2Forensics
6.Our predecessor Committee’s examination of the 2016 Forensics Strategy found that it was vague about how the police’s locally-negotiated procurement of forensic services would deliver the proposed ‘more consistent national approach’ on procurement, against a background of shrinking workloads for most types of forensics work (the main exception being digital forensics). The Committee also highlighted the challenge faced by some police forces in securing accreditation for their forensic laboratories, and urged the Government to give the Regulator statutory powers to be able to enforce quality standards at all forensics providers.7 We revisit these issues in this Chapter.
Procurement, and market sustainability
7.Our predecessor Committee reported in 2011 a then “widespread view that the forensics market was fragile”. The Committee was concerned about the police increasingly undertaking forensic science work, which could distort the market “by the police customer increasingly becoming the competitor”.8 In a 2013 follow up report, concerns were raised about “the willingness and capacity of private forensic providers to operate and invest in that market”.9 On the other hand, the Committee also highlighted the risk of forensics work that was previously done by the police being contracted from private sector providers in a way that resulted in tests related to criminal cases being split between different providers. In 2013, Dr Tully (then working at a private forensics company, but subsequently to become the Forensic Sciences Regulator) warned about such “dangers of fragmentation in procurement”.10 The Government’s response was that: “The [national procurement framework for forensics] does not, in itself, lead to fragmentation, as sole suppliers can be (and are) used on any one case. Cases do not need to be split or fragmented between suppliers. In fact, it would be very unusual for individual cases (especially major cases) to be split across suppliers.”11
8.In the Committee’s subsequent 2016 inquiry, on the Forensics Strategy, Dr Tully, by then the Forensic Science Regulator, commented that: “Looking at the [Forensics] Strategy, it does not seem, from my reading of it, that it provides stability or certainty for forensic science providers going forward.”12 The Strategy had emphasised the potential advantages of new local ‘partnership’ approaches to procurement, but our predecessor Committee had highlighted uncertainty about how this would be carried through into the ‘national approach’ also advocated by the Strategy.13 Since then, the capacity of private sector providers has been reduced. In 2017, a textile fibre laboratory, Contact Traces, closed; as did a digital forensics supplier, Forensic Telecommunications Services. Dr Tully told us that the Forensic Archive took possession of some of the latter company’s test-result material on a temporary basis.14 It was reported in January 2018, that another firm—Key Forensic Services—almost collapsed before being bought, and the police had to pay to keep it operational for a three-month period while outstanding contracted work was completed.15
9.The Regulator, in her latest Annual Report in January 2018, highlighted that with forensics providers exiting the market there were risks for the security of exhibits and data, as well as a loss of forensic skills, and that “the level of resilience is very low”.16 Dr Tully highlighted work underway within policing and the Home Office to establish contingency plans for supplier exits from the forensics market, but warned against competitive procurement processes which drove prices down to the extent that supplier exits are more likely in the first place. She concluded that avoiding such outcomes would be “a more effective and efficient use of resources than the costly planning and execution of contingency plans following company failures”.17 Value for money was important but, she emphasised, “achieving the lowest cost does not always equate to the best value for money” and “greater focus on value than on cost is urgently required”.18
10.When Dr Gillian Tully gave evidence to us in February 2018, she reiterated those concerns about the sustainability of the forensics market:
Over the last couple of years, we have seen some of the risks that were raised at the time [of the Forensics Strategy] crystallise. We have seen two smaller companies and, now, one large company offering forensic services to the police in the UK go out of business.19
I think that something different has to happen if we are to ensure continuity of supply and, in particular, enough expertise remains in the field. A number of people have been made redundant once or twice. You cannot keep making people redundant time and again and expect that they will stay and retain their expertise in the [Criminal Justice System].20
It seems that the way in which some of the contracts are procured tends to push towards lowest pricing; it is not the case in all the contracts, but it is in some of them.21
When you look at the picture across the board, I do not think that enough has been done to make sure that there is stability in the marketplace.22
