PRIVATE FORENSIC SCIENCE PROVIDERS

113. The accreditation of private sector laboratories was explored in paragraph 97. We heard some concerns that private providers may be inappropriately driven by profit (see paragraph 23). In rejoinder, Key Forensics, a private FSP, stated that:

There is often an inferred suggestion private forensic service providers are not as impartial as the FSS—a public funded service provider, the private service providers made vulnerable by the requirement to retain clients and generate a profit and thus being subject to coercion by their clients. The reality is that the FSS has been operating as a self financing organisation, generating "fees" for its casework from its clients, on the same basis and under the same financial pressures as the private service providers. To this extent, "risk" of impartiality is thus no greater for private service providers than it was for the FSS. In practice, no private service provider would risk its reputation and, therefore, its future viability for a short term gain that would be lost many times over should such an occurrence ever become public. Similarly, forensic evidence is ultimately provided by forensic experts acting as expert witnesses, whose own careers and integrity rest on what they offer as their opinion. Many of private sector forensic scientists have been carefully selected as the best in their field, and as such display no less integrity than their public sector counterparts, who will also be subject to coercion for any number of reasons, not least to maintain their department's budget. In our opinion there is a low risk to impartiality or quality if forensic science continues to be delivered by high quality, accredited unbiased, impartial and independent forensic science providers.[154]

114. We have seen no evidence to suggest that private forensic science providers would be less impartial than the FSS, but they must be accredited to at least the same standards.

POLICE FORENSIC LABORATORIES

115. The concerns expressed over the lack of accreditation of police laboratories have already been described above. An additional consideration regarding impartiality, which does not apply to the private sector, is the complication of the police acting as both the customer and provider of forensic services where in-sourcing occurs. The FSS stated that:

Forensic science has to be impartial, and to be seen to be impartial. This issue was raised in a recent critical review of forensic science in the US, in which it was recommended that forensic provision should be separated from police processes. Whilst mechanisms can be put in place to help safeguard impartiality from being compromised, the risk remains higher for undue pressure to be placed on scientists if they work within the same organisation as the "customer".[155]

116. Dr Mark Mastaglio, the FSS Principal Scientist for firearms related casework, pointed out that the police could also be the subject of an investigation:

Some of most complex and sensitive work that require firearms forensic science input are the investigation of police fatal shootings and counter terrorist cases. In these areas the FSS staff are the most experienced in the country [...] The fatal shooting of Jean Charles de Menezes by police officers in 2005 provides an exemplar of why we need top class firearms examiners competent in scene reconstruction and wound ballistic interpretation that are totally independent of the police.[156]

117. The FSS's London Toxicology team explained that the Metropolitan Police Forensic Science Laboratory had been merged with the FSS in 1995 because of fears concerning impartiality, and stated "here we are, 16 years later, with such concerns apparently being cast to the wind. Many police forces are now setting up forensic services to a varying extent. Most of this appears to be unregulated."[157]The Northumbria University Centre for Forensic Science considered that, although the FSS was never impartial since "its business was undertaken on behalf of the prosecution", it was "more independent of the police services than the police laboratories had been. It was established to increase scientific and procedural independence".[158] Prospect stated that:

Ministers appear not to have given consideration to how having the police procure and host their own services could have implications for impartiality as well as to public perception of the criminal justice system. Neither is it evident that any thought has been given to the reasons that led to the UK's forensic science service being provided by an expert organisation independent of the police.[159]

118. We also considered whether impartiality of police forensic science could be compromised by the need to make savings. The Forensic Science Society, the professional body for forensic practitioners, considered that "constraints on the extent of a scientific investigation for financial reasons are far more likely to result in a biased interpretation".[160] The Royal Society of Chemistry stated that:

Impartiality of data providers could be compromised. Spending cuts mean police forces have less money to spend on forensics consultancy and are taking this work in house. Police forces have advised that their spend on external forensic suppliers will continue to fall as forces seek to maximise efficiencies. This may mean that there will be pressure to cut corners leading to unsafe prosecutions.[161]

