Wednesday 22 August 2012 by Alastair Logan
The Forensic Science Service (FSS) was a government-owned company. It provided services to police forces across England and Wales, together with other agencies such as the Crown Prosecution Service, British Transport Police and HM Revenue & Customs. It also provided services to police forces in other countries.
Since the early 1990s, the FSS has gradually progressed consequent upon decisions of the governments of the day from a public to a commercial organisation, and a market developed in forensic services with the FSS competing with private forensic science providers (PFSP). The FSS held around 60% market share in December 2010. On 14 December 2010 the government announced its intention to 'support the wind-down of FSS, transferring or selling off as much of its operations as possible' by March 2012. This was disingenuous as it had decided to close the FSS as part of the 2010 spending review. The wording was undoubtedly chosen to deflect any responsibility for the decision to close from government. The decision, taken by those who understand the price of everything but the value of nothing, was vandalism and destroyed an essential pillar underpinning the Criminal Justice System (CJS).
The decision to close the FSS was taken without any of the consultation that one might expect. There are a number of people and bodies that have close connection with the FSS. They include the government's chief scientific officer Professor Bernard Silverman and the Forensic Science Regulator who is responsible (but without any powers) for ensuring the provision of forensic science services across the CJS and also ensuring that providers have reached and adhere to an appropriate level of scientific quality standards. Neither was aware of the decision to close the FSS until it was announced. The director of public prosecutions was not consulted, neither was the attorney general nor the lord chief justice. In fact, the only body consulted by the government in advance of its decision to close was the Association of Chief Police Officers (ACPO), a body whose audits carried out over many years have showed consistently poor knowledge and understanding of forensic science.
Subsequently the government sought to persuade the Science and Technology Committee of the House of Commons (ST&C) that the reason for closing it was it was losing £2m a month, which the ST&C found to be untrue in a damning report produced in June 2011. Why should a constituent part of the CJS have to be profitable? Which other part of the CJS is profitable in financial terms? At a net annual cost of about £12m (the figure the ST&C found was the correct one) the FSS provided a world-class, pioneering body that was internationally respected and consulted and was 'a jewel in the crown of the CJS and an exemplary example of value for money'. The bean counters at the Home Office failed to understand that for a body providing a public service the equation is value received for funding provided.
We are already back to the old days when police forces such as the Metropolitan Police Service (MPS) had their own in-house forensic laboratories. Some of these had poor-quality standards and their staff were not quality assessed. Moreover they could not be said to be independent, as the FSS was, because they served the force concerned and were not available to or answerable to anyone else. There is a serious concern that some of these laboratories will be "toy labs" where the work done will not be done in accordance with the International Organisation for Standardisation (ISO) 17025, the main ISO standard used by testing and calibration laboratories, as the police will seek to reduce their costs by designating certain work as "non-forensic" and therefore not needing to be compliant with that accreditation.
Thus the collection, collating, classification and processing of samples are likely to be done by people without the relevant accreditation. Indeed recent press reports suggest that foreign companies will be asked to tender to do this work. Scenes of Crime Officers and their training have been assessed regularly over the last 30 years and this, in common with ACPO, has consistently shown a poor level of understanding of the science and what it could do for them. 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. Moreover, the focus of the police now is on cost and that will be the determining factor in the application of forensic science to a particular case.
The main customer of the private forensic science providers who will now supply the forensic science not done in-house will be the police. Their interest is to drive down the cost and that will inevitably affect the availability of skills needed to provide forensic science in areas other than DNA and blood analysis. Over 1,600 FSS forensic scientists have been made redundant in the closure and will leave forensic science for good. It is inevitable that some expertise will be lost forever. Government told the ST&C it did not have any idea how many scientists will be lost to forensic science. Driving down the cost by the largest bulk customer will impact on the cost of forensic science to others such as defendants in the CJS who will not have the clout to get services at a competitive price and who are already battling reduced legal aid provision.
The survival intact - or at all - of the unique FSS archive built up over many years and carefully preserved remains in doubt. It houses more than 1.7 million cases files and these records are regularly used to investigate unsolved crimes and review miscarriages of justice. The government declines to say what will happen to it but 'the Home Office will act as a guardian of the archive'. It would like a financial solution that does not require government funding (it's called 'examining the business case'). Its preservation will require ongoing costs of warehousing, careful preservation and management. Government says this will cost £2m a year. Forensic scientists say £2m a month would be closer to the mark.
If it was decided to close the archive, and the preliminary step the government has taken in preparation for this is to prevent any new material being added to it, then the alternative is either destruction or the return of the material to the forces that provided it; most of whom have no facilities or expertise for long-term protection and preservation (even if they could afford it). Those forces are now expected to keep material relating to crimes since the closure of the FSS but there are no published regulations and so it will be a lottery as to whether they do - and what material is retained.
They can chose to ask the PFSPs to store it but that will cost them. The FSS archive was maintained without cost to the police. The level of understanding in the police is demonstrated by the example of a chief superintendent in a small force being told to buy a couple of freezers to keep exhibits in them. The chances of the many cold cases that remain being resolved will be negligible and a large and irreplaceable collection of evidence will be lost. The victims of miscarriages of justice will languish in prison.
A survey of forensic scientists carried out by the New Scientist found that 78% of them thought that miscarriages of justice will increase. Seventy per cent felt that there will be a reduction in the impartiality of the interpretation of evidence; 65% of them felt that it would make it harder for defence teams to challenge the interpretation of evidence and a similar number felt that there will be a lessening of openness and transparency by forensic scientists employed by PFSPs.
The other concerns are:
- The fragmentation of exhibits with part going to one provider and part to another and/or a failure to provide information known to police about the circumstances relevant to any forensic assessment with the consequent difficulty of interpretation;
- The fall in submissions to PFSPs by the police who will be their principal customer, which might cause the PFSPs to withdraw from provision of such forensic services;
- Reduced submissions reducing the need for expertise in certain areas. The McFarlane Report into the death of Stephen Lawrence stated that the FSS must be provided with more funding to increase research;
- Research being focused on areas that give the best commercial advantage;
- Whether in the absence of enforceable regulation intellectual property rights will override the disclosure requirements;
- The impact of the police ability to drive down the cost to them of FS services with a strong likelihood that the cost will rise for less able consumers;
- The fact that in-house police labs will not be available to the defence;
- The fact that PFSPs instructed by the police will not be able to enter in dialogue with the defence because of contractual obligations;
- Co-ordination of evidence in cases since 2010 will be well nigh impossible and thus serial offenders are very likely to escape detection.
The single most effective way to ensure that the debris from this act of vandalism is collected and formed into a coherent entity is to give the Forensic Science Regulator statutory powers to regulate this area. The government, you will not be surprised to learn, does not see the need for this.
Alastair Logan represented the Guildford Four and is a member of the Law Society's international human rights committee