Dr Tully explained to us how despite the capacity of the market reducing, forensics providers were seeking to win a workload that was also falling in many disciplines, and the police’s procurement practices continued to engender fragmentation of tests, with providers asked to undertake narrowly defined test procedures without being asked to consider the results in the wider context of the relevant criminal case. Dr Tully, in her evidence to us in February, believed that the problem of fragmentation had worsened.23
11.The continued unsustainability of the market was a factor in Dr Tully’s call for a wider review of the Strategy (paragraph 30):
If it is a mixed economy between the private and the public sector, some sort of strategy needs to be in place to ensure that there is continuity of supply and that there is appropriate payment for what is difficult and complex work. […] We need to take stock now. We have suddenly ended up in a situation that could have jeopardised thousands of cases, had emergency funding not been provided. It could still result in our losing a great deal of the skill that we have available. We have a very complex situation, in which the vast majority of analytical and interpretive skills sit in the commercial sector and the majority of fingerprint comparison skills sit in policing. […] There needs to be a policy that says, “What services do we need? How are we going to ensure that they are sufficiently recompensed to be able to meet the required standards?” We need to make sure that the commissioning processes across whatever sectors the services sit in take account of the national status of sustainability, and not just the impact of one contract at a time.24
12.Concerns about the sustainability of the forensics market—a problem identified many years ago—have continued, with the collapse of private sector providers in recent months. The overarching focus in the police’s forensics procurement appears to be on low price, and problems of fragmentation of forensics testing remain. The Randox case has highlighted how an unsustainable market has also affected standards in the forensics providers supporting the civil courts (paragraph 22). The Government should review the sustainability of the forensics market as part of a wider review of its Forensics Strategy. That should include planning for dealing with providers exiting the market, but also an assessment of the underlying causes of market unsustainability. It should consider afresh whether the fragmentation of forensics testing is a result of the unsustainability of the forensics market or a contributing factor to it, and whether the procurement approaches examined by our predecessor Committee need to change.
Standards and accreditation
13.Our predecessor Committee noted in 2011 that while all forensic service laboratories providing services for the police were required to be accredited to the ISO 17025 standard,25 police in-house forensic services were not subject to the same requirement. The Committee had concerns about the potential transfer of the Forensic Science Service’s work to police laboratories,26 and secured an assurance from the Government that when the Forensic Science Service was wound up in 2012 its work was transferred only to accredited private forensic providers.27
14.In 2014, the Regulator made it a formal accreditation requirement to include adherence to the Regulator’s ‘Codes of Practice and Conduct for Forensic Science Providers and Practitioners in the Criminal Justice System’ (the ‘Codes’). In March 2016 the Regulator announced that the scientific standards set out in the Codes would form part of the assessment for all accredited organisations in the criminal justice system from October 2016 onwards,28 and set out deadlines for accreditation for all forensic providers, including police in-house facilities—digital forensics (October 2017), fingerprint comparison (October 2018) and crime scene examination (October 2020). The aim, as the Government put it, was “to provide parity in the forensic market-place, which would involve police forces being required “to implement the same quality standards as those demanded from commercial providers”.29 Our predecessor Committee concluded in 2016 that “the Government must be clear that, while some police forces may face particular challenges in securing accreditation, there must be no failure to meet the Regulator’s deadlines.”30
15.When Dr Tully gave evidence to us earlier this year, she differentiated between three groups of forensics providers in the criminal justice system in terms of their progress in meeting the required standards—large commercial providers, police services and small providers. Large commercial providers, she told us, were “extremely compliant with the standards and have been for many years”.31 The police in-house service was “running very substantially behind where it needs to be”. Only 17 out of 46 police forensics providers had “any sort of accreditation by the time the [October 2017] deadline passed” for digital forensics32—an “impressive” increase from only one police force 18 months before, but “with around 46 legal entities within law enforcement requiring accreditation, there is a long way to go”.33 On fingerprint comparison, the Regulator told us that she now expected that only 13 police providers will meet the October 2018 deadline for accreditation.34 Later accreditation deadlines appeared also in doubt: “If policing can do something radically different, there is a chance that we will be able to avert missing the 2020 [accreditation] deadlines around crime scene, collision investigation and fire investigation.”35 The third group—‘one- and two-person providers’—were “the most non-compliant of all”.36