119. Gary Pugh, Director of Forensic Service, Metropolitan Police Service, took a different view:

There is no reason to believe, or evidence to support a view, that the closure of the FSS will adversely affect the impartiality of forensic evidence used in the criminal justice system. It is suggested that "forensic science for profit" and the commercialising forensic science could undermine the impartiality of forensic evidence and on the other hand work undertaken by police forces would only consider a prosecution view. I have seen no evidence of either of these views, forensic practitioners wherever they work realise that, as the Criminal Procedure Rules set out, their overriding duty is to the courts. [...] The safeguards for the impartiality of forensic science lie within the Regulator's Codes of Practice and Conduct.[162]

120. We asked the Mr Rennison, the FSR, whether forensic laboratories should be independent of the police and he stated that:

I don't think that is necessary. A very good review is the recent Law Commission review around the admissibility of expert evidence, which was published two months ago. They have a very interesting section devoted to this issue of impartiality of expert witnesses—not specifically police experts, but experts across the piece, and in one paragraph they actually quote the police. They point out, quite rightly, that there are very few reported cases where impartiality has been an issue. They are recommending changes to the law built on an assumption that experts, and they include police experts in this, are impartial and understand their responsibilities to the court, which are very clearly set out now in the Criminal Procedure Rules. The evidence to date is that impartiality is not a massive problem in the criminal justice system, but I want to underpin that through accreditation.[163]

121. On 22 March 2011, the Law Commission published Expert Evidence in Criminal Proceedings. The report contains the Law Commission's recommendations and a draft Criminal Evidence (Experts) Bill. The Law Commission's recommendations are being considered by the Government. The draft bill builds on existing criminal procedure which states that:

(1) An expert has a duty to the court to give objective and unbiased expert evidence for the purpose of criminal proceedings.

(2) That duty overrides any obligation to the person from whom the expert receives instructions or by whom the expert is paid.[164]

And suggests additional clauses:

(3) If it appears to the court that there is a significant risk that the expert will not comply (or has not complied) with that duty in connection with the proceedings, the expert evidence is not admissible unless the court is satisfied that it is in the interests of justice that it should be admitted.

(4) The fact that the expert has an association (for example, an employment relationship) which could make a reasonable observer think that the expert might not comply with that duty does not in itself demonstrate a significant risk.

(5) Criminal Procedure Rules may make further provision in connection with that duty.[165]

122. The report stated that "the mere appearance of bias is an insufficient reason for ruling that an expert's evidence is inadmissible in criminal proceedings".[166] Roger Coe Salazar, Chief Crown Prosecutor, Crown Prosecution Service, considered that:

you have to differentiate between impartiality or bias and the appearance of it. Certainly, for the criminal justice system, the appearance of impartiality is fundamental and very important. [...] We do have to bear in mind the X millions of cases over the years that have been prosecuted—I know there are high profile examples to the contrary—without root and branch issues around bias and impartiality. [...It] is not the panacea to everything, but accreditation does help considerably, because one of the fundamental parts of accreditation is a truly independent assessment. One of the four foundation points of that accreditation is to do with independence and being free of any undue influence.[167]

If we take the view that that forensic evidence, for whatever reason, is not properly impartial, or of proper integrity and has not been properly validated as a science, we won't use it.[168]

Mr Rennison, the FSR, explained that:

There is a risk to quality and impartiality if [the FSS's] work is moved from an accredited quality focused environment to one lacking such standards. I have written to the police lead on the transition of work and to the Home Office FSS Transition Board (of which I am a member) pointing out these risks and making it clear that packages of work should only be moved following an assessment of risks to quality and impartiality in each case. It is an unacceptable risk to move work to a non-accredited environment, but with varying and possibly manageable levels of risk if work is taken on by an accredited laboratory but possibly without some items of work within its scope of accreditation. However, there will have to be an agreed action plan to achieve the required extension of scope to bring the work within the accreditation for that laboratory.[169]

123. No quality standard or code of conduct can guarantee impartiality. However, we consider that adherence to ISO 17025 and the Codes of Conduct being developed by the Forensic Science Regulator would be a good place for police forensic laboratories to start. Compliance with ISO 17025 is already planned, albeit on a generous timetable. We recommend that existing police forensic labs also commit to the FSR's Codes of Conduct.

