The Forensic Science Service - Science and Technology Committee Contents


5  The decision to close the FSS

208.  The announcement made in December 2010 that the Forensic Science Service (FSS) was to be wound down by March 2012 was a culmination of developments and decisions taken over the past two decades. The common view appears to be that that neither the current nor previous Governments handled the FSS's situation particularly well. For example, the Centre for Forensic Investigation, Teesside University, stated that "the move into the commercial market in the early 90's found the FSS lacking and it never really adapted or was allowed to adapt its business adequately to survive".[287] In addition, we have been mindful throughout this report that the majority of the decisions that we have criticised relating to the FSS's status and restructuring, the forensics market, police in-sourcing and forensic procurement strategy were made under the previous administration. We must state our disappointment at the historical inadequacies in government decision-making that brought the FSS to its current dire financial situation. While we have been critical of the current Government's actions, it must be put on record that we consider much of the responsibility for the current problems facing the FSS to lie with previous administrations. The changes made to the FSS since it became an Executive Agency in 1991, coupled with a subsequent lack of Government understanding of the nature of the growing forensics market, meant that problems inevitably arose.

Consultation and evidence-gathering

209.  The Forensic Science Society stated that:

It was generally felt that the proposed closure was an ill thought out and regressive step which could compromise the quality of forensic science, inhibit research and development and could jeopardise its contribution to the criminal justice system.[288]

210.  Forensic science is part of a broad landscape spanning the scientific, policing and criminal justice communities and the FSS does not operate in isolation. Having considered the key stakeholders with an interest in the future of the FSS, we would have expected the Home Office to have considered the position of the following people or organisations prior to reaching a final decision:

i.  the Association of Chief Police Officers (ACPO) or behalf of the police customer;

ii.  the Crown Prosecution Service (CPS), another key customer;

iii.  private forensic science providers (FSPs) who might reasonably be expected to take on FSS's market share, assets and staff;

iv.  the Home Office's Chief Scientific Adviser (CSA) on the potential impacts on science and research;

v.  the Forensic Science Regulator (FSR) on potential impacts to quality standards; and

vi.  the Forensic Science Service itself.

211.  We have already set out our disappointment that the Government took advice from ACPO, but not private FSPs, the CSA or the FSR. The CPS is also a key customer of the FSS, albeit not the paying customer. Roger Coe-Salazar, Chief Crown Prosecutor at the CPS, told us that the CPS was informed about the proposed closure of the FSS "right at the very end of November" and that:

The advice, and I use that word very loosely, that was provided was via the Attorney-General's office, which was a mechanism of highlighting the risks that would be presented to the criminal justice system should that closure not be managed in an appropriate and proper way. There was no further advice outside that.[289]

212.  The CCRC, being reliant on the FSS's archives for some of its reviews,[290] is another criminal justice customer of the FSS. However, the CCRC stated:

In light of our extensive experience and expertise and the pivotal role the Commission plays in the CJS, the Commission is surprised not to have been consulted prior to the decision being taken to wind down the FSS.[291]

213.  When we asked James Brokenshire MP, Parliamentary Under-Secretary of State for Crime Prevention, whether the CPS had been consulted prior to the closure decision, he responded that:

The Crown Prosecution Service was engaged. They were consulted as part of this process. [...] The CPS was engaged, via the Attorney-General, through the clearance processes in making sure that there was satisfaction across Government in terms of the decision that we took in relation to the wind-down.[292]

214.  The Attorney General fulfils the role of chief legal adviser to the Government and oversees the principal prosecuting authorities within England and Wales: the CPS and the Serious Fraud Office.[293]

215.  It appears that the Attorney General was first engaged only through the clearance processes, that is, the process by which Government-wide confirmation was obtained, after the initial decision had been made by the Home Office to wind down the FSS. We are surprised that the Director of Public Prosecutions, the head of the CPS, was not directly consulted. The Criminal Cases Review Commission does not appear to have been involved at all. This is unsatisfactory and unjustifiable given the impact the closure of the FSS could have on the work of the criminal justice system. It should not need to be stated that forensic science is a service for criminal justice, not just policing.