16.The uneven progress on accreditation has impinged on the sustainability of the forensics market. The four large accredited providers, Dr Tully told us, “have a very fair complaint that […] not enough due diligence was done to say whether [smaller] providers would be compliant in time for the deadlines, so they missed out on those contracts to cheaper providers that were not investing in the quality standards”.37 The large commercial accredited providers have calculated that accreditation involves an overhead of about 15% to 20%, and Dr Tully acknowledged that for small providers the costs would be proportionately higher, but “it is very difficult to see how I could fairly set a different standard for those people, because they are still providing evidence to the criminal justice system”.38 Dr Tully explained that under the criminal procedure rules, all organisations now have a duty to disclose any non-compliance with standards in any statements they make to the courts, and that she had asked all non-compliant organisations to tell the courts “what mitigation they have in place that will enable the court to decide whether their evidence is sufficiently reliable to be used as expert evidence”.39
The Randox case
17.The Randox case has had significant adverse consequences for the integrity of the criminal cases that utilised the laboratory’s toxicology test results. Dr Tully told us in November 2017 that 10,000 criminal cases could be affected and that retesting of toxicology samples was likely to take 2–3 years to complete.40 Some tests will not be able to be redone however because, for example, the products of cannabis in a blood sample degrade quickly and might now be below the legal limit rather than above it. Dr Tully concluded that “there will be criminal justice implications from that, but it is impossible to say whether there was originally a miscarriage of justice”.41 If cases are referred to the Criminal Cases Review Commission, the degradation of sample could “certainly cast doubt” on the results, although other factors would also be relevant depending on the specific case.42
18.There are also consequences for the accreditation system and for the auditing of providers’ compliance with standards. The Regulator noted in January 2018 that:
Although [Randox] held accreditation to the appropriate quality standard, the malpractice was not discovered by the usual quality checks. This raised a number of questions including: (a) whether or not potential malpractice is more widespread than at [Randox], particularly given the movement of staff between forensic service providers; and (b) whether or not the quality standards need to be strengthened.43
Dr Tully explained that Randox did not have the additional accreditation to the ‘Codes’ (paragraph 14), which include a requirement for the ‘separation of responsibilities’, which appears to have been a factor in the Randox case.44
19.The Regulator’s recent Annual Report noted that during the year to October 2017, the United Kingdom Accreditation Service (UKAS) had carried out 23 Codes accreditation visits—on both police and private facilities—which identified over 700 ‘non-conformities’. Many of these addressed issues around ‘business continuity’ and ‘test methods and validation’.45 Dr Tully acknowledged that the weaknesses identified in the UKAS inspection visits could allow improper conduct to go undetected,46 and she told us that “as we have seen with organisations going out of business, having a proper business continuity plan is absolutely critical”.47
20.As a result of the Randox case, the Regulator asked all major forensic science suppliers to the criminal justice system to review their practices, and these audits found “no data manipulation”.48 UKAS was also reviewing the accreditation of toxicology providers and considering whether any changes to the assessment process might help find deliberately concealed manipulation of data.49 UKAS planned “to have a bit more variety” in its inspections, Dr Tully told us, “so that people cannot predict how they are going to be audited. It will do more vertical audit, right down to raw data.”50 She cautioned, however, that “the inevitable cost of adding additional safeguards should be balanced against risk”.51
21.In the meantime, the Regulator has sought to strengthen her investigation and whistle-blowing procedures. Dr Tully told us that she was developing an anonymous reporting facility through the Regulator’s website. But she also wanted to be added to the list of ‘prescribed persons’ under the whistleblowing legislation52 and to be exempt from data disclosure requirements under the EU General Data Protection Regulation that would make it difficult to undertake investigations of individuals. She had raised these issues with the Government.53 We wrote to the Home Office, urging action,54 and the Minister gave us assurances on these matters, including that the Regulator could be made a whistle-blowing ‘prescribed person’ once put on a statutory footing.55