124. We agree that a nebulous fear or perception of impartiality is insufficient reason to condemn police in-sourcing of forensics, although the perception of impartiality is crucial to the courts and public confidence in the criminal justice system. However, given that so few police forensic laboratories have been accredited to ISO 17025, a standard that demands a level of impartiality, we must express concerns about the risks to impartiality of forensic evidence produced by non-accredited police laboratories. We reiterate our previous recommendation that if the FSS closes, transfer of work from the FSS to a non-accredited police environment would be highly undesirable.

125. The introduction of bias based on selective forensic examination of exhibits, arising from the need to make savings is a different risk. We are concerned that the risk may be exacerbated by recent cuts to police budgets and we urge the Government to monitor the situation. Police forces must work closely with forensic science providers to ensure that any selectivity is scientifically justified.

Powers of the Forensic Science Regulator

126. The Forensic Science Regulator (FSR) was appointed to ensure that forensic science provision to the criminal justice system met scientific quality standards.[170] However, the FSR does not have statutory powers to enforce compliance. The FSS explained that:

The role of the Forensic Science Regulator (FSR) is to establish and monitor compliance with quality standards for forensic science delivery to the police and wider criminal justice system. Since taking office in 2008, the current FSR has established a regulatory framework for the UK. This is based on a set of standards planned for issue in April (2011); full implementation was originally planned for December 2013. However, the Regulator does not have statutory leverage for enforcing compliance with the standard.

[...] With the exception of providing DNA profiles for the [National DNA Database], there are no statutory requirements for science used within the [criminal justice system] to be compliant with any standards so the regulatory framework remains effectively voluntary.[171]

127. Andrew Rennison, the FSR, stated in his February 2011 written submission that:

Discussions at the Forensic Science Advisory Council[172] have led to agreements that compliance with the Codes should be based on a mandatory but non-statutory requirement enforced through police contracts, agreements with ACPO and gate keeping functions by the Crown Prosecution Service.

It is a common and often repeated assertion that compliance with the Codes should become a statutory requirement, to do so has not been necessary to date but is kept under review to be referred to Ministers should it become so.[173]

However, when Mr Rennison gave oral evidence in April 2011, he explained that he had changed his view:

During the research phase leading up to the development of my role, Home Office officials spoke to many regulators and said, "What sort of regulatory model should we have?" The overwhelming recommendation from that was, "Avoid some sort of statutory model, if you can, because it tends to restrain you." [...] The recommendation at the time was to go for light-touch regulation but with the regulator having the freedom to move into areas that he or she saw fit. I enjoy that freedom at the moment. [...]

However, I am now reaching the conclusion that we have to seriously consider some sort of statutory underpinning of my role and some powers to mandate standards. Now that we have developed and consulted widely on the standards, it is entirely appropriate to consider whether we should be mandating those—bolstering the European regulations and translating that into domestic law with some sort of domestic powers to mandate standards[...]