216.  It was clear from the written submissions as well as the public reaction that the announcement of the FSS's closure came as a surprise to many. However, we would not have expected it to come as a surprise to the FSS's senior management. We took oral evidence from Bill Griffiths, Chairman of the FSS, who explained the process leading up to the 14 December announcement:

The final notification to us was on 25 November 2010. We had a meeting with the Minister and we were formally told what the decision was. We had a board meeting the following day, which was a Friday, and we met as a senior management team on the Saturday to do some preparation. The actual announcement came out, of course, on 14 December, and that was the time that the business in general and the staff were told. We were under an embargo not to announce the detail until the statement had been prepared.[294]

That sounds out of context in a way, because in the period leading up to the decision—in fact for a number of months, and there is a whole series of correspondence and meetings [...]—we had been discussing with the Home Office what to do about a business that had a strategic plan submitted to the Home Office in April, which had not yet been signed off and which indicated some severe worries about the viability of the marketplace in which we operated. It certainly raised issues about the viability of the financing of the business and the impact of that marketplace on us. There had been continuous conversations, particularly when the new ministerial team took over, about the context in which we were operating. We had severe worries [...] about the marketplace, police procurement, developments and what turned out to be a very sudden collapse in the available work to the forensic suppliers.[295]

217.  Despite the "continuous conversations" between the FSS management and Home Office, the FSS's written submission stated that "the announced closure of FSS has been a huge shock and disappointment to staff; and to the forensic science community in the UK and overseas."[296] Prospect represents over 1,000 scientists employed by the FSS[297] and Steve Thomas, Officer for the FSS, indicated that there had been a fruitless desire for better engagement with the Home Office:

We had written to the Minister in June last year, welcoming him to his post and seeking a meeting, because, obviously, we had been aware that there had been issues to do with the size of the forensic market and the impact that that was having on our members through restructuring and other initiatives for some time. So we were looking for an early meeting with him. We had a response, either in June or July, to say that the Minister looked forward to meeting us to talk to us about what our concerns were about the marketplace, among other things, and that he was looking forward to working with us. The first time we met the Minister—either myself or my predecessor, the previous negotiating officer—was two weeks ago, which was not only not in advance of the announcement but it was not even within months of the announcement. That was the first consultation we had with the Minister. [298]

Mr Thomas told us that:

The first that the union was aware of the decision was on the day of the decision, on 14 December. There had been no consultation with us at all from the Minister. There had been no consultation or discussions with FSS management on it, so it came entirely as a shock both to us and to our members on the 14th.[299]

218.  Prospect's written submission also expressed concerns over "the manner in which the decision was presented by the Minister".[300]

219.  We are pleased that the FSS appears to have had ongoing engagement with the new Government, but concerned that these discussions were limited to senior management and did not involve less senior staff and the trade unions. It is disappointing that the staff of the FSS should have been so disempowered and disengaged from the process.

220.  When we asked the Minister whom the Home Office had consulted and what scientific advice had been sought, he responded that:

the issues and challenges that came up were, in many ways, of a commercial nature. Our discussions were focused on, obviously, the Association of Chief Police Officers, the NPIA and the policing sector. Equally, we did go out to the criminal justice sector to obtain their input in relation to the integrity of the criminal justice system. Obviously, the Home Office scientist, who has just given evidence to you, was notified in advance of the decision that was announced on 18 December.[301]

221.  However, Dr Simon Bramble, Head of Police Science and Forensics at the NPIA told us that "the NPIA were not consulted over the decision to close the FSS directly. We did not have anything to do with the final decision."[302] The Government should clarify whether the NPIA was consulted on the decision to close the FSS before the decision was made, and when.

222.  We are disappointed that the Home Office carried out minimal consultation before making its decision on the future of the FSS. There is a tangible difference between consulting before a decision has been made and consulting on transition arrangements after the decision has been made. It should not have been difficult for the Government to seek the views of key parties other than ACPO. With such limited consultation, and particularly the lack of scientific input, it is difficult for us to have confidence that the Government fully considered all available options for the future of the FSS and the likely impacts of its closure.

