Forensic Science and the Criminal Justice System (S&T Committee Report)

Lord Fox Excerpts

Monday 26th April 2021 Grand Committee

[Lord Fox (LD)]

My Lords, I often start speeches by saying that it is an honour to follow this or that noble Lord, but I have to say that it is absolutely a great honour to follow the expertise that we have heard already, led off by the outstanding speech by the noble Lord, Lord Patel—a counterpoint to his outstanding leadership of the committee in producing this report.

We are here today to celebrate the second birthday of this report. It was published in April 2019, when I was a member of the Science and Technology Committee. The Government responded in July 2019, and it is safe to say that some water has passed under the bridge since that summer. The first thing was the general election in 2019 and then, of course, Covid. The general election means that in fact the Government are a different Conservative Government from the one who made the initial response, although I note that the Minister has remained the same. I therefore assume that the Minister stands by the response that was made by that different Conservative Government and that we are not, as in other cases, dealing with a distancing.

When it comes to the pandemic, the criminal justice system has, like all aspects of public life, come under extreme pressure. The backdrop for discussing this could hardly be more difficult, and that is not only because of the virus. The Lords Constitution Committee set out the issues last month. The pandemic, it said, has left the court system in England and Wales in “crisis”, with a backlog of cases that could take years to clear. Importantly, it also said that a decade of cuts has meant that the court system was already in a “vulnerable” state when the disease outbreak occurred last year. It continued:

“Without adequate resources, technology or guidance, our much cherished justice system remains at risk.”


That report very much reinforces the situation that we are discussing today about the forensic science service. I hope that Covid is not used as an excuse for where we are now.

In their response to the report, the Government were clear:

“The Government agrees that the ‘delivery of justice depends on the integrity and accuracy of evidence’.”


They also said that

“our top priority is to prevent miscarriages of justice.”

Those are both very reassuring comments but, of course, without willing the means, they are quite flimsy. We should therefore ask the Minister whether she thinks the Government are doing everything possible to ensure that evidence is as accurate as possible and whether they are doing all they can to avoid miscarriages of justice. If the noble Baroness, Lady Williams, is frank, as she usually is, I am sure she will be able to indicate that there is work to be done, and it would be important to indicate what the timeline for that work is. Not to put too fine a point on it, as other noble Lords have mentioned, more often than not, justice hinges on forensic evidence. If the evidence is inaccurate or inadequate, justice is compromised, and, as many of your Lordships have said, once confidence in the evidence goes, confidence in the whole justice system is compromised, and that is central to our democracy.

I hasten to add that, thanks to the dedication and hard work of many practitioners, that terrible situation is largely avoided. But I ask the Minister: what about the environment these people work in? Does it have the finance it needs? Does it have leadership? Does it have a structured approach to standards? Is it doing the necessary work to embrace the future? Is there equal access to necessary services?

Many of these points have been covered by other noble Lords, so I apologise for some repetition, but I am going to take each of them in turn. There will be many questions; indeed, there already have been. I hope the Minister will undertake not just to answer as many as possible in her verbal response, but to answer them in writing, and to publish the answers in the Library. She is nodding, which is very helpful.

First, does the forensic science service have the finance it needs? We have heard what the Constitution Committee said about the whole justice system, and of course the forensic science service has not escaped. As the noble Lord, Lord Mair, said, in 2010 some £120 million was spent on forensic science, but in 2019 that had dropped to £50 million to £55 million. Can the Minister tell us what the budget for this year and next year is?

In the Government’s response on the issue of market stability, the role of a special team set up by the National Police Chiefs’ Council within the forensics capability network was highlighted. That team, they said, was going to co-operate across police forces and

“manage commercial strategy; manage contracts; co-ordinate capability building and provides long-range demand forecasts.”

The noble Lord, Lord Griffiths, who is sitting opposite me, knows more about markets than most people, and I hope that the Minister will study carefully his critique of this situation. I had written down, “This is a good way of creating a more effective monopsony”—and that is exactly what is happening. It does not help the structure of the service providers one iota.