The model [the Home Office is] developing for the regulation of CCTV in the Protection of Freedoms Bill is giving some very good pointers, I think, to the model I should work to. You appoint a regulator, so there is a statutory underpinning of the role, you ask the regulator to produce codes of practice and conduct that, if required, can be agreed by Parliament and are then published by the Secretary of State—you go through that consultation process—and you list in there the people who have to have regard to those standards. You don't need to take it any further than that. That is now an active discussion.[174]

I wrote that submission after the announcement of the closure, and at that time—this is how fast things are moving at the moment—I was quite content with not having statutory powers. I have changed my mind since then because, as I engage more and more with some police forces and others, I am beginning to realise the need to have more muscle behind me to enforce some of this. I have to confess that I have changed my mind slightly since I gave you that written submission.[175]

128. We asked James Brokenshire MP, Parliamentary Under-Secretary of State for Crime Prevention, whether it was time for the FSR to have statutory powers to enforce compliance with quality standards. He responded:

It is something that I am certainly prepared to consider. The Forensics Regulator has operated, to date, without statutory authorisation and has operated very effectively in that way. But it is something I am prepared to consider if Mr Rennison feels he is not able or is coming up with issues in terms of his ability to deliver on his requirements in relation to standards and quality and giving the assurance that we want him to give.[176]

129. The Forensic Science Regulator (FSR) has a crucial role in ensuring high quality standards are maintained, and this role will become more important during the transition period. It is time for the Forensic Science Regulator to have statutory powers to enforce compliance with the quality standards and Codes of Conduct that he has developed through what appears to be a robust process. The Government should bring forward proposals to provide the FSR with statutory powers immediately.

INPUT TO THE FSS CLOSURE DECISION

130. Although sponsored by the Home Office, the FSR operates independently of the Home Office, on behalf of the criminal justice system as a whole. According to the Home Office website, "this independence allows the Regulator to make unbiased recommendations and decisions".[177] Despite being in a position to give unbiased advice to the Home Office, the FSR told us: "I was aware [of the decision to close the FSS] a couple of weeks beforehand, but I was not consulted. I am being consulted now."[178]

131. It is unacceptable that the Home Office failed to consult with the Forensic Science Regulator when considering the future of the FSS, as he was a key stakeholder who could have offered a useful, independent perspective.

Transfer of FSS work and staff

132. A wealth of skills, knowledge and experience resides with the scientists employed by the FSS. Lisa Webb-Salter, an FSS employee, considered that "the most valuable asset of the FSS is its staff—their skills and knowledge, their commitment and dedication, and their passion for justice".[179]

133. The Transfer of Undertakings (Protection of Employment) Regulations 2006, (the TUPE regulations), provide employment protection during business transfers and equivalent changes.[180] Government guidance, Staff transfers in the public sector: statement of practice, states that:

TUPE implements the 1977 European Council Acquired Rights Directive. In broad terms, TUPE protects employees' terms and conditions (except occupational pension arrangements) when the business in which they work is transferred from one employer to another. Employment with the new employer is treated as continuous from the date of the employee's start with the first employer. Terms and conditions cannot be changed where the operative reason for the change is the transfer although changes for other reasons may be negotiated.[181]

134. Prospect stated that:

Compulsory contractual redundancy terms agreed in 2007 between FSS and Trade Unions are established and being used in current redundancies caused by the site closures already underway. Should work transfer to other providers, Prospect believes that two-way support for Transfer of Undertakings (Protection of Employment) Regulations (TUPE) will be required to ensure a smooth transfer of employees.[182]

135. FSS staff that provided written submissions were keen to ensure that TUPE regulations were adhered to. For example, Dr Mark Mastaglio, FSS, considered that "it would be iniquitous to transfer individuals who have dedicated their entire careers to public service on terms that were not covered by [TUPE regulations]".[183] Lisa Webb Salter stated that:

Several hundred FSS staff were made redundant as a result of the recent closure of the Priory House, Chepstow and Chorley laboratories, and these staff have all left or are currently leaving with the original redundancy package. It is therefore highly insulting and unfair that the staff who remain could now be made redundant under reduced terms. Their rights should be protected.[184]

136. Antonio Queenan, FSS, stated that:

With the current fragile state of the forensic market many of the staff at the FSS are not prepared or are in a position to move to the private companies unless it is under TUPE conditions or after receiving a redundancy payment from the FSS.[185]