223.  We have serious concerns about the role of the Chief Scientific Adviser (CSA) at the Home Office and the limited information on which the decision to close the FSS was based. We do not consider that the Government's decision fully took into account the best evidence available and we are concerned that the CSA was disengaged from the decision-making process. We recommend that the Government Office for Science review whether there is a systemic problem with the Home Office's use of scientific evidence in policy-making.

Costs of closing the FSS

224.  The Home Office explained in its written submission that its "main priorities were to manage the risks to the CJS and to minimise the cost to the taxpayer".[303]

225.  Supply Estimates are the means by which the Government seeks from Parliament funds and parliamentary authority for departmental expenditure each year. Spring Supplementary Estimates are the final opportunity for departments to seek changes in parliamentary authority for spending before the end of the financial year. The Home Office's Spring Supplementary Estimates 2010-11, published in February 2011, show the changes to spend relating to the FSS.Table 5: Summary of figures in the Home Office Spring Supplementary Estimates 2010-11 relating to the Forensic Science Service[304]
Reason for spend Figure
Increase in programme (capital grants) to provide rescue aid to the FSS £13 million
Drawdown of programme to write down loans made to the FSS £12 million
Drawdown of programme to cover costs associated with the FSS transition £3 million
Drawdown of programme (capital grants) to provide rescue aid to the FSS £27 million
Total (excluding provisions for Crime and Policing Group) £55 million
Increase in provisions for the Crime and Policing Group £70 million
Total (including provisions for Crime and Policing Group) £125 million

226.  The Home Office had put in place Rescue Aid "to meet the necessary operating losses during the wind-down so as to support the provision of effective forensics during the transition process and avoid an uncontrolled administration".[305] The Minister elaborated that:

The rescue aid payments that have been made are, in essence, to cover the costs of stabilising the FSS and to manage the operational losses incurred during the period of the wind-down—they are very focused on those elements—and also to cover the costs of a round of voluntary exits associated with urgent structural measures to stem loss-making activities. That is where the rescue aid-type funding has been focused in relation to those payments.[306]

227.  The Minister explained that the £70 million increase in provisions for the Crime and Policing Group covered:

a range of issues and elements, including potential redundancy costs, property costs, interest payments, project costs and pensions. Clearly, that is a provision and we would certainly be working very hard to reduce that number, given that a lot of this relates to commercial negotiations with contracted parties. That is very much a provision at this stage in relation to the estimated costs during 2011-12.[307]

228.  Stephen Webb, Director of Finance in the Crime and Policing Group, Home Office, added that:

We took it as a prudent assessment of what we thought might be required. [There] are a number of areas where negotiations are going on—for example, with the trustees of the pension fund. It is hard to break it down precisely at the moment. We would certainly be looking to come in below that sum if at all possible.[308]

229.  On 5 April, the Home Affairs Select Committee took oral evidence from Home Office officials on managing cuts to the Home Office's budget. The Committee highlighted that winding up the FSS would cost £125 million in 2010-11, contrasted with the approximately £24 million costs of keeping it running (based on the quotes losses of £2 million a month). Helen Kilpatrick, Director General, Financial and Commercial Group at the Home Office, replied that:

Keeping it running though is not a viable option because the company would be trading insolvently, and the Rescue Aid Regulations wouldn't enable us to carry on forever propping up a company that was trading insolvent, so something had to be done with it.[309]

230.  The Government should clarify how costs associated with the FSS's transition were originally calculated, particularly given that the transition process was, and remains, not fully known. If it emerges through the transition process that additional public money is required for the wind-down of the FSS, including from sources other than the Home Office, this information should be published with an explanation.

231.  The Government's explanations of the £70 million increase in provisions for the Crime and Policing Group lacked detail. We request a full financial breakdown of the £70 million provisions as well as an update at the end of the financial year on how much the wind-down has actually cost the Government in total.

