3 Private and police forensic science
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.
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.
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.
The first and current FSR, Andrew Rennison, took up his post in
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 UKASthe
United Kingdom Accreditation Servicedo 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.
96. However, ISO 17025 does not guarantee quality,
as Dr Gill Tully, Research and Development Manager at the FSS
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.
PRIVATE FORENSIC SCIENCE PROVIDERS
97. All forensic work tendered under the National
Forensic Framework Agreement (NFFA) must be accredited to ISO
17025. 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.
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".
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
99. The Natural History Museum highlighted the
risks posed by smaller unaccredited FSPs taking on more forensic
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
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.
Dr Steven Baker, a long serving employee of the FSS,
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.
102. As already noted, all FSPs providing services
for the police must be accredited to ISO 17025this 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 submissionsfor example, the Forensic Science
Northern Ireland (FSNI).
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
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
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
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
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"
and Dr Kevin Sullivan, Standards and Validation Manager, FSS,
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.
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:
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 CheshireCheshire
have applied for accreditation for their laboratoryand
the same in the Yorkshire forces as well, where they are combining.
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.
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
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
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".
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".
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.
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".
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 FSSa 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.
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".
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.
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."
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
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.
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".
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.
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.
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 witnessesnot 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
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
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.
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".
Roger Coe Salazar, Chief Crown Prosecutor, Crown Prosecution Service,
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 prosecutedI know there
are high profile examples to the contrarywithout 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
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
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.
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
126. The Forensic Science Regulator (FSR) was
appointed to ensure that forensic science provision to the criminal
justice system met scientific quality standards.
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
[...] 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
127. Andrew Rennison, the FSR, stated in his
February 2011 written submission that:
Discussions at the Forensic Science Advisory Council
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.
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 thosebolstering
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 Stateyou go through
that consultation processand 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.
I wrote that submission after the announcement of
the closure, and at that timethis is how fast things are
moving at the momentI 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.
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.
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".
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."
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 stafftheir skills and knowledge, their
commitment and dedication, and their passion for justice".
133. The Transfer of Undertakings (Protection
of Employment) Regulations 2006, (the TUPE regulations), provide
employment protection during business transfers and equivalent
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.
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
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]".
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
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.
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
The loss of the Metropolitan Police contract for
bulk drugs analysis to LGC Forensics, resulted in 17 staff
being transferred under TUPE. LGC had insufficient room or facilities
to take these staff and following provision of funds, generous
redundancy terms were agreed.
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".
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".
However, David Richardson, Chief Executive of LGC Forensics, told
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.
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?
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
141. Given the "fragile" state of the
the financial position of private FSPs was questioned. The FSS
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.
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.
143. Mr Richardson, LGC, explained that the shrinking
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.
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,
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.
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 work50%
to 60% of the workin 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.
146. The FSS employs over 1,000 staff.
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
147. The FSS has built up, over many years, an
archive of case files containing notes, examination records and
results of examinations.
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.
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".
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 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.
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.
150. The FSS highlighted the costs of maintaining
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.
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".
152. The material in the FSS's archives is owned
by police forces.
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".
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 archiveif you want, you can term it as a "library",
although it is more than thatfrom 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
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.
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."
154. Mr Thomas questioned the profitability of
cold case work for private companies.
We asked Mr Hartshorne, Cellmark, how profit could be made from
cold case work.
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
[...] 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.
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.
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."
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
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
FSR stated that "for many reasons" he was in favour
of keeping the archive as a single entity.
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".
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".
He was "very alive to this issue of cold cases" and
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.
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
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.
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
163. The CCRC has no powers to compel private
companies to make materials available,
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.
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.
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
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.