137. Several FSS employees highlighted the transfer of the Metropolitan Police Service's (MPS) drugs contract to LGC Forensics in 2010. Peter Minty, Forensic Toxicologist, FSS, stated that:

The loss of the Metropolitan Police contract for bulk drugs analysis to LGC Forensics, resulted in 17 staff[186] being transferred under TUPE. LGC had insufficient room or facilities to take these staff and following provision of funds, generous redundancy terms were agreed.[187]

138. Others were more critical of the transfer. For example, Lisa Webb-Salter stated that the staff transferred to LGC Forensics were "effectively discarded" and that "this scenario is likely to be repeated many times over when the work currently carried out by the FSS moves to other providers" at "immense personal cost to the individuals involved, and significant financial cost to the tax payer".[188] Steve Thomas, Prospect, stated that "not one of [the staff] actually ever set foot in an LGC building because they were all made redundant before they even made it".[189] However, David Richardson, Chief Executive of LGC Forensics, told us that:

you received some evidence [...] that may not have been fully informed because the people involved there did, in fact, come to our facility. They had a number of briefings, we offered jobs to all of them, and, for a number of different personal reasons, they decided that they did not wish to work in our Teddington facility. Those jobs were made available to them.[190]

139. Jennifer Button, a forensic scientist at the FSS, expressed concerns over the capacity of private FSPs to take on the FSS's work and staff by March 2012:

With experience learnt from closures underway at these sites [Chepstow and Birmingham], it is apparent that the proposed time frame for an orderly exist of the entire service from the forensic market is at best an unrealistic ambition!

Currently, as the market stands, there are no other forensic providers able to absorb the work of the FSS, which carry 60% of the market. A recent demonstration of my point is a drugs contract lost to LGC. The staff (16) were TUPE'd over and all took redundancy, since the country's second largest forensic provider could not accommodate them. In light of this, how does the Government propose transfer of 60% of forensic business seamlessly to other providers, especially given the proposed time frame?[191]

140. Cellmark Forensic Services stated in their written submission that:

The issue of TUPE does give some cause for concern as it has the potential to impact on the commercial viability of the transfer of certain areas of work from the FSS to private companies.[192]

141. Given the "fragile" state of the forensics market,[193] the financial position of private FSPs was questioned. The FSS stated that:

Our assessment of publicly available financial information for other FSPs indicates that, prior to recent reductions in demand, only one provider was reasonably profitable. It is likely that, in the current market, none are achieving sustainable returns.[194]

142. John Haley, FSS employee, stated that:

Two of the major forensic companies in the market have either been close to pulling the plug on their forensic division or going into insolvency. With this sort of "market", it could lead to old style back logs as companies go out of business and also force these companies to cherry pick even more.

The FSS has around 60% of the market in the UK. The other companies have taken FSS share over a 4-5 year period, and in this period they have only managed to pick up 40% of what was a controlled situation. How can these companies pick up 60% of the market in just over a year? It's not a simple case of moving production facilities, we are talking about setting up validated laboratories, moving staff and putting controls in place to ensure quality does not suffer.[195]

143. Mr Richardson, LGC, explained that the shrinking market:

has certainly affected our business in the sense that we are carrying quite a large amount of spare capacity at the moment that we have continued to maintain, initially, with the continuing tendering of work being expected and now, of course, in the light of the decision to close the FSS. So it has had an effect on us from that perspective.[196]

144. When asked how confident she was that the private sector within the UK would be able to absorb the staff employed at the FSS, Dr Gill Tully, Research and Development Manager, FSS, responded:

one of the interesting historical pieces of information that we can draw on is to look at what has happened to staff from our closed laboratories at Chorley and Chepstow. Obviously, we don't have a full data set, but, in the main, from the information we have been able to gather, around 90% of the leaving staff have left the profession completely. There is a real risk to the UK's capability and capacity to undertake forensic science well. Some of the issues will be to do with relocation. Not all of these members of staff, and particularly very senior members of staff who are at a stage in their career where they are settled in an area, will be willing to relocate. There are issues of where the capacity is. Some areas have overcapacity, in some commodity areas, for example. Other areas have under-capacity. There are also areas of specialisms. The one thing that is perhaps exempt from the 90% figure is some very small niche areas where people do tend to stay in the industry.[197]