Alternatives to closure

232.  When he appeared before us, the Minister explained that the FSS was a GovCo and therefore "subject to the Companies Act and various other legislative requirements".[310] As a consequence there were three options that had been considered by Government:

[The] first option was allowing it to go into administration, which we immediately discounted because of the impact that would have on the criminal justice system and our fundamental desire to ensure there was integrity within the criminal justice system.

The second option was some form of restructuring. In other words, to invest further to see whether there was a way of retaining the FSS in some form to be able to break even moving forward.

The third option was, obviously, a wind-down arrangement, which was our ultimate preferred option in terms of dealing with the situation and taking things forward.[311]

The Home Office's written submission expanded on the first option:

The most drastic option would have been to withdraw any further financial help, which may have led to the directors placing the company into administration early this year. An uncontrolled administration would have seriously damaged the forensic capacity available, and we were not prepared to expose the CJS to that level of risk.[312]

233.  We agree with the Government that allowing the FSS to go into administration would have been undesirable, not only for the criminal justice system, but the employees of the FSS too.

234.  We have explored the reasons why restructuring would not have been a viable option in the context of a declining forensics market, in chapter 2. The Home Office's view, in summary, was that:

Further restructuring the FSS for ultimate sale would have been extremely expensive and there would be no certainty of achieving a sustainable position or realising any value from the company at the conclusion of this. We had to take into account State Aid and competition law constraints and concluded that, in a declining market, the cost of further restructuring would be disproportionate.[313]

235.  We were curious whether changing the status of the FSS from GovCo to the originally intended public-private partnership (PPP) would provide a solution. When we asked Bill Griffiths, Chairman of the FSS, about this, he stated that:

at no stage since the move to GovCo, has the board of the FSS proposed a move to a private status. We would only have ever done that if that was on the basis of a stable, healthy marketplace and business, and we never got anywhere near that.[314]

236.  We then considered whether it would be feasible to change the FSS's status to one that would remove the need for commercial viability. Having been, since 1991, an Executive Agency, Trading Fund and finally a Government-owned, Contractor-operated (GovCo) organisation that was originally intended to become a Public Private Partnership (PPP), we were aware that the FSS was no stranger to changes in status. The Minister's response was that:

It is worth underlining some of the other constraints that exist, particularly around state aid and the state aid issues that prevail in relation to this, given that a semi-market has been established with around 40% in the pure private sector and around 60% residing with the FSS. Therefore, the Government has to act within that framework of state aid. It can't simply continue to fund money on a pro tem-type basis. State aid requires us to look at a restructuring either to get to a break-even position or to some sort of liquidation position. Against that backdrop, seeking, perhaps, to nationalise it all over again was not an option that was attractive either from the commercial aspects that I have already talked to or, equally, the restrictions that exist around state aid.[315]

237.  It was suggested by some that the functions of the FSS could be split. This would essentially involve separation of the profit-making and non profit-making functions. Forensic Service Northern Ireland considered that:

A review of the FSS to assess which sections are viable business areas and which are of central importance to UK as a whole should be conducted. It is likely that any prospective buyer will bid for the most attractive assets within the FSS. This means that other non-profit making services will be redundant but these may be the very ones that are essential for dealing with major complex cases or with national security. These could be retained within a core FSS facility, which also acts as the national [forensic science] coordinator, rather than the NPIA, for R&D. They could also take back in-house the custodianship of the national DNA database, as the NPIA is dissolved.[316]

Similarly, Sir Alec Jeffreys, Professor of Genetics, University of Leicester, recommended:

retaining the FSS but in a greatly altered and substantially downsized state. I would maximise the transfer of profitable activity to the private sector, and place the remaining FSS back under the direct control of the Home Office, removing its pernicious privatised status. The focus of activities would be (1) R&D, (2) training, (3) retention of broad expertise and appropriate facilities to allow complex casework to be undertaken, (4) an oversight, quality-control and regulatory function with respect to the private sector, and (5) an international role in establishing standards and protocols. I would also like to see far better interfacing between FSS and academia, perhaps through relocation away from the Birmingham site.[317]

238.  As an alternative to closure, Forest Forensic Services recommended:

Maintain[ing] a smaller core cadre of senior scientist[s] to work with the Police, funded through central government allowing the FSS to coordinate R&D and contribute, coordinate and manage the more serious crimes alongside senior Police investigators.[318]

Final conclusions

239.  There are many factors to take into consideration when determining what has caused the dire financial position of the FSS. We consider the most significant factor to be the shrinking forensics market, driven by increasing police in-sourcing of forensic science and a forensic procurement framework that drove down prices and did not adequately recognise the value of complex forensic services.