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
"Forensic Science Regulator", Home Office website, www.homeoffice.gov.uk
"Meet the Regulator", Home Office website, www.homeoffice.gov.uk Back
Q 276 Back
Q 63 Back
Ev 73, para 2 [Cellmark Forensic Services] Back
Ev 61, para 17 Back
Ev 71, para 21 Back
Ev 100, para 15 Back
Ev w29, para 9 Back
Ev w72, paras 2.2-2.3 Back
Ev w94, para 1.5 Back
Ev w75, para 3.2 Back
Ev 80, para 34 Back
"Forensics21 programme", National Policing Improvement
Agency, www.npia.police.uk Back
As above. Back
Ev 75, para 8 Back
Ev 80, para 32 Back
Ev w108, paras 3.4.2 -3.4.3 Back
Ev 75, para 6 Back
Q 272 Back
Q 290 Back
Q 343 Back
Q 345 Back
Ev 75, para 10 [Forensic Science Regulator] Back
Ev 81, para 40 [Forensic Science Service] Back
Forensic Science Regulator, Codes of Practice and Conduct for
forensic science providers and practitioners in the Criminal Justice
System: Pre-"dry run" draft, January 2011 Back
Forensic Science Regulator, Codes of Practice and Conduct for
forensic science providers and practitioners in the Criminal Justice
System: Pre-"dry run" draft, January 2011, p 6 Back
Ev w72, para 2.2 Back
Ev 81, para 39 Back
Ev w31, para 4 Back
Ev w68, para 2.12 Back
Ev w129, paras 2.3-2.4 Back
Ev 66, para 9 Back
Ev w163, para 2 Back
Ev w166, para 12 Back
Ev 103, para 13 Back
Q 282 Back
Law Commission, Expert evidence in criminal proceedings in
England and Wales, Session 2010-12, HC 829, p 148 Back
HC (2010-12) 829, p 148 Back
HC (2010-12) 829, p 177 Back
Q 213 Back
Q 144 Back
Ev 75, para 12 Back
"Forensic Science Regulator", Home Office website, www.homeoffice.gov.uk
Ev 80, paras 32-33 Back
The FSR is supported by the Forensic Science Advisory Council
(FSAC), which advises him on issues related to quality standards. Back
Ev 76, paras 23-24 Back
Q 287 Back
Q 289 Back
Q 342 Back
"Forensic Science Regulator", Home Office website, www.homeoffice.gov.uk
Q 231 Back
Ev w92, para 8.3 Back
"Employment protection during business transfers and takeovers",
Directgov, 24 November 2010, www.direct.gov.uk Back
HM Treasury, Staff transfers in the public sector: Statement
of practice, January 2000, para 2 Back
Ev 68, para 22 Back
Ev w32, para 6 Back
Ev w92, para 8.6 Back
Ev w52, para 4.1 Back
In the written submissions, this figure varied from 16 to 20 staff. Back
Ev w60, para 4a Back
Ev w92, para 8.4 Back
Q 45 Back
Q 127 Back
Ev w4, paras 2-3 Back
Ev 74, para 6 Back
For example, see Ev w111 [Robert Green]. Back
Ev 78, para 11 Back
Ev w11, paras 11-12 Back
Q 85 Back
Q 45 Back
As above. Back
"Our customers", Forensic Science Service website, www.forensic.gov.uk Back
Q 36 [Dr Gill Tully] Back
Ev 94, Annex B: Case files and Associated Paperwork [Forensic
Science Service] Back
Q 36 [Dr Gill Tully] Back
Q 36 Back
Q 294 Back
Q 36 Back
Ev 94, Annex B Back
Q 129 Back
Q 222 [Chief Constable Sims] Back
Q 36 Back
Q 36 Back
As above. Back
Q 38 Back
Q 36 Back
As above. Back
Q 130 Back
Q 131 Back
Ev w157, para 28 Back
Q 219 Back
As above. Back
Qq 220-23 Back
Q 294 Back
Qq 128-29 Back
Q 352 Back
Q 353 Back
Ev w156, para 15 Back
Ev w156, para 16 Back
Ev w156, para 21 Back
Ev w156, para 20 Back
Ev w156, para 21 Back
Ev w157, paras 23-24 Back
Ev w157, para 25 Back