145. Bill Griffith, FSS Chairman, added that:

Somehow we have to find a way with this transition, this move, to wind down the FSS, to make sure of the full extent to which other suppliers [...] are able to take the work that becomes available. I am absolutely sure, in contrast to some thoughts that were expressed when the decision was made, that they will need FSS staff: absolutely. We have to find a way of ensuring that that move of staff is done in as efficient and elegant a way as possible. [...] We still do the majority of the work—50% to 60% of the work—in the country, and we have a great capability. It is unimaginable that there won't be a need to transfer numbers of staff. I would wish that as much of that capability still continues in the criminal justice system, even if it is in a different entity from the FSS. We must find a way of doing that, and all our efforts and discussions are really to search out ways of ensuring that that happens. It is about irreplaceable skills and experience.[198]

146. The FSS employs over 1,000 staff.[199] We are deeply concerned about the practicalities of transferring the FSS's work and staff to other FSPs by the transition deadline of March 2012. The FSS Transition Board must ensure that, whatever the outcome, forensic scientists employed by the FSS are retained within the profession and within the UK to the benefit of the criminal justice system. Transfer of staff to other forensic science providers must be conducted under TUPE regulations and in addition, care is needed to ensure that pension provision is adequately protected.

Archives

147. The FSS has built up, over many years, an archive of case files containing notes, examination records and results of examinations.[200] It had previously been estimated that the FSS's main archive held the records of over 1.5 million cases. However, taking into account the case records of the laboratories which have recently closed, together with those that exist at present, the total number of case files within the FSS as a whole was estimated to be 1.78 million in May 2011.[201]

148. The case files also contain "all the records of continuity; that is where every sample has been, how they have been stored and all such records you would need in order to secure a successful conviction in the future".[202] Dr Gill Tully explained that the FSS's archives also contain "a large number of retained material. That includes DNA and microscope slides that perhaps have a very thin smear of a sample taken from a swab from a rape victim that may be the only evidence left in the case".[203] The case files and retained materials alone do not constitute the archives. The FSR stated that:

An equally important issue for me is the many research papers and validation papers locked up in that archive which have never been published. They have to remain accessible and available. We might even look at opportunities for publishing some of those in the future. The archive covers a lot more than just case files.[204]

149. The archives are important for a number of reasons, but particularly for cold case reviews. These are unsolved crimes where the investigation trail has gone cold (see paragraph 12). Retention of the archive enables forensic scientists to re-examine materials from old unsolved crimes using new scientific techniques. Dr Tully explained that:

In conducting any sort of review into old cases, we use the term "cold case reviews", which means we go back and undertake a thorough and systematic examination of retained material, archived material, case notes and case files to see if there is any material left that would benefit from re-examination in the light of new methods and techniques that have been developed. This is generally undertaken in close co-operation with the police force that knows what has happened in the case outside the forensic arena. We have undertaken that type of analysis in many cases. We have had over 220 successful convictions from very old material based on using new methods and new techniques.[205]

150. The FSS highlighted the costs of maintaining archives:

It was estimated that in April 2008 the non-staff running cost of storage, within the FSS, was in excess of £445,000 per annum. This is an overhead which other forensic providers do not have to bear. It is understood that their general practice is to return all items and the majority of materials generated to the originating police force.[206]

151. David Hartshorne, Cellmark, confirmed that "a more common approach nowadays is for evidence to be returned to police forces, but case files would remain with the supplier".[207]

152. The material in the FSS's archives is owned by police forces.[208] However, Dr Tully told us that "these sorts of archives and their accompanying records do not exist in police forces or elsewhere, so the magnitude and the importance of the archive cannot be underestimated".[209] Steve Thomas, Prospect, added that:

