Forensic Science Regulator and Biometrics Strategy Bill

Debate between Chris Green and Richard Fuller

2nd reading & 2nd reading: House of Commons
Friday 25th September 2020 Commons Chamber

[Chris Green]

The hon. Lady makes a fair point. When a direction of travel is set, it is sometimes difficult to change it around.

The Forensic Science Regulator, Dr Gillian Tully, in her foreword to the 2019 annual report, published earlier this year, sets out clearly and comprehensively what we ought to think about in the debate. I will therefore read from the foreword at length, which says:

“Whether it is data science, computer science, physics, chemistry, biology or another discipline, forensic science should be firmly rooted in good science. Courts should not have to judge whether this expert or that expert is ‘better’, but rather there should be a clear explanation of the scientific basis and data from which conclusions are drawn, and any relevant limitations. All forensic science must be conducted by competent forensic scientists, according to scientifically valid methods and be transparently reported, making very clear the limits of knowledge and/or methodology. Implementation of quality standards is a means to this end, ensuring a systematic approach to scientific validity, competence and quality. It therefore remains my absolute priority to publish a standard for the development of evaluation opinions, to ensure that this systematic approach to quality covers all scientific activities from crime scene to court.

Some practitioners and leaders understand quality. They may be (and indeed should be) challenging about the detail of how to adopt the standards and may rightly point out the need for additional resources. However, they seek to use the requirement to adhere to quality standards to innovate in terms of process and/or technology and, in doing so, they bring about positive change. Often, they are truly inspiring.

Others misunderstand. They may grudgingly implement standards, but in a way that cripples their productivity and locks staff into rigid protocols, no matter what the case requires. Or they may devote much time and energy to avoiding compliance, arguing against change and sticking to ‘how we’ve always done it’. The problem is that technology has moved on. ‘How we used to take anti-contamination precautions’”—

for example,—

“is no longer fit for purpose in a world where the sensitivity of DNA methods has increased by several orders of magnitude.

My hon. Friend the Member for Christchurch (Sir Christopher Chope) is not currently in his place, but, on his point, perhaps with ever-changing technology and a need for higher levels of technology, there is a requirement for additional resources in this area, not just in general but for the regulator and her team.

The foreword continues:

“‘How we used to do digital forensics’ is no longer fit for purpose in a world where data volume and complexity have ballooned, and a substantial subset of the data required is in the cloud. Throwing massive volumes of extracted data to investigators, who generally lack the tools and methods to interrogate the data effectively, just shifts a problem; a more integrated approach could be transformative.

Leadership and innovation are critical, because trying to transpose quality standards onto ineffective processes without change only succeeds in adding inefficiency to ineffectiveness.

Whilst the body of this report deals with the year to 16 November 2019, the foreword presents an opportunity to comment on more recent events and I am pleased to note that the Government has committed to investing approximately £28 million over a year to improve forensic science, via the Transforming Forensics Programme. It will be a massive challenge for the programme to deliver effective change, but it is my hope that the work will design quality into innovative approaches, in a way that brings together the best of the public and private sectors and academia.

A new government has been elected and I have been assured that there is no change from the policy to legislate to provide statutory enforcement powers for the Regulator. I am, however, disappointed to note that there is, as yet, no definite plan for government legislation. I therefore welcome the Forensic Science Regulator and Biometrics Strategy Private Member’s Bill, proposed by Darren Jones, MP. The delay in legislating has, without doubt, resulted in slower progress towards compