Written evidence submitted by Forensic Access Ltd (FSS024)

Declaration of Interest

Forensic Access

Forensic Access is a private company which has been supplying forensic science services to the Criminal Justice System since 1986.  With laboratories at Oxford and York it provides full casework services to investigators and legal teams for both prosecution and defence.

Principal Authors

Professor Angela Gallop – former FSS scientist, 1986 established Forensic Access to promote a better balance between prosecution and defence, 1997 co-founded Forensic Alliance as the first full scale alternative to FSS, 2005 helped create LGC Forensics (incorporating Forensic Alliance) to draw in science from the wider scientific community, 2010 co-founded Axiom International to spread UK forensic expertise internationally, currently CE of Axiom International and Forensic Access. Also established and personally led the scientific teams who helped to solve many high profile cases including Damilola Taylor, Rachel Nickell, Coastal Path murders and Stephen Lawrence

Roger Robson – former FSS, Forensic Alliance and LGC Forensics scientist and latterly Operations Manager, MD of Forensic Access and one of the most experienced forensic textile fibre experts in the UK – eg. leading the textile fibre work in Coastal Path and related murders

Dr Philip Avenell – former FSS, Forensic Alliance and LGC Forensics scientist including Head of Science Quality and R&D, now principal scientist with Axiom International and Forensic Access and a distinguished DNA scientist – eg. leading the DNA work in Coastal Path and related murders

Wendy Nathan – FD of Forensic Alliance, then LGC Forensics and now Forensic Access, with long experience of the development of the forensic market.

1. Does the Government have an effective strategy for forensic science in the UK and is it sufficient to support forensic science R&D and criminal justice?

1.             No, or if it does, it is not working. One aim was to open up the forensic market, stimulating competition and innovation. It is more difficult than ever to gain a foothold in the market, and one provider is now larger than the FSS was.

2.             The UK is unusual in having developed a market for forensic science services. This resulted from a 1991 decision to devolve central funding to individual police forces to help cut forensic backlogs which were affecting the smooth delivery of criminal justice.

3.             The market has been very successful with competition driving innovation in both the nature and delivery of services. Backlogs disappeared, prices dropped substantially, turnround times for the work reduced significantly and a number of particularly intractable criminal cases were solved.

4.             Despite substantial investment, the FSS failed to transform itself into a competent competitor and this ultimately led to the closure decision. What seems abundantly clear is that Government attention has been focused too heavily on the FSS and too little on what has been happening to the rest of the forensic market.

5.             There are three main issues posing serious threats to the reliability of forensic science and therefore the integrity of our criminal justice system. The first concerns the way forensic services are procured, the second, insourcing by police forces, and the third, the fact that forensic scientists have two customers with different requirements – the police and the courts, yet only one of them - the police, holds the purse strings.

Procurement

6.             This is dealt with under Question 6. Suffice it to say here that while the current system is sufficient for routine cases, it is far too proscriptive for anything more complex. It is de-skilling scientists and turning their laboratories into nothing more than routine testing houses to the extent that critical skills will be lost to the UK.

Insourcing by police

7.             Insourcing is becoming increasingly popular in the belief that it is more cost effective and allows better control over work done by external providers. This defies trends in all other industries which, if replicated here, might suggest outsourcing scenes of crime and fingerprints, not insourcing forensic science.

8.             Some forces use providers merely for complex analytical tests, conducting all the rest of the work themselves. Risks inherent in arrangements which fragment effort in individual cases and on individual items and where the customer dictates precisely what the specialist should do include to:

• Reliability of evidence through increased risk of contamination and compromised continuity (chain of custody of items)
• Quality of evidence because police laboratories do not have to be accredited to the same Quality standards as external providers 
• Strength and safety of evidence because no one scientist understands all aspects of the evidence which they are reporting; they may miss important clues or misinterpret others
• Breadth and depth of expertise, and creativity available from forensic providers if this is no longer used

• Quality of science as the best scientists seek more satisfying jobs elsewhere

9.             There is also the critical matter of whether it is appropriate for organisations charged with investigating crimes, also to provide impartial scientific evidence in respect of them. This is more complex than it sounds. For instance, simple decisions about which items to examine and for what can markedly influence evidential outcomes. There is little chance that any shortcomings will be picked up by scientists advising the defence as this work is even more poorly funded.

10.          Of relevance here is the 2009 National Academy of Sciences (NAS) report on forensic science in the US which called explicitly for the organisational separation of forensic science provision from the law enforcement agencies themselves.

Customers, police -v- courts

11.          Police are concerned primarily with investigation and prosecution, the courts with maintaining a balance between prosecution and defence. With police in almost sole charge of the funding, there is too little emphasis on the requirements of CPS and defence teams.

12.          Forensic advice for defence teams provides a critical safety net against miscarriages of justice, but this is full of holes through long term and worsening lack of funding.

13.          Closure of the FSS resulted in more operational forensic scientists employed in universities, providing a more relevant focus for university based forensic research. However, the funding traditionally provided by the Home Office for research and development has disappeared with the FSS who benefitted from it, and no equivalent arrangements have been put in place. Suppliers cannot provide all the funds necessary because profit margins have been driven so low by the ‘productising’ of forensics.

14.          While some useful international funding is available for work through collaborative networks, this tends to be for large, long term projects producing results that then need substantial development before being acceptable for use at court. 

2. Did the FSS transition and closure run smoothly and within budget?

15.          The transition period was too short bearing in mind the extent and complexities of the activities to be transferred to other providers and the sheer volume of work involved.

16.          The transfer process was so opaque that it was not clear what opportunities might be available so meaningful proposals could be submitted. In the end, one supplier benefitted disproportionately to the extent that it now has a larger share of the market than the FSS. Some of the benefits it enjoys may well persist through the next tender round which could lead to suggestions of unfairness in public procurement. An important opportunity to make the market professionally richer and more resilient was lost.

17.          Exacerbating the transition process was providers’ nervousness about dangerously low margins and increasing insourcing by police. This would have made them cautious about how many FSS scientists they took on and favour less experienced, cheaper ones.

3. What impacts have the FSS’s closure had on (i) the criminal justice system? and (ii) forensic R&D and training? In particular, have the appropriate quality standards and accreditation been rigorously maintained?

18.          Appropriate quality standards and accreditation have been maintained by external providers because they are a necessary pre-condition to obtaining work from the police. Bizarrely, the increasing work transferred from them to police laboratories does not have to meet the same standards. This is both dangerous and unfair.

19.          But quality is about much more than accreditation to specific quality standards. Other factors critically affecting quality and largely unconnected with closure of the FSS include:

• Quality of crime scene examination
• Decisions about what to examine/analyse for what and in which order
• Extent to which analytical results can be interpreted within procurement products
• Fragmentation of effort between police/providers
• Communication of results to the layman

20.          The impact of FSS closure has been more to do with the nature and speed of closure than the fact of it. In particular, this:

• Put pressure on other suppliers to take on more work more quickly, increasing risk of mistakes
• Created turbulence in the (fragile) market when mistakes were made and other contracts lost as a result
• Exposed cases transferred half completed to poor quality decision making through ignorance of all the facts and potential differences of approach
• Reduced at a stroke the number of experienced operational forensic scientists and therefore perhaps overall quality 
• Persuaded some forces to insource more of the work themselves to protect supply -
• De-skilling at least some scientists by restricting them to a narrower range of activity

21.          There has been a myth that only FSS scientists were capable of solving the most difficult cases, but history tells a different story. For many years now other forensic suppliers have been distinguishing themselves both in service delivery and quality.

22.          For example, Forensic Alliance, now LGC Forensics was instrumental in solving a number of the most complex cases in recent criminal history including Damilola Taylor, Rachel Nickell (finally exonerating Colin Stagg), Lynette White (finally exonerating The Cardiff Three) and The Coastal Path and Stephen Lawrence murders.

23.          Some of these cases highlighted flaws in the original FSS work. For example, in one case inappropriate assumptions in low template DNA analysis (LCN) resulted in critical evidence being missed. This led to the large scale re-analysis of samples in a substantial number of other historic cases, resulting in some more being belatedly solved.

24.               The Home Office funded a considerable amount of the FSS’s research and development. No recognisable alternative arrangements have been put in place now the FSS has gone. To this extent, arguably the most important source of research funding has been withdrawn from forensic science ‘overnight’.

25.          Other providers continue to be as imaginative as possible about how to get the most from money devoted to R&D, eg. through innovative collaborations with universities and industry. They have shown they are just as capable of producing ground breaking innovations – currently including rapid on-site DNA testing. But, like the FSS, they cannot be expected to do so without additional funding especially as their partner organisations are also under the financial cosh.

26.          There is a procurement contract requirement for providers to share financial R&D benefits with police. Ostensibly a good way of driving additional public sector savings, this is manifestly unfair to providers who fund all the research and then have to share ‘IP’ before recovering their inputs. It actively discourages innovation.

27.          FSS closure is unlikely to have any real impact on training because virtually all external suppliers insist on training their own staff and are well equipped to do so. Because of the less stringent requirements of police laboratories, the same may not be true in all of these.

4. What should be the role of the Forensic Science Regulator?

28.          The Regulator’s role should be to ensure that scientific information provided to investigators and as evidence at court is soundly based, reliable, balanced and impartial. Where concerns arise, the Regulator should ensure these are dealt with swiftly and effectively and ramifications for other cases, recognised and addressed.

29.          To achieve this, the Regulator needs to be satisfied that all organisations playing any part in the forensic ‘crime scene to court’ process are competent to do so in all respects. The current situation is courting disaster with no mandatory requirement for police laboratories to be accredited, and fingerprints still outside the quality envelope applied to the rest of forensic science.

30.          But accreditation alone is not sufficient. For instance, where work is fragmented between different providers - including the police themselves, the Regulator needs to be satisfied there are no adverse consequences for quality and safety of evidence, and no corners have been cut because of budgetary restrictions and/or quality of commissioning, or overly competitive behaviour between providers.

31.          It seems clear that to achieve all this, the Regulator requires stronger and perhaps wider powers than currently at his disposal.

5. What is the size of the forensics market and how stable is it?

32.          We estimate the current size of the forensic market to be in the region of £320m with £120m outsourced and the rest serviced by the police themselves. The outsourced market has shrunk from approximately £200m 5 years ago and will dip below £100m very soon.

33.          Reducing market size, low profit margins, risks from large swings in workload combined with the high profile criticism any errors attract, and difficulties for new market entrants to win work, all conspire to make it increasingly unattractive for investment. This is reflected in the apparent lack of interest from firms in tendering for the FSS business, and the withdrawal of large organisations such as Eurofins and Central Science Laboratory, who failed to make any headway despite having invested substantial sums of money in UK forensics.

6. How are forensic science services procured by police forces and could procurement processes be improved?

34.          External providers of forensic services to police forces have to be approved suppliers to a National framework. For economies of scale and buying power, forces are increasingly collaborating regionally to tender their forensic work. At the heart of the tendering process are a series of ‘products’, each one describing a complex set of activities and possible
    outcomes, with a number of entry and exit points and prices associated with each of these.  Required quality (standards) and turnround times are specified so emphasis is on price. Forensic Access recently tendered services covering 536 products (of 735 in total) involving 7,416 individual prices (some duplicated).  This gives an idea of the complexity of the process.

35.          Despite best efforts of the National Police Improvement Agency (NPIA), different forces, even within the same regional grouping, tend to require services delivered in slightly different ways which increases levels of complexity further.

36.          On average, the successful tenderer will be given about 3 months to gear up for what are often huge amounts of work. Firms losing the work have to downsize very rapidly to minimise unnecessary overheads once the work has gone. These large swings in workload between suppliers can be very destabilising and will encourage mistakes.

37.          Such commoditised procurement may enable individual forces to keep tight control of costs, although the complexity encourages constant debate about charging. But the system is very inflexible, it actively prevents scientists from talking directly with investigators, it discourages innovation because it is so proscriptive, and assumes submissions officers always know precisely what they require from scientists. While this might be true in routine cases, it is most unlikely with more complex investigations, risking missed or misinterpreted evidence and/or a more expensive process than necessary.

38.          What is needed, at least for more complex cases, is a much simpler system which still allows police to tender on a large scale and at case level to keep full control of costs, but ensures that scientists have proper input into what might most usefully be done.

39.          There are probably several ways in which this could be achieved. One would be through use of a matrix in which police record case type, and aspects indicating the seriousness of the offence and level of complexity likely to be encountered, and therefore the likely extent of forensic input needed. This matrix could be linked to secondary information from providers about average input required historically to help solve different categories of case which could, in turn, be used to calculate prices simply per case type.

40.          Such a system would have the added benefit of allowing investigators and scientists to return to discussing their cases directly with one another. The procurement system has driven a wedge between them with which neither are comfortable and which does not serve the interests of effective investigation or justice.

7. Has the closure of the FSS resulted in a loss of intellectual wealth through its scientists leaving the forensic science profession, or the UK?

41.          Closure of the FSS has inevitably led to the loss of intellectual wealth because not all scientists have been re-employed by other providers or established their own practices.

42. But even without closure, the FSS would probably have been forced to downsize to become properly competitive, so the net effect might have been much the same. The real drivers here, as we have seen, are the combined effects of a procurement system which is only interested in the lowest common denominator, and in-sourcing not all of which has involved taking on experienced scientists.

43. Loss of intellectual wealth is not just connected with the FSS closure. Voluntary redundancy in the mid 2000s removed many highly skilled staff and others have left more recently because they no longer find the work sufficiently satisfying.

8. Are current arrangements for the FSS’s archives satisfactory? How could arrangements for retention of case files and forensic materials in the UK be improved?

44. Current arrangements for accessing FSS data and evidential materials appear to be satisfactory although very slow. But it is not clear who is responsible for the archive.

45. Just as critical is the fate of evidential materials in current cases that are now routinely returned to the police for safe keeping. It is far from clear whether appropriate arrangements are being made for these and therefore the extent to which they would be suitable for re-examination if required.

46. The FSS had also collected a wealth of data and reference samples of materials examined over the years which could be extremely useful in improving interpretation of forensic findings. It is not clear where this is or how providers might be able to access it but this should be explored in the interests of improving justice.

Footnote

Although the demise of the FSS, and particularly the speed of it, contributed to current difficulties within the market, it was not the primary cause of them. Treating it as such will distract from the true causes and delay proper and urgently needed remedy.

January 2013