A forensic look

The Home Office's announcement before Christmas that it was winding down the Forensic Science Service (FSS) provoked some strong protests, including a letter to The Times from 33 eminent forensic scientists. Nonetheless, the decision is the right one. There is no reason why forensic science services should be controlled by the state. On the contrary, it can be argued that it is inimical to a fair and impartial justice system, which requires a separate and independent judiciary with the power to summon expert witnesses whose overriding duty is to the court. In any case, most expert witnesses (which is what forensic scientists are) are independently employed medics, psychologists, consultants, engineers, soil scientists, chemists, and the like. Fears have been expressed that without the FSS, capacity will be insufficient to meet the demands of the police and the courts. This is not a danger. The Home Office's intention is to sell on the viable parts of the business, the value of which lies in retaining the skills of FSS scientists. For years the FSS was a virtual monopoly (in 2002 it had nearly 90% market share), but even then there were a number of established competitors, who became increasingly successful once the government had opened out the police market by removing the FSS' 'preferred supplier' status. A lack of investment The challenge to the FSS to adapt or die was a big ask while it remained in the public sector. In the event, starved of necessary investment, it was ill-equipped to operate successfully in a fully commercial environment. The FSS' annual accounts to March 2010 tell the story: on sales of £113m, a figure 25% down in real terms from 2002, there is an operating loss of £12.7m. The irony is that a good part of the FSS' woes are due to Home Office pressure on police costs. The police have taken a much more rigorous approach to submitting evidential samples to external forensic science providers. Thus from an earlier assumption that the demand for forensic science services would continue to grow, the police are now forecasting that their expenditure on external forensic suppliers will continue to fall. To support the changed approach, the police and particularly the larger forces have invested in laboratory facilities and employed more qualified forensic scientists. They carry out a lot of the preliminary analysis themselves and work closely with the Crown Prosecution Service to identify what is crucial to an investigation. On the face of it this is a good thing; the police save money and time, and maintain greater control over the investigative process. The downside There are however downsides. One reason for the drop in demand is that for relatively minor offences, such as low-level burglary or car break-ins, the prevailing police view seems to be that the results from forensic examination do not justify the cost. More importantly, one has to question whether it is right that the police are the sole arbiters of what scene of crime samples are sent for analysis and what discarded. Defence lawyers can and do commission forensic work, but in practice the defence usually has little option but to rely on the impartiality of the forensic practitioner used by the prosecution. The most worrying possibility, however, is that police forensic experts could appear in court as expert witnesses. There is a precedent; the police have traditionally been acceptable expert witnesses for fingerprint identification, the most potent forensic evidence of all, a practice which judges should have stamped out years ago. The criminal procedure rules, laid down following the review by Lord Justice Auld in 2001, specify that the expert's duty to the court overrides "any obligation to the person…by whom he is paid". However it is stretching credulity that this could remain meaningful if the expert owes his career to a police service which, in an adversarial court system, is intent on securing a conviction. In theory, the Forensic Science Regulator provides some protection from abuse but disconcertingly, after nearly 10 years, a code of practice for forensic practitioners is still only in draft form. In the last analysis, who appears before the court as an expert witness is entirely a matter for the judges. One can only trust that they will be eternally vigilant. The issue of public concern then is not whether the FSS exists or not, but how to ensure the quality, integrity and, above all, impartiality of the work done by forensic experts right through from their attendance at the crime scene to their testimony in court. Robert McFarland led an independent review of the Forensic Science Service in 2002-3.