The Forensic Science Service - Science and Technology Committee Contents


Written evidence submitted by Professor TJ Wilson,

Northumbria University Centre for Forensic Science (FSS 82)

For the purpose of the required declaration of interest, I should perhaps state that my research centre might be seen as competitor to the FSS for forensic management consultancy work and, eventually, more complex genetic analysis.

I should also state that I am a former member of the Senior Civil Service and had some responsibility for the FSS in 2003-05, and that after leaving the Home Office I have undertaken consultancy work relating to forensic science and pathology for my former department, ACPO and NPIA. The content of memorandum, however, is based solely on publicly available material and my research will be incorporated in a forthcoming peer reviewed article that I am writing jointly with Dr Angela Gallop. Dr Gallop is a visiting professor at this university and is a former Chief Executive of Forensic Alliance, one of the FSS's competitors for work.

INTRODUCTION

1.  This memorandum has been written chiefly in response to issue four (the state of, and prospects for the forensic science market) of the Select Committee's terms of reference for this inquiry.

ORIGINS OF THE PRESENT CRISIS AND KEY ISSUES THAT WILL DETERMINE ITS RESOLUTION

2. The FSS has been a major contributor to the current unprecedented standing of forensic science globally and criminal justice in this country would have been the poorer without it. Undoubtedly the FSS and it main competitors and collaborators (including university scientists) have:

  • Raised the professional authority and independence of forensic scientists within the criminal justice system.
  • Ensured greater speed and economic efficiency in the delivery of forensic science compared with many, if not all, other G20 countries.

Both these achievements that stem from arrangements that are as much complementary, as they are competitive, in contributing positively to the developments of forensic science, are now at risk.

3. The origin of present crisis at the FSS has been ascribed to a combination of a privatisation strategy, a limited market and lowest price commoditisation.i The interactions of these three factors are complex and not easy to analyse. This problem is compounded by the extent to which they have not all been pursued with the same vigour and the policies behind them have evolved significantly over the years resulting in varying impacts. It might be helpful for the Select Committee, therefore, to place the context of the Government's decision to wind-down the FSS in a sufficiently extended time scale.

4. This decision comes after a series of carefully considered, but ultimately unsuccessful attempts during the Thatcher, Major, Blair and Brown Governments to find a stable, efficient and effective arrangement for financing the FSS and funding forensic science for the benefit of criminal justice. Much of this took the form of seeking to create a market. Initially this was planned as an arrangement internal to the public sector, in which the FSS was virtually a monopoly supplier. Eventually more effective arrangements, in the form of a more competitive market or pluralistic provision emerged, but, arguably, one in which for a long time the FSS enjoyed a privileged position.

5. A study of the history of the travails of the FSS suggests that the principal objective of public policy needs to be that of ensuring sufficient public expenditure is allocated to forensic science to maintain the current benefits it provides for criminal justice. The vital secondary question is how this funding might be effectively distributed to and accurately accounted for when dealing with individual cases. Without such policies and concomitant governance it is unlikely that forensic science will be provided in a stable, effective and efficient manner to the police and CPS, and the other equally important CJS stakeholders: the courts, defence lawyers and the Criminal Cases Review Authority (CCRA).

THE ORIGIN AND NATURE OF THE MARKET IN FORENSIC SERVICES

6.  The concept of a market in forensic science appears to have originated - initially internal to the public sector with charges as a form of rationing and with the FSS as virtually a monopoly supplier - as a recommendation by Sir Derek Rayner in 1981.ii This was not acted upon. Instead the Home Office undertook to strengthen FSS management and cut 34 scientific staff posts. The effect of this during a period of rising crime and advances in techniques can be easily imagined. The impact was compounded, however, by a series of damning miscarriages of justice involving errors or inadequate evidence by both the FSS and the Royal Armament Research and Development Establishment (RARDE). Most notably in the cases of The Birmingham Six, The Maguire Seven and Judith Ward, the limitations of scientific methods and exculpatory evidence had remained undisclosed within laboratories or government. Consequently by 1989 the Home Affairs Select Committee reported in that the FSS could not meet the demand for its work and that "morale was at rock bottom". The Committee supported the introduction of charges to balance supply and demand.iii This solution - introduced in 1991 - was also endorsed by the Royal Commission on Criminal Justice (1993). Influenced no doubt, by the problems exposed by the series of miscarriages of justice and the recognition of the need for independent authoritative advice for defence lawyers and the courts, the Royal Commission envisaged plurality of supply within a competitive market with everyone - police and provider staff - working to common QA standards.

7. The introduction of charges did not transform the situation for the better for either the criminal justice system or the FSS. As far as the former was concerned, as the miscarriage cases demonstrated, effective but limited alternative expertise could be tracked down in academia. Defence lawyers faced a major problem until Forensic Alliance was created in 1996. Until then most of alternative expertise was confined to the analytical testing of drugs and toxicology. As for the FSS, its relationship with the police appears to have veered between what the Rayner Scrutiny Team (1981) had described as the "indiscriminate use of forensic science" and a tendency identified by Touche Ross (1987) for "selectivity [to go] too far". Police expenditure on forensic science declined and it is particularly noteworthy that scene attendance halved between 1989-90 and 1994-95. The under resourced FSS attempted to manage its workload through internal rationing: by undertaking less work on each submitted item. Research by Tilley and Ford enables us to see the result of charging: the creation of two police commissioning models. One took the form of case by case submission decisions driven by perceptions of investigative needs, but which risked periodic budgetary crises. The alternative mode was centrally rationed submissions driven by the priority of keeping within capped budgets rather than a judgement about what was needed in each case.iv

8. It is clear from this research and associated publications that a serious effort was made to address these problems between approximately 1994 and 1996. A coordinated programme of business development and research was initiated to resolve the problems of rationing, greater transparency and predictability in pricing and how to create the right kind of professional relationship between scientists and investigators. The aim was to enable forensic science to make an "efficient as well as effective contribution" to criminal investigation. It is disappointing, however, given the shortcomings exposed by such major miscarriages of justice, and the problems of court and defence access to scientific expertise acknowledged by the Royal Commission, that no real consideration appears to have been given at this time to the needs of other criminal justice stakeholders.

9. Despite the emergence of highly competent and dedicated competition with the creation of Forensic Alliance (FAL) in 1997, there is no evidence that anything resembling a market existed until the early years of the last decade. Even then the FSS enjoyed a privileged position. For example, in 2004 FAL gave evidence to the Select Committee about the way in which the FSS was "embedded in Government" for the receipt of research funding and how this enabled them to scrutinise competing ideas from other forensic providers.v This had been reinforced locally by the exclusion of non-FSS forensic scientists or representatives from meetings of the staff - the scientific support managers - who commissioned forensic work.vi

10. Further support for this view comes from Williams and Johnson's examination of the origins of the DNA Expansion Programme. This transformed the global standing and perceptions of the usefulness of forensic science in England and Wales. This was achieved by a £300 million plus investment by the Home Office and the police in the use of automated DNA analysis in volume crime and related tasks such as latent fingerprint collection.vii Williams and Johnson have commented on how this programme was the result of "[p]olitical enthusiasm occasioned by the orchestrated claims of the two key agencies involved - the FSS and ACPO"viii, a description that amounts to an example of "plan bargaining". This is a typical feature of a planned economy, not a competitive market. Furthermore, despite the presence of two other providers engaged in DNA typing, the FSS alone received a Home office subsidy of £1.2 million pounds for the "Pathfinder" project (2000-01). This was intended to demonstrate that volume crime detections could be improved by the use of low template DNA profiling.ix

11. Ironically the DNA Expansion Programme appears to have made real competition possible for the first time by lowering the barriers to entry to the forensic market. These would have been reinforced by a scientifically justifiable emphasis on greater professional collaboration between the police and the FSS in the Case Assessment and Interpretation (CAI) initiative (1996). Automated DNA testing, however, is a different kind of business - industrial scale scientific analysis - from how forensic science had traditionally been organised as exemplified in CAI. There was considerable expertise elsewhere. LGC, for example, had undertaken volume scientific analytical chemistry organisation in the public health and agricultural markets for many years. It had already successfully entered the criminal justice market through drug analyses. It was well placed, therefore, to compete with the FSS over both price and speed of analysis for volume DNA work. Moreover, assured government investment transformed business prospects, encouraging the LGC to open DNA laboratories, first in London and later in Cheshire.

12. This transformation was further supported by other factors:

  • Treasury approved linkage between police performance targets and their revenue budgets required the FSS to introduce a more transparent and commoditised approach to charging (Product Pricing in 1996). This was an approach that was ideally suited later to large scale DNA testing. FAL and LGC responded flexibly to police requirements and attitudes rapidly changed. ACPO abandoned its "preferred partner" approach that had hitherto benefited the FSS and multi-sourcing was adopted by the FSS's biggest customer, the Metropolitan Police, in 2003.
  • With the initiation of the DNA Expansion Programme FSS performance, as a near monopoly DNA supplier in that country, failed to satisfy the Scottish police forces. This resulted in the creation of a separate DNA database and public sector investment in automated DNA analysisx despite (as indicated by the subsequent closure of an LGC laboratory) surplus capacity within the UK as a whole.
  • The professional reputation of the FSS was damaged by a highly visible series of prominent casework failures resolved by FAL: the investigations into the murders of Lynette White, Rachel Nickell and Damilola Taylor. Also technical failures by the FSS resulted in a failure to load 26,200 samples to NDNAD because of "administrative problems", delaying 1,168 match reports (equivalent to almost 3% of total crime scene to subject matches in 2008/09).xi

13. In 1998 perceptions of the private sector recorded by the NAO were of "niche players" or companies active in limited market sectors (eg drug analysis, toxicology and defence work). By 2003, however, it was estimated that the FSS had lost 8% of serious crime and 17% of NDNA related work.xii By then attitudes had also changed within FSS management and Home Office. It was recognised that a "small but effective and dynamic private sector" had "resulted in an increasingly competitive market in forensic science services". The then Home Secretary, Mr David Blunkett, endorsed the conclusions of the McFarland Report (2003) that the FSS "faced a sustained and accelerating loss" of market share and would only prosper in the private sector.xiii By December the Government signalled that the privatised FSS should not enjoy embedded privilege when the Minister of State announced that the Government had accepted the Macfarlane recommendation that when the FSS was privatised the National DNA Database should remain exclusively under public sector control.xiv However, as a government owned company, it was supported from 2005 by the Shareholder Executive and was able to obtain £50 million from the Government for its restructuring programme.

14. The changed fortunes of the FSS appear to have been affected by two factors. First, after a change of Home Secretary (from Mr Blunkett to Mr Clarke) ring-fenced central funding for forensic science was abandoned. Second, a procurement strategy: the NPIA led National Forensic Framework Agreement (NFFA). This appears to have maximised commodification and disaggregation of supply (ie a number of different providers might handle different tests in a single investigation). Thus the lowest possible prices might be obtained at the expense of optimising value through the effective use of scientific expertise. Scientists and investigators could no longer be guided by systematically exchanging contextual information and scientific results as anticipated in CAI. Its critics also referred to a "perverse" development with the police setting up rival laboratories.xv Matters then came to a head with the Comprehensive Spending Review which required major reductions in Home office and police budgets.

THE POTENTIAL EFFECT OF THE CLOSURE OF THE FSS ON CRIMINAL JUSTICE AND POSSIBLE MITIGATING MEASURES

15.  Past events demonstrate how stable and effective funding with concomitant governance are essential for maintaining the current pluralism and independence within forensic services. Without policies and an institutional structure to achieve this, both the integrity of evidence and future development cannot be assured.

16.  If the closure of the FSS remains Government policy, it will be essential to:

  • Secure the immediate and long-term storage of cellular material, DNA records, casework notes and exhibits held by the FSS.
  • Retain and redeploy many excellent scientists and forensic team members.

Instead of selling some laboratories and equipment to other providers such assets might be leased.

17. Consideration should be given to the feasibility of replacing the current highly disaggregated supply of services and products under NFFA with regionally delivered contracts negotiated for the supply of forensic services (not disaggregated products) from three or four national providers. This arrangement needs to balance concerns about ensuring value for money against security of supply. For this purpose use could be made of measures such as open book accounting and arrangements within an institutional structure that would ensure:

  • Step-in to vary contract terms in order that resources can be effectively mobilised and deployed to deal with mass fatality incidents or complex investigations into serious crime, or ensure that any loss or failure to gain external accreditation is remedied.
  • Police laboratories only undertake forensic work when it is done to the same external QA standards as private sector laboratories, this should also be enforced through step-in arrangements and costs should be transparent.xvi
  • Access for the courts, defence lawyers, IPCC and CCRA to forensic providers not commissioned by the police force responsible for the investigation of a case where scientific evidence or scientific strategies are questioned.
  • Mindful of the White, Nickell and Taylor investigations, senior investigating officers can have access to independent forensic advice or audit.

18. To resolve potential tensions between forensic scientists engaged in team work during an investigation and the independence eventually required for their probative role, consideration should be given to clarifying the role and strengthening the authority of reporting officers and a chief scientist in each provider organisation. Mindful of previous miscarriages of justice, the small number of such staff within each organisation might be subject to individual registration, quality assurance and discipline similar to the arrangements for forensic pathologists. If such arrangements are put in place, the courts and defence lawyers should be represented alongside other CJS stakeholders in the governance of these posts.

19. Restoring stability to the market is essential. The FSS may not be the only provider facing a crisis in the absence of Government funding or volume guarantees. An appropriate analogy is the volume guarantees that finally facilitated private investment in the High Speed 1 rail link.

RESEARCH AND DEVELOPMENT

20. The current pluralism and independence within forensic services and the ability of forensic scientists in England and Wales to undertake forensic work at least as good as that in other G20 countries will require the creation of an institutional structure to manage and support the pluralistic provision of and research in forensic sciences, within a governance framework for forensic sciences and medicine. Mindful of concerns about the privileged position enjoyed by the FSS in the past, the new arrangements need to be transparent and accountable to Parliament, all CJS stakeholders and the public. All forensic providers and universities should enjoy equal access to research funds made available by government and the police.

Professor T J Wilson

Northumbria University Centre for Forensic Science

14 February 2011

REFERENCES

i Jeffreys, AJ et al, Letter to The Times, 28 December 2010

ii NAO (1983) The Rayner Scrutiny Programmes 1979 to 1983 (London, HMSO)

iii House of Commons Home Affairs Committee (1989) The Forensic Science Service, quoted in Roberts, P. (1996) "What Price a Free Market in Forensic Science Services? The Organization and Regulation of Science in the Criminal Process". British Journal of Criminology 36: 37-52

iv Tilley, N and Ford (1996), A Forensic Science and Crime investigation (London, Home Office)

v House of Commons Science and Technology Committee (2005) Forensic Science on Trial, vol. 2, Ev.118

vi Ibid., p.37

vii Home Office (2006), DNA Expansion Programme 2000-2005: Reporting achievement (London, Home Office)

viii Williams and Johnson (2008), Genetic Policing (Cullompton, Willan) p.124

ix Burrows et al (2005), Forensic Science Pathfinder project: evaluating increased forensic activity in two English police forces (London, Home Office); see also Williams and Johnson, op. Cit. pp. 118 - 121, for the extent to which initial FSS and ACPO claims exceeded the results of this trial

x McCartney, C. Williams, R and Wilson, T (2010) The Future of Forensic Bioinformation (London, Nuffield Foundation) p. 58

xi NPIA (undated) NDNAD Annual Report for 2007-09 (London, NPIA)

xii NAO (1998) Forensic Science Service (London, HMSO) and NAO (2003) Improving Service Delivery: The Forensic Science Service (London, The Stationery Office)

xiii Hansard, 17 July 2003, col.62 WS

xiv Hansard, 9 December 2003, Col. 403 W

xv O'Neill, S. (2010) "Fears for criminal justice as police save money on forensic science", The Times, 19 July 2010 and Gallop, A, Letter to The Times, 30 December 2010

xvi For a classic example of forensic opacity see McCartney et al op. cit. paragraph 2.19.




 
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© Parliamentary copyright 2011
Prepared 1 July 2011