The work of the Biometrics Commissioner and the Forensic Science Regulator Contents


Market Stability

8.In our 2018 Report, we concluded that “concerns about the sustainability of the forensics market—a problem identified many years ago—have continued”.11 We therefore called on the Government to undertake a “review [of] the sustainability of the forensics market as part of a wider review of its Forensics Strategy”. The Forensic Science Regulator’s (FSR) evidence to us in March 2019 indicated that matters had not improved and that the situation was “worse” than nine years ago when we first looked into the Forensic Science Service:

The stability is worse […] There is an issue with loss of skills. There is an issue with it being very difficult to give the new recruits coming into forensic science sufficient breadth of training that they will make the really skilled forensic leaders of the future. All of that is worse. The prices have gone down. As I said, I think that that went too far. That is how we ended up in a situation of instability. I would say that the research and development landscape is less good than it was before.12

9.A Home Office review into forensics provision was carried out last year13 and an implementation plan was published in April 2019, after we took evidence for this inquiry.14 Dr Tully emphasised that the “recommendations” (as set out in the draft document she had seen at the time of giving evidence) were not “sufficient to deal with the problems that have been identified”. More specifically she noted that:

the review has identified all sorts of problems with stability of the provision of forensic science, but it has not changed the mechanism by which funding is assigned to forensic science or the mechanism by which decisions are made about where and how funding goes. Again, it is a local decision, down to chief constables and police and crime commissioners. None of that has been changed. In the last few months, we have come perilously close—within weeks—of a market collapse, with potentially more than one organisation in such severe financial difficulties.15

The implementation plan highlighted four recommendations that had arisen from the review and set out 13 actions, many of which did not appear to address some of the stability challenges facing the forensics sector:

10.Dr Tully explained that police forces were having to reduce their spending on forensics and gave the example of how one Chief Constable had:

with a heavy heart, [said] he had reduced his forensic spending by 50% in recent years. He said that was much more than he had cut any other area of spending […] if we have forensic science spending as one of x number of other priorities it is inevitable that funding will decrease.17

Dr Tully was also clear that unless the financial situation was stabilised, forensic science services could be back in the same place as they were a few months ago, namely approaching market collapse:

we could have ended up with one or more companies going into administration and all that capacity being lost […]it could have been one company or two companies, or it could have been two companies, plus a whole discipline from another; it could have been in that range.18

11.The Minister seemed less concerned than Dr Tully on the stability of the forensics market, noting that a mix of providers was a positive feature of the forensic market:

within market provision there are forensic service providers other than some of the ones that have struggled. I think it enhances my view that we need a mix of different providers,19

There is no harm but every benefit in having a mix of different providers available to the market.20

12.Dr Tully suggested that a way forward was to develop a national forensic science capability for certain forensic services.21 Dr Tully’s evidence to the Lords Science and Technology Committee stated the following:

For all disciplines where skills are threatened and/or already insufficient, concentration of the expertise in a single national provider may be the optimal or indeed the only way to safeguard future provision and attract highly experienced scientists who have moved away from front-line provision of scientific services back to the profession.22

13.The fragility of the current forensics market were starkly reinforced this June with the cyber attack on Eurofins Forensics Services (EFS). Although the National Police Chiefs’ Council (NPCC) suspended use of EFS immediately and isolated police networks with urgent and priority submissions diverted to alternative suppliers, capacity was affected with a backlog of cases building (Eurofins deals with over 70,000 criminal cases in the UK each year). EFS handled circa 90% of England and Wales complex forensics toxicology work and while it was prohibited from providing such services there is not enough capacity amongst other private providers to carry out the work. Some police forces only used EFS for all of their forensic testing. To ensure an equitable distribution of capacity the NPCC placed caps on what individual police forces could submit for testing but there was a risk that delays to forensics could lead to cases being dropped as there are, for some types of samples and cases, a chemical shelf life and a legal shelf life.23 It has now been established that EFS paid a ransom to unlock the frozen accounts.24

14.It is wholly unacceptable that the forensics market has—once again—come perilously close to collapse in the year since we published our Report. We remain seriously concerned about the long-term viability of the market for forensic science services and the significant risk that this poses to the effective functioning of a criminal justice system. It is encouraging that the Home Office did, eventually, accept our recommendation to review the sustainability of the forensics market. However, the implementation plan for the joint review of forensics provision (2018), published in April 2019, does not appear to propose measures that would adequately address many of the market stability challenges in the forensic services market.

15.The Government should work with the Forensic Science Regulator to develop her proposals for a National Forensic Science Capability. This should focus on those forensic disciplines where skills were threatened and/or already insufficient. The National Forensic Science Capability should also ensure that cyber security standards and protection are strictly applied and secure data back-up of information is routinely and securely stored.

Forensic Science Regulator: statutory powers

16.Since 2011, successive Science and Technology Committees have called for the Forensic Science Regulator to have statutory powers. The Government finally agreed, in 2016, to provide a “clearer statutory role for the Forensic Science Regulator” by the end of what was then the 2016–17 Session of Parliament.25 Such powers are still not in place.

