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

Lord Winston Excerpts

Monday 26th April 2021 Grand Committee

[Lord Winston (Lab) [V]]

My Lords, the noble Lord, Lord Patel, is to be warmly thanked for chairing the Science and Technology Select Committee so ably and for finally getting this Motion tabled. I declare that I was not a member of the committee when it produced its report, but I am now.

Forensic science in criminal justice is an extremely important topic and the recommendations of the committee are of grave concern. In this respect, it is regrettable that it has taken two years to debate this report. I suppose that one can at least say that not much has changed. We pride ourselves as a civilised society, at the heart of which is a stable democracy and a justice system which has rightly been internationally respected as a model. But it is obvious that major deficiencies have left some cruel results and great distress—or even worse—for a number of people, often entirely innocent citizens. The delay in doing something more about this is an underlying problem and it reflects extremely badly, in my view, on the Government.

I am going to address some of the issues that the noble Lord, Lord Mair, has already addressed, so I will illustrate my remarks in a slightly different way. I declare an interest as a member of the Centre for Data Ethics and Innovation. Last week, the conviction of Josephine Hamilton and others was quashed on appeal. This litigation involved evidence depending on an antiquated computer system and out-of-date software. Earlier, Mr Justice Fraser, in his written judgment, which extended to 313 pages, quashed the conviction of 39 sub-postmasters on the grounds that the commercial IT system, which was sold by Horizon and Fujitsu, was unfit for purpose, in spite of the Post Office’s assertions to the contrary.

The software was based on a long-unsupported version of Windows NT4, first launched in 1996. In computer parlance that is not merely equivalent to the description of Chancery and Jarndyce in Bleak House by Dickens; it is closer to the Middle English of The Friars Tale by Geoffrey Chaucer. The software was, in spite of denial by the Post Office, subject to bugs, errors and defects. To compound the seriousness, Mr Justice Fraser pointed out:

“To see a concern expressed … that, if a software bug in Horizon were to become widely known about, it might have a potential impact upon ‘ongoing legal cases’ where the integrity of Horizon Data was a central issue is a very concerning entry to read in a contemporaneous document”—


and I agree; it shows one of the problems with these commercial interests.

There is another problem apart from the commercial interests. Most reasonably educated people think of forensic evidence with the precision and scientific certainty often given in the media—in “Line of Duty”, “Broadchurch”, “The Fall”, “True Detective”; even “The Night Of” and “Silent Witness”. This has encouraged many people, including jurors, to consider some evidence not as circumstantial but as certain. This is certainly true of much biological evidence—for example DNA, to which I will return in a moment—and even to the gait of a person, the shape of a skull, the cause of a fire or the use of a partial fingerprint. In a sense, the importance of data and its analysis, as the noble Lord, Lord Mair, said, has now become increasingly central to the criminal justice system.

The increasing difficulty raised by the analysis of extensive data in criminal justice is well illustrated in the case of the Crown v Michael Richards, Robert Gold, Rodney Whiston-Dew and others. This commercial fraud involved over £200 million and had been initiated some 10 years earlier. It involved setting up projects promoting sham attempts at carbon sequestration overseas, a complex network of many wealthy investors, tax relief claims, offshore banking and extensive fraud involving the Inland Revenue.

During an earlier appeal heard by Sir Vivian Ramsey in 2013, the prosecution was stayed on the grounds of an abuse of process—partly because the prosecution had failed to comply with the duty of disclosure. There was a major difficulty. It is unnecessary to go into detail here, but the investigation and subsequent prosecution had required the seizure of 7 terabytes of information, 85 digital instruments and additional non-digital material, which took some years to analyse. After the devices were returned to the respondents, HMRC kept digital information on file and the respondents were then in a position to recreate the nature of their involvement.

Eventually it became clear to HMRC that the proprietary software needed to analyse all the digital information it had taken was served by FTW version 1.7 and it did not permit full optical character recognition. There were in all some 312,500 files, which were reviewed by people scrolling through thumbnail images. Subsequently, the information was migrated to a later version of FTW, version 3.4. This was equally unsatisfactory, because it required a lengthy process and there were continuing software problems. These deficiencies included, for example, the misplacement of attachments to emails.

