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

Lord Griffiths of Fforestfach Excerpts

Monday 26th April 2021 Grand Committee

[Lord Griffiths of Fforestfach (Con)]

It is a great pleasure to have been a member of the Select Committee on Science and Technology at the time we undertook this investigation. In this context, I thank the noble Lord, Lord Patel, for his outstanding leadership. He was relentless and courageous in getting to the root of the problem. I hope that he feels as a result that we served him well. I also thank the excellent contribution that our special adviser, Professor Ruth Morgan, made, not just when we were meeting but with what she handed out as preparation for today’s debate.

At the outset, I make one point—namely, to draw attention to the seriousness of the issue we are debating. In the United Kingdom, we live in countries that uphold the rule of law and have a legal system that aspires to deliver justice. As we wrote in the report, the integrity and accuracy of evidence is critical to ensuring public trust in our system. If that trust ever drains away, the consequences for our society will be enormous. Therefore, it is very important to stress that securing justice is really at the core of what we are doing. It is not simply about the police having a very successful record of prosecutions, entrepreneurs believing that the private sector should be intimately involved in provision or the science community feeling that the development of science is critical. What really matters is the reliability and accuracy of forensic science in providing public confidence in our system.

In this context, I shall make three points. First, we made it very clear in our report that the fundamental weakness of the current system was at the highest level—namely, to do with the relations between the Home Secretary and the Secretary of State for Justice. We concluded that there was a lack of leadership providing a vision, strategy and agenda for the whole of the forensic science service. We said that we really need one umbrella that covers policing, the judiciary and the defence community. We heard again and again, as we have heard this afternoon, that the parent system is too fragmented, with parts entrenched in silos. As a result, the quality of forensic science is not at present fit for purpose nor up to our traditional reputation.

That recommendation, which is foundational to our report, was based on the evidence we received from Ministers, although they may not have been as blunt as I have been today, and from the Forensic Science Regulator. One week before our report was published, the Home Office published a review of forensic science, the primary focus of which was the management of the market, but in addition it said that it recognised a broader set of issues which would have a significant impact on shareholders’ confidence in the system. Then the Government, in their response to our report, mentioned that they had set up a steering committee, jointly chaired by the Home Office and the Ministry of Justice, but its primary focus was the operation of the market. More recently, as we heard from the noble Lord, Lord Patel, the Criminal Justice Board last year set up the forensic sub-group to oversee the issue.

In my judgment, all of that falls short of setting up what we were recommending—a forensic science board. I do not know why that is. It may be that the departments have other, more urgent matters of business, which I could understand, that they need more time, or that they face the challenge of persuading some of those who are in quite deep and well-protected silos of the need for change. Are the interests of the judicial system and the defence community, alongside the police, adequate to establish what we set out to achieve in this review?

A second issue I will draw attention to is the market for forensic services, which has been described today as dysfunctional and in evidence to us as unstable. This is not straightforward, but, if we look back, I believe that three trends have become apparent. One is that in-house provision by the police has kept increasing over the past 10 years, so that by now, 80% of forensic science is conducted in-house by employees of police forces, and only 20% by marketplace provision. This trend was commented on in the House of Commons report on the closure of the Forensic Science Service back in 2011, when the police had, at most, 40%. The Commons committee made a strong recommendation that it should be prevented from increasing. Clearly, since that time, it has gone on increasing.

The second trend is the charge of serious market fragility and instability. By this I think people mean that we have here a sector in which a small number of large firms are undercapitalised. Some have withdrawn or gone into administration. Little investment seems to have been made in innovation and there has been a loss of skills from the profession. When police forces join together, they act as a monopoly buyer—a monopsony—to drive down prices excessively, as the noble Lord, Lord Mair, mentioned. A commoditised model for procurement that places undue weighting on price and less on quality of service means that we are not getting the kind of value for money that we are looking for. Finally, long-term contracts covering large areas will squeeze out small providers.

The third trend, which has been noticeable over recent years, is the cut to budgets. If you want a vital private sector, there must be resources in it, and those who are purchasing have to put funds into it. However, what we see here is great uncertainty over the structure and the future of investment in this business, and the question I ask myself is: if I were a private investor—which I am not—in the area of science and biotechnology and so on and knew something about the business, would I put money into this? There is so much uncertainty at present surrounding this market.

Despite these criticisms, it is important to note that in the report we make it very clear that we did not hear convincing arguments in favour of resurrecting the Forensic Science Service, which was closed down in 2012 and was a completely state-owned, commercial organisation. What we did recommend—I am delighted that the Government have taken this on board—was an expanded role for the Forensic Science Regulator, especially in relation to the procurement process, to avoid the clustering of contracts and maintain the capabilities of small providers.

The question for the Minister is: does she not feel that, if we are to have a competitive market in which there is a stream of new ideas and innovation, the extent of in-house police provision needs to be not only halted but cut back in the way that the House of Commons Select Committee was recommending 10 years ago? I do not say this from an ideological perspective. If provision by the police is more effective, so be it—let us have it. But I have a nagging suspicion that this trend will not produce the innovation that a more open marketplace would provide.

My final, brief point is on the importance of the defence community, alongside policing and alongside the courts, and the need for symmetry in funding between prosecution and defence. This point was made powerfully by one witness, barrister Carl Harrison, who said that in his career he had been commissioned by the police as the prosecuting authority 160 times and by defence counsel only three times. He concluded that this reflected the level of funding available to challenge specialist forensic evidence. The point was also made powerfully in the six letters between the Ministry of Justice and the representatives of Keith Borer Consultants that were provided for us by Ruth Morgan in advance of this debate.

The increase in funding from £35 million to £51 million is certainly welcome but, if defence-focused organisations are to be able to recruit, train and retain high-calibre individuals, more funding will be needed, and this will be another important item on the agenda of a regulator with statutory powers.