Closing the Forensic Science Service will make miscarriages of justice more likely

Why should we expect a part of the criminal justice system to make money? That's a question being asked in relation to the growing concerns over the arrangements ? or the lack of them ? for the closure of the Forensic Science Service, which is due to take place next month.

Just to recap, the FSS is the biggest provider of forensic science services to police forces in England and Wales. It handles more than 60% of the forensic work ordered by the police, working on more than 120,000 cases a year and employing some 1,300 scientists. But ministers claim (and this is disputed) that the service is losing ?2m a month.

In yesterday's Observer Sir Alec Jeffreys, the inventor of DNA profiling, attacked the axing of the FSS for its 'unimaginative bean-counting mentality', and the New Scientist last week reported a LinkedIn survey which found that more than 75% of the 365 forensic scientists who responded thought the closure would lead to more miscarriages of justice. The government's reasons for shutting the service down are set out in this October 2011 report.

Since the early 1990s, the FSS has made a difficult transition from executive agency of the Home Office to commercial entity. The FSS was reborn as a 'GovCo' (government-owned, contractor-operated body) in 2005 in a move towards becoming a public private partnership, and in 2008 it was backed by a ?50m government loan as part of its transformation.

Alastair Logan OBE, the lawyer who represented defendants in the Guildford Four and Maguire Seven cases, has written about his fears for the survival of the FSS archive, which contains case files and retained material from some 1.5m cases. "The government declines to say what will happen to it as they are seeking a financial solution that does not require government funding ? they call it 'examining the business case'," he argues.

The preservation of the archive in its current form is apparently another luxury that we can't afford. "The alternative is either destruction or the return of the material to the forces that provided it most of whom have no facilities for long term protection and preservation (even if they could afford it)," he argues. "The chances of the many cold cases that remain being resolved would be negligible and a large and irreplaceable collection of evidence will be lost."

The Criminal Cases Review Commission, the independent organisation set up to investigate alleged miscarriages of justice, has argued that closure would "undoubtedly lead to miscarriages of justice not being corrected" and "the consequent loss of confidence in the criminal justice system". The CCRC has sweeping powers (under the Criminal Appeal Act 1995, section 17) to obtain material held by public bodies - that includes materials and samples held by the FSS. The section 17 powers don't extend to private bodies. In evidence prepared for the Commons science and technology committee, the CCRC reported that since 2005 it has requested that the FSS preserve or make available material on at least 150 occasions.

In the last few weeks, the CCRC has agreed for a clause to be included in the framework agreement governing the contracts for the provision of private forensic services which approximates the section 17 powers. "Obviously a contractual right is second best to a statutory power," notes case review manager group leader Matt Humphrey.

The science and technology committee's report was blistering in both its response to the arrangements for the wind up of the FSS, and the manner in which the decision to axe such an important service was made. The MPs reported a near complete failure to consult the views of anyone worth consulting (save for the Association of Chief Police Officers).

The attorney general was only consulted in the final 'clearance processes', the DPP wasn't and the CCRC did 'not appear to be involved at all'. Neither the views of the government's chief scientist, Sir John Beddington, and the Home Office chief scientist, Bernard Silverman, were taken into account. "This is unsatisfactory and unjustifiable given the impact the closure of the FSS could have on the work of the criminal justice system," said the MPs.

They were in no doubt as to the reasons for shutting down the FSS labs. "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." Nor were they impressed by the claim that the FSS was losing ?2m a month ".... not the full story," the MPs said, explaining that the figure did not take into account expected savings from the transformation, nor potential further declines in business and, while some monthly losses may have been ?2m, the average monthly loss over the past year was lower.

The fear is that the ongoing marketisation of forensics will inevitably lead to loss of quality. Alastair Logan predicts a proliferation of what he calls 'toy labs' where work done quickly, cheaply and without quality checks (such as ISO 17025) as police respond to their own pressures to cut costs. "One has only to recall the handling of exhibits in the Stephen Lawrence case to know how poor training and understanding affect the detection of crime," Logan reflects.

Nigel Hodge is a forensic scientist and former reporting officer at the FSS's Chepstow lab. He believes that scrapping the FSS will undermine the development of a sector previously bolstered by the public service ethos of the FSS. "While individual forensic scientists may be primarily concerned with issues relating to justice, the companies that employ them are driven by commercial motives: maximisation of profit, increasing market share, brand identity etc," he reckons.

Then there is what Hodges calls "the whole business of trade secrets" where a forensic services provider develops a new technology this puts him at a competitive advantage. "There is a danger of a 'black box' situation developing where information is put into a system by forensic scientists, and 'evidence' pops out of the other end but where no one really knows what goes on in between." Forensic science shouldn't be like "a secret recipe for fried chicken", he adds. Quite.