240.  The stabilisation of the external forensics market is now of crucial importance. For this to be achieved, the Government must do two things. First, further police in-sourcing of forensic science must be curbed. Second, the National Forensic Framework Agreement, and any successor framework, must be revised to reflect that some forensic science services cannot be commoditised easily into products and ensure that the true costs of forensic services are reimbursed to providers. Without stability through regulation, a properly competitive market cannot be realised. A shrinking market provides no incentive for further investment or growth from any forensic science provider. The success of forensic science providers and their willingness to invest further in forensic science will be threatened if action is not taken to stabilise the market.

241.  The process whereby the Government reached a decision on the future of the FSS was taken on legal and commercial bases. If legal and commercial grounds were the only relevant considerations, the Government's decision to close the FSS would be reasonable. However, it is clear that such a decision should not be taken on purely legal and commercial grounds.

242.  The Government did not consider enough evidence in its decision-making. The impacts on research and development, on the capacity of private providers to absorb the FSS's market share, on the future of the archives and on the wider impacts to the criminal justice system appear to have been hastily overlooked in favour of the financial bottom line. Examining the possible impacts of a decision after the decision has been made contradicts the concept of evidence informing policy.

243.  Proper consideration should now be given to what resources might be irretrievably lost to the UK with the closure of the FSS, including the FSS's archives and the intellectual wealth residing within its scientists. We have seen no detailed plan outlining the transition and the future of the FSS's staff, archives, work and assets.

244.  While there would be merits in retaining the FSS as a completely public agency of the Home Office that focuses on R&D, training of forensic scientists, establishing quality standards and maintaining archives, we are not convinced that the separation of forensic science research and provision would necessarily be the ideal solution, because research efforts should feed into and improve service provision. In response to this report we ask for the views of the Government and Transition Board on this matter.

245.  The transition deadline of March 2012 is extremely challenging and we are not confident that an orderly transition can be achieved by this date. The Government should extend this deadline by at least six months. Extending the transition deadline would enable the Government to consult on, and determine, what its wider strategy for forensic science should be. The FSS should be supported during this period. The FSS transition should be carefully monitored to ensure that it does not further contribute to market instability or lead to a diminution of service to the criminal justice system. Continuing to support the FSS during this period may add additional costs to the public purse, but we consider that it should be seen as a price worth paying.


287   Ev w143, para 1.1 Back

288   Ev w163, para 5 Back

289   Q 138 Back

290   See paragraph 155. Back

291   Ev w156, para 13 [Criminal Cases Review Commission] Back

292   Q 304 Back

293   "The Criminal Justice System", Crown Prosecution Service website, www.cps.gov.uk  Back

294   Q 2 Back

295   Q 3 Back

296   Ev 77, para 1 Back

297   Ev 65, para 1 Back

298   Q 6 Back

299   As above. Back

300   Ev 65, para 1 Back

301   Q 303 Back

302   Q 138 Back

303   Ev 62, para 28 Back

304   HM Treasury, Spring Supplementary Estimates, 2010-11: Home Office, Session 2010-12, HC 790, p 221 Back

305   Ev 62, para 25 Back

306   Q 307 Back

307   Q 305 Back

308   Q 306 Back

309   Uncorrected transcript of oral evidence taken before the Home Affairs Committee on 5 April 2011, HC (2010-12) 928-i, Q 15 Back

310   Q 298 Back

311   As above. Back

312   Ev 62, para 29 Back

313   Ev 62, para 30 Back

314   Q 14 Back

315   Q 302 Back

316   Ev w77, para 3.5 Back

317   Ev 64, para 5(c) Back

318   Ev w50, para 5(c) Back


 
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Prepared 1 July 2011