What has this body actually done? How many police forces have now bought into the network—and, by exclusion, how many have not bought in? What concrete initiatives have we seen over the past two years in terms of the market, and market structure? How do the Government assess the stability of the market—or who do they rely on to make that assessment for them? I think it was the noble Lord, Lord Winston, who said that some private sector companies had adapted their services to the Covid situation. We need to study this on pure forensic service terms.

The Government also committed to provide

“all budget holders with data and measures to assess the impact of forensics spend on outcomes in the criminal justice system.”

I find that a very intriguing sentence. What outcomes are being targeted? Is it pounds per conviction, or what? What data, what measures, are the Government providing to budget holders, and when will those measures and that data be published?

The second issue is leadership. We have heard categorically from many speakers how our proposal for the creation of a forensic science board was designed to create strategic focus. I am not surprised that Her Majesty’s Government damned the idea with faint praise—or rather, with no praise at all. What they offer instead is an alphabet soup. We have the MoJ, the Home Office, the National Police Chiefs’ Council, the Forensic Capability Network, the College of Policing, the criminal justice boards, UKAS, the Chartered Society of Forensic Sciences, UKRI, the Forensic Science Regulator and, of course, all the companies in the private sector providing the service. I am sure I have missed some out. I have one simple question for the Minister: in the regrettable instance of a miscarriage of justice due to a problem with the forensic evidence, where does accountability lie? With whom does the buck stop?

My third question is: does forensics have a structured approach to standards? In this area I am uncharacteristically optimistic, or I have been led to be optimistic by the noble Earl, Lord Lindsay, who set out the work the regulator is doing with UKAS. However, as other noble Lords have said, the regulator needs the powers and the resources. It would be helpful if the Minister could say where those resources are going to come from—because if they came from a levy, that would be levying an already impoverished sector.

Is the forensic service doing the necessary work to embrace the future? That is a debate unto itself, and we have heard phenomenal contributions from some of your Lordships. The Government’s response raises the prospect of a document that the Forensic Capability Network is creating, a five-year road map to prioritise rapid development in key areas such as DNA and digital innovation. I looked for this document and could not find it. Does it exist? If it does not, can the Minister confirm which five years it is supposed to cover? If it does, can he explain where we might find it?

Finally, is there equal access to the necessary services? This is the most vital single issue. Without equal access, we do not have equal access to justice and without justice we do not have democracy. The report set out the issue of access to forensics for defendants, particularly those on legal aid. As we have heard, the Government said that they were not aware of legally aided defendants being denied access to forensic testing and expert advice for funding reasons. That flies in the face of the evidence that we heard. The chairman of the committee, the noble Lord, Lord Patel, set out a clear case as to why the Government should be concerned about this.

The noble Lord, Lord Griffiths, talked about asymmetry in the market, and there is a very important asymmetry that we have not talked about yet in detail. It concerns the availability of service, and here I cite none other than the website of the Forensic Science Network itself. On the homepage of the network—and in a minute we will remind ourselves how important it is to the Government—it says:

“Welcome to the new network for forensic science in England and Wales, supporting more than 4,000 specialists with critical services, advice and technology.”


So far, so good. We then come to the strapline:

“FCN is the UK’s largest forensic science network—for policing, by policing.”


Watch those words. It reinforces this elsewhere, as is clear if you dive into the question of its purpose. It says that it

“provides much of the evidence that can identify and bring offenders to justice.”

It characterises forensics in that way, while I and the rest of the committee characterise forensics as bringing justice to a court proceeding. That is not the line the FCN takes.

Let us remind ourselves that this is the FCN that is tasked to set out strategies, as we have heard earlier, and that is managing the market for forensics. The noble and learned Lord, Lord Thomas, spoke about the need for independence. This is in no shape or form independence. An independent forensic service is one way of going about gaining that independence; this report goes another way and talks about having a structure that delivers independence. I conclude that this service has not delivered, and not just because of financial starvation; structurally, there is a big problem in the middle of the way this service is delivered, and the Government should very carefully look at this debate and this report.