17.We again heard powerful arguments from Dr Tully, the Forensic Science Regulator for why statutory powers were needed:

Essentially, there are disciplines across policing—and in some smaller forensic science providers—where people are not gaining the standards that they need to gain, because they know that there is no sanction if they do not do it.26

18.She also informed us about the implications of an absence of statutory powers for whistleblowing. Without being a statutory regulator, the Forensic Science Regulator is not on the list of prescribed persons. Therefore, whistle-blowers in the forensics sector are not as protected by Whistleblowing27 Legislation as in other industries with statutory regulators.28

19.The lack of statutory powers has also meant that the Regulator’s remit has not been extended to cover the civil and family courts. Dr Tully explained that the Ministry of Justice:

does not want to do anything, as I understand it, that is on a non-statutory basis. Therefore, until the role of the regulator is put on to a statutory basis, it is my understanding that it does not plan to make any moves on regulation29

One consequence of this is that at present there are “no quality requirements on toxicology provided to the family court system”.30 In our 2018 Report, we called on “the Ministry of Justice [to] work with the Home Office and the Forensics Regulator to examine the scope for the Regulator’s remit to be extended to the civil courts forensics system”.31 Despite this, work between the Home Office and the Ministry of Justice to tackle this challenge does not appear to be taking place. Baroness Williams of Trafford, the Home Office Minister with responsibility for forensics, told us: “I have not personally had conversations with the Ministry of Justice. I do not know whether others have”.32

20.Despite these important reasons for statutory powers, disappointingly the regulator still does not have them. This is all the more frustrating given that:

a)a Forensic Science Regulator Bill was introduced to the House of Commons but it was a Private Member’s Bill which has yet to have its Second Reading nor has it been afforded any Government time. Dr Tully noted that “in the same period other private Members’ Bills that have been objected to, such as the upskirting Bill and the FGM Bill, have found their way into Government legislation, but this one has not. I do not think that it is high enough on […] the Government’s priority list”;33

b)The Committee recommended in its 2018 Report that “the Government should now give [the Private Member’s Bill] time in its legislative programme in order for it to make progress”. Despite repeated letters from us to the then Leader of the House of Commons and the Home Office, asking why the Bill could not be afforded Government time, the Government has not taken any clear steps to assist the Bill though Parliament. In oral evidence the Minister herself expressed “disappointment” and frustration that the Bill had not progressed;34 and

c)The Minister could not confirm whether the Home Office had applied for a legislative ‘slot’ in the next Parliamentary session.35

21.In the face of an unstable forensics market which has been on the brink of collapse, and the clear need to uphold quality standards across forensic services, the Regulator—now more than ever—needs statutory powers. The Government professes to “strongly support” the Forensic Science Regulator Bill yet it has not taken any active steps to facilitate its passage through Parliament. Nor are we reassured that it has contingency plans in place to ensure a similar Bill is afforded a legislative slot in the next Parliamentary session. This is unacceptable. The Government has failed to show leadership and pass what is ultimately an uncontroversial piece of legislation but which is vital for the effective administration of justice.

22.The Home Office should apply for a legislative slot for a Forensic Science Regulator Bill in the next Parliamentary Session and not rely on backbench Members to get the Bill through Parliament. Legislation is needed not only to put the Forensic Science Regulator on a statutory footing but also on the use of forensics in the civil and family courts. The Bill should include:

i)Prohibition on the police using non-accredited laboratories; and

ii)All in-house police laboratories should be accredited within a year.

11 Science and Technology Committee, Biometrics strategy and forensic services, Fifth Report of Session 2017–19, HC 800

22 Dr Gillian Tully – Supplementary written evidence (FRS0107)

23 Forensic Service Provider Cyber Incident: Written statement - HLWS1618

24 BBC News: Eurofins Scientific: Forensic services firm paid ransom after cyber-attack, 5 July

25 Home Office, Forensic Science Strategy A national approach to forensic science delivery in the criminal justice system CM9217 March 2016

27 Protection for whistleblowers in the UK is provided under the Public Interest Disclosure Act 1998 (PIDA). Disclosures are only protected if they are made to an appropriate party. The PIDA protects whistleblowers who make disclosures in good faith to:

- Their employer, either directly or through an internal company procedure.

- Another person whom they reasonably believe to be solely or mainly responsible for the relevant failure

- Those persons who make disclosures to a “prescribed person” (that is, a party outside the company prescribed by the Secretary of State, such as a regulatory body) must satisfy more conditions to obtain protection. In turn, whistleblowers who make disclosures to external persons or bodies not specified in the PIDA must fulfil a larger number of conditions before qualifying for protection.

31 Science and Technology Committee, Biometrics strategy and forensic services, Fifth Report of Session 2017–19, HC 800

33 Q3

Published: 18 July 2019