It is right to look at the actual records and the archives that exist, but one thing that is important to our members and the employees of the FSS is the intellectual record that accompanies the work that is done. Our concern would be that you could move the archive—if you want, you can term it as a "library", although it is more than that—from one place to another and have someone else run it, but if you don't transfer the skills and the knowledge that have been built up, in some circumstances over decades, which understand how the original methodology was used and what should be given reconsideration when technology advances, you lose that link. When that happens not only do you, potentially, lose the access to the record, but you lose the context in which that analysis is done.

There is the physical side of archiving, but, for us, there is also concern about the intellectual qualities required for that.[210]

Dr Tully agreed "fully" with Mr Thomas on intellectual capability and added that:

at the moment there are over 5,000 metres of storage space involved and 17 people just maintaining the records. When you look at the skills needed, as Mr Thomas said, to mine these records, you need the historical understanding and the context of how the cases were undertaken. You need to be able to understand how the notes were written, the shorthand and so on. That skill needs to be preserved for the future and there needs to be succession planning for that skill, otherwise it will be just a warehouse, which is no use to anyone.[211]

153. Dr Tully considered that intellectual capability "is even more important than where the physical archive is located" and that "if that skill set is broken up, that would be of huge damage to the criminal justice system."[212]

154. Mr Thomas questioned the profitability of cold case work for private companies.[213] We asked Mr Hartshorne, Cellmark, how profit could be made from cold case work.[214] He responded that:

In the same way we would make a profit out of all the forensic work that we undertake. There seems to be a misconception that the private sector won't do complex casework or do cold case reviews.[215]

[...] Just as with all forensic work, the work is charged according to the work that is undertaken. That is no different in a cold case as it would be for any other forensic case that comes to us immediately after the offence.[216]

155. The Criminal Cases Review Commission (CCRC) investigates alleged miscarriages of justice and can refer cases back to the appeal courts. It stated that:

The FSS archive needs to be maintained. Its existence is essential to reinforce confidence in the [criminal justice system] and essential to the work of the Commission. If the archive is broken down and distributed to police forces, which may be one possible option, the degree of fragmentation will be huge, and undoubtedly very expensive to manage. It increases the risk of material going missing if it is not held centrally. It will certainly increase the time taken for the Commission to review cases. Once fragmented, the archive will also be lost forever in terms of its research and development potential.[217]

156. Dr Gary Pugh, London Metropolitan Police, agreed that the archives were important and a rich source of material for cold case reviews. He added that "most of the information contained in that archive comes from police investigations. Clearly, individual police forces will have an interest in making sure that material is retained."[218] Chief Constable Chris Sims, ACPO, stated that:

The solution, to an extent, depends upon the transition solution for different parts of the FSS. For example, if part of the FSS was taken over and run as a going concern by someone else, then the expectation from ACPO would be that part of that new contractual arrangement would be the maintenance of the existing archive.[219]

157. Chief Constable Sims appeared to believe that the archives should be kept as a single entity, but added the caveat "well, it slightly depends on how the FSS transition goes".[220] The FSR stated that "for many reasons" he was in favour of keeping the archive as a single entity.[221] In contrast, Mr Richardson, LGC Forensics, believed that "various models could be made to work. I don't think it necessarily needs to be a single entity but, clearly, it would make administration easier" and that "it would be perfectly possible for that archive to be run and administered by the private sector".[222]

158. The Minister told us that he was "open-minded at this point in time as to whether [the archive] best resides in one receptacle or whether it can be provided in a different way in different places".[223] He was "very alive to this issue of cold cases" and stated:

That is why I am seeking specific guidance and advice and giving careful consideration to this point in relation to securing that archive and ensuring information is available for cold case reviews. It is absolutely essential that it is available in a joined-up way. I will look very carefully and closely at the evidence and advice that is given to me in terms of the best way to achieve that.[224]

159. We cannot see any benefits to breaking up the FSS's archives, including case files, retained materials, research and validation papers and the intellectual capability supporting the archive. Whatever the future of the FSS, the existing archives must physically remain as a single, accessible resource, supported by suitably qualified and experienced experts. This would be in the interests of the criminal justice system.

160. There may be benefits in developing the FSS's archives further into a comprehensive national resource. The custodianship of the archives should be agreed in the context of the NPIA's wind-down as well as the FSS transition. We recommend that private FSPs contribute suitable documents and materials to what we would term the "National Forensic Archives".

161. The archives are useful to investigations of potential miscarriages of justice as well as cold case reviews. The CCRC, who conduct such investigations, explained that:

Section 17 of the Criminal Appeal Act 1995 gives the Commission extensive powers to obtain material held by public bodies. [...] This includes the power to obtain files, materials and samples held by the FSS. Without our section 17 power the Commission would be significantly hampered in its work and it would undoubtedly lead to miscarriages of justice not being corrected and a consequent loss of confidence in the CJS.[225]

162. The CCRC added that:

prior to the FSS becoming a limited company in 2005, there was no question that the FSS was a public body and so we were able to use fully our section 17 powers. In 2005 the FSS became a GovCo, a company owned entirely by the Government. This meant that as the FSS continued to be funded from the public purse there was again no question regarding the use of our section 17 powers.[226]

163. The CCRC has no powers to compel private companies to make materials available,[227] and it expressed concern that distribution of the FSS's work to private companies may mean the CCRC would be unable to access important material for reviews. It stated that:

Not only will the work currently underway need to be re-distributed but so will the vast quantity of scientific material/evidence held in its archives, storage facilities and on its data bases. It is this information that is crucial to investigations, some of which are only possible with scientific advancements which could necessitate accessing material many years post conviction.[228]

The CCRC's view on the potential impacts was clear:

The impact [that distribution of archives] will have on our work should not be underestimated and will be nothing short of disastrous for the Commission's casework, for those who may have been suffering a miscarriage of justice and for the wider CJS. This will undoubtedly mean that cases which would otherwise have been referred back to the appeal courts will not be and conversely cases which could be concluded quickly (because the use of our section 17 powers can confirm that the conviction is sound) will take a great deal longer to conclude.[229]

164. The CCRC conceded that in the few cases where they had to go to a private FSP, they "met with no resistance" and stated "indeed it would be counter intuitive for one of the main FSS competitors to negotiate police contracts and then decline to pass to the [CCRC] material". However, they were concerned that "it is one thing to have a statutory right to obtain material, and entirely another to have to negotiate for it".[230] The CCRC suggested legislative change to extend their powers to private companies, or building suitable conditions into contracts awarded to private FSPs to ensure compliance with the CCRC's requirements.[231]

165. Section 17 of the Criminal Appeal Act in 1995 may have been sufficient to enable the Criminal Cases Review Commission (CCRC) to obtain materials when the FSS, as a public body, was the main provider of forensic services to police forces. Although this appears not to have been a problem to date, the increasing penetration of private FSPs into the forensics marketplace means the CCRC's statutory powers are becoming increasingly ineffectual. Whatever the future of the FSS, we recommend the Government consider extending the powers of the CCRC to obtain materials from private forensic science providers.

126 Ev 99, para 6 Back

127 "Forensic Science Regulator", Home Office website, www.homeoffice.gov.uk Back

128 "Meet the Regulator", Home Office website, www.homeoffice.gov.uk Back

129 Q 276 Back

130 Q 63 Back

131 Ev 73, para 2 [Cellmark Forensic Services] Back

132 Ev 61, para 17 Back

133 Ev 71, para 21 Back

134 Ev 100, para 15 Back

135 Ev w29, para 9 Back

136 Ev w72, paras 2.2-2.3 Back

137 Ev w94, para 1.5 Back