Civil courts
22.One of the lessons from the Randox case was that a failure to meet the forensics standards required in the criminal justice system were not as readily identified in the civil courts system. Dr Tully explained that the oversight system deployed for criminal forensics is missing in the civil courts system. Staff involved in the malpractice at the Randox laboratory had previously worked at another business, Trimega (which subsequently folded), and Trimega’s failings in a family court case had not been communicated to any oversight body.56 Dr Tully explained that:
In the criminal justice system, for people who are compliant with the Codes of Practice and Conduct, there is a very clear requirement to escalate what has gone on. There are very clear escalation requirements, and organisations must report to me when things have gone wrong. In this [Trimega] case, […] it was not escalated in that [family courts] jurisdiction. One can think of it then as infecting, almost, the criminal justice system. There was no central record anywhere of that judicial criticism.57
23.Accreditation of forensics providers remains vitally important in maintaining the confidence of the courts and the public in the evidence used in the justice system. The Randox case has demonstrated the importance of all forensic providers becoming fully accredited (including to the Regulator’s ‘Codes’) in accordance with the deadlines set by the Regulator. That case also highlighted how standards and accreditation cannot be fully effective unless there is rigorous auditing of compliance. The Randox case, and its links to the earlier Trimega case, also point to a more fundamental disconnect of the forensics standards and regulatory systems between the criminal justice system (which is covered by the Regulator’s remit) and the civil courts system (which is not).
24.The Regulator should work with UKAS to strengthen the auditing of standards compliance, to include validation of test results as well as governance structures and processes; the effectiveness of which would be bolstered by the Regulator being given statutory enforcement powers, which we discuss below. The Ministry of Justice should 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, or for a similar regulator to be established with a similar remit, to bring a comprehensive and enforceable standards system to that sector also.
25.We welcome the Government’s commitment to make the Regulator a ‘prescribed person’ under the whistle-blowing legislation. That should happen as soon as her position is put on a statutory footing.
Statutory powers
26.The effectiveness of standards, and of the accreditation of those forensics facilities adhering to them, will depend in part on how well they can be enforced. Our predecessor Committee concluded in its 2011 report on the then Forensic Science Service that “it is time for the Forensic Science Regulator to have statutory powers to enforce compliance with the quality standards and Codes of Conduct that [the then Regulator] has developed”, and recommended that the Government “bring forward proposals to provide the [Regulator] with statutory powers immediately”.58 The Committee’s 2013 follow-up report reiterated that recommendation; specifically that the Government “decide on a statutory role by March 2014”.59 In its response, later in 2013, the Government announced a consultation “on proposals to put the role of the Regulator, and the scope of regulation, on a statutory footing, and to make adherence to the quality standards set by the Regulator mandatory for all providers.”60 It was not until July 2015, however, that the Government published an analysis of the response to the consultation, without giving any Government opinion, stating simply that “the way forward will be published alongside the [Forensic Science] Strategy”. When the Forensics Strategy was published in March 2016, it contained a commitment to granting the Regulator statutory powers by the end of the 2015 Parliament. Dr Tully told the Committee in 2016 that “it will not be possible to ensure full compliance with the standards without statutory powers”.61
27.The Forensics Regulator repeated the point in her latest Annual Report in January 2018, stating that “without statutory powers to enforce compliance, the Regulator cannot guarantee that all science being used in the [criminal justice system] is being carried out to the required quality standards”.62 The Regulator wrote to us in January 2018, at our request, with details of the specific statutory powers she wanted.63 She subsequently told us that “we can reach 80% to 90% compliance with the standards without statutory powers, but I do not think that we will ever get full compliance”.64 In March 2018, Chris Green MP presented his Forensic Science Regulator Bill—a private members’ bill—with the Government’s support.
28.The Forensics Regulator needs statutory powers to allow her to ensure that providers seek accreditation and that standards are delivered. Governments have stated a desire over several years to introduce statutory powers, with varying degrees of enthusiasm, and the Government has now lent support to a Private Members’ Bill. The Government, having supported the drafting of the current Forensic Science Regulator Bill, should now give it time in its legislative programme in order for it to make progress. It should then ensure rapid implementation following Royal Assent.
Forensics strategy and oversight
29.In our predecessor Committee’s report in 2016, it complained that the Forensics Strategy lacked a “coherent vision for forensic services” and concluded that a revised document was needed (paragraph 1).65 In our current brief 2018 inquiry, Dr Tully agreed that the 2016 Strategy had not delivered,66 and concluded that:
When the [Forensics] Strategy was published a couple of years ago, it talked about national approaches and so on. A programme has been set up within policing—Transforming Police Forensics—but it is only now at the ‘business case’ stage. There has been uncertainty for another couple of years, and I would say that there is still uncertainty among providers about what that will mean for them.67
Home Office witnesses explained that such work, to take forward the developments in both biometrics and forensics, was still underway, two years after the Forensics Strategy was published:
Work on developing the capacity and capability in the police to deal with biometrics and forensics—particularly in forensics—is being taken forward through the Transforming Forensics Programme, which has done some initial work, and the more recent proposals that have been put together by the police are being looked at, at the moment. Exactly how they will then provide improved forensic services themselves and work with the market will depend on the outcomes of that programme. […] The latest proposals from the police for the Transforming Forensics Programme have just been submitted and are being reviewed at the moment. Decisions should be taken shortly, which will then decide on which elements are to be taken forward.68
30.Against a background of accreditation delays (paragraph 15), the Randox case (paragraph 17) and the failure of some forensics companies (paragraph 8), Dr Tully believed that there was now a need for a Strategy review:
I really feel that now is the time for there to be a review of forensic science policy that asks, “What do we want to guarantee for forensic science in this country for the criminal justice system? For whom do we want to guarantee access to the services? For what services do we want to ensure that we have continuity of supply, and how are we going to make that happen?”69
The Regulator told us that “a large majority of the forensic science that is delivered in England and Wales is delivered to a good quality. […] There are a lot of very good forensic scientists doing very good work out there, but a lot of them are frustrated that they do not work in an optimal system that enables them to do the best work that they could do.”70
31.The concern expressed by our predecessor Committee in 2016 that the Forensics Strategy failed to fully address the linkages between biometrics and forensics policies also continues to be an issue. The Forensic Strategy document noted “an already ongoing review by police forces of the case for a ‘Joint Forensic & Biometric Service’ to achieve economies of scale, increased capability and resilience.” The Home Office told our predecessor Committee in 2016 that “Chiefs and [Police and Crime Commissioners] will want to consider the case for a [Joint Forensic and Biometric Service] in the round. One likely potential benefit will be an improved ability to innovate, to send signals to suppliers about priorities for innovation, and an enhanced ability both to trial new approaches and ensure these are rolled out widely over a service supporting a large area of law enforcement.”71 In our current inquiry, the Minister emphasised that although there were distinct applications of forensics (in criminal justice) and biometrics (for example in immigration), a Directorate for Data & Identity had been set up in the Home Office to help align common forensics and biometrics interests.72
32.One of the lessons from the Randox case (paragraph 17) is that the Forensics Strategy may also have been sub-optimal in not addressing the forensics requirements of the civil courts.
33.The Forensics Strategy requires re-evaluation. The weaknesses identified by our predecessor Committee in 2016 remain, and have since been exacerbated by accreditation delays, the Randox case and some forensics companies failing. The work underway under the ‘Transforming Police Forensics’ programme, intended to help shape future forensics services, is still underway two years after the Forensics Strategy was published. The Government should revise, re-issue and consult on a new Forensics Strategy; one that addresses the forensics requirements of both the civil and criminal justice systems.