In a subsequent hearing in the Court of Appeal Criminal Division chaired by Sir Brian Leveson in 2015, the earlier ruling was overturned. In some 33 pages, a very clearly expressed judgment was made by three judges. The appeal by the prosecution was allowed and the earlier stay was lifted. The case finally went to trial two years later, more than 10 years after HMRC had started its investigation. The key defendants were given lengthy prison sentences. The trial before Mr Justice Edis with the presentation of those data took 10 months, and it is notable that early in the trial one juror found that she was pregnant. She was finally delivered of a baby girl, Evie, before the trial finished.

Now, how much did this process cost? How much of the defrauded money was recovered? Perhaps the Minister might inform the Committee after this debate or perhaps write to me separately. With the increase in litigation involving commercial crime, as the noble Lord, Lord Mair, said, and organised crime, such as trafficking or illegal use of the internet, serious investment in digital technology and constant refurbishment of hardware and software are crucial, and the need for effective machine learning and artificial intelligence, as he has maintained very clearly, is essential.

I am just a doctor; I am not a lawyer—as my imperfect description of that last case will confirm. But I did promise to return to biology and DNA before I conclude. The excellent report from the Select Committee has detailed the inadequate provision for properly set up forensic laboratories, the questionable qualifications and training of many technical staff, and the expense and problems arising when commercial companies tender for contracts with the police. One example of problems that may arise is well illustrated by the Randox débacle.

Randox Testing Services advertises on the web, as I checked this afternoon, for workplace testing, medical-legal testing and Covid-19 antibodies and PCR. I have not yet been able to find out how much it charges for this, but its website claims that it has undertaken 17% of the Government’s national Covid testing. Apparently, the police used to outsource most of their toxicology testing to it, and it is claimed that some dishonest employees in its laboratories fabricated evidence of alcohol usage and 10,500 cases, mainly involving drink-driving, are being reanalysed. The cost and delays involved in this are considerable, and this investigation is still going on two years later. Retesting is apparently taking a long time because, we are told, there is a chronic shortage of scientific expertise and accredited laboratories, leading to delays in providing toxicology analysis in unrelated cases of sexual offence and rape. This is just one example of the Select Committee’s concern about outsourced laboratory testing in inadequately supervised commercial laboratories.

I conclude on the subject of DNA. In 1988, my own lab was refining PCR, the polymerase chain reaction, then an entirely new process, to test human embryos for possible sex-linked diseases and for any one of a number of 6,000 genetic diseases that cause serious or usually fatal disease in children and young people. It required exquisite care in dealing with the DNA from just one or two human cells. Indeed, many colleagues told me that this would be quite impossible; it is now used worldwide. All DNA of that kind, whether medical or forensic, requires—[Inaudible]—months if not years in our methods and redesign of at least one laboratory.

The problem of contamination is serious; it is also true of advanced spectroscopy, for example, when one is looking at chemical analysis of toxicological samples. With DNA, a tiny tube about 1 centimetre high can be contaminated by somebody touching apparatus nearby or coughing 30 metres away from the tube. We do not know how long DNA—a stable molecule, apparently—will survive on a given surface or how long it may be contaminated on a swab. DNA analysis has now become sophisticated and automated, but mistakes are still possible, particularly in untrained hands and in inadequate laboratories. Even in well-equipped premises that can happen. Many years ago, in a totally different experiment, a colleague and I voluntarily withdrew a paper that had already been accepted by the international journal Nature because we felt unsure that we could replicate our results after lengthy storage of the DNA on which we had run gels.

It is clear from this report that forensic science, yet another area in which the UK has led, is in dire straits, due to underfunding, poor regulation, inadequate training, limited university courses, which are seen as a cash cow, and scanty meaningful research. There are too few properly qualified individuals and a very wide range of forensic specialities. This report is commendable because it clearly outlines many of the key issues. As Sir Brian Leveson, who gave evidence to this inquiry, pointed out, inadequate or flawed forensics seriously undermine the system of British justice and the trust of the public.