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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