7 Science and Technology Committee, Forensic Science Strategy, Fourth Report of Session 2016–17, HC 501, para 63
8 Science and Technology Committee, The Forensic Science Service, Seventh Report, Session 2010–12, HC 855
9 Science and Technology Committee, Forensic science, Second Report, Session 2013–14, HC 610
10 Science and Technology Committee, Forensic science, Second Report, Session 2013–14, HC 610
11 Home Office, Government response to the Second Report from the Science and Technology Committee: Forensic science, Cm 8750 (November 2013)
12 Science and Technology Committee, Forensic Science Strategy, Fourth Report of Session 2016–17, HC 501, para 22
13 Forensic Science Strategy, Fourth Report of Session 2016–17, HC 501, paras 19–23
14 Q11
16 Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018)
17 Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018)
18 Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018)
19 Q1
20 Q2
21 Q4
22 Q5
23 Q10
24 Qq 49, 50
25 international standard ISO 17025—General requirements for the competence of testing and calibration laboratories—intended to ensure organisational competence, individual competence, validity of methods and impartiality within a forensics laboratory.
26 Science and Technology Committee, The Forensic Science Service, Seventh Report, Session 2010–12, HC 855
27 HM Government, The Forensic Science Service: Government response to Seventh Report, Cm 8215 (October 20011), para 14
28 Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018)
29 Science and Technology Committee, Forensic Science Strategy: Government Response to the Committee’s Fourth Report, Second Special Report of Session 2016–17, HC 845
30 Science and Technology Committee, Forensic Science Strategy, Fourth Report of Session 2016–17, HC 501, para 55
31 Q18; Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018), p10
32 Q18
33 Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018)
34 Q18; Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018), p29
35 Q20
36 Q24
37 Q24 (See also Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018))
38 Q26; Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018), p26
39 Qq21, 23
40 Letter from Dr Gillian Tully on Randox Testing Services (November 2017)
41 Q14
42 Q17
43 Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018)
44 Q36
45 Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018); Q26
46 Qq32, 33
47 Q27
48 Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018)
49 Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018)
50 Q38
51 Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018)
52 Q38 (Although there is already provision for reporting concerns to the Regulator, there may be no statutory protection under the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998.The Regulator is not a ‘prescribed person’ under the provisions of s43F of the 1996 Act (see the Public Interest Disclosure [Prescribed Persons] Order 2014) and there is no guarantee that the provisions of s43G would apply).
53 Qq58–59; Letter from the Forensic Science Regulator, 16 March 2018 (also (BSF001)
54 Letter to Baroness Williams, 27 March 2018
55 Letter from Baroness Williams, 17 April 2018 (also BSF003)
56 Q34
57 Q34
58 Science and Technology Committee, The Forensic Science Service, Seventh Report, Session 2010–12, HC 855
59 Science and Technology Committee, Forensic science, Second Report, Session 2013–14, HC 610
60 Home Office, Government response to the Second Report from the Science and Technology Committee: Forensic science, Cm 8750 (November 2013)
61 Science and Technology Committee, Forensic Science Strategy, Fourth Report of Session 2016–17, HC 501, para 60
62 Forensic Science Regulator, Annual Report Nov 2016 – Nov 2017 (January 2018), p12
63 Letter from the Forensic Science Regulator, 10 January 2018
64 Q53
65 Science and Technology Committee, Forensic Science Strategy, Fourth Report of Session 2016–17, HC 501, para 82
66 Q51
67 Q5
68 Qq97, 100 [Christophe Prince, Director for Data & Identity, Home Office]
69 Q49
70 Q71
71 Science and Technology Committee, Forensic Science Strategy, Fourth Report of Session 2016–17, HC 501, para 69
72 Q91
Published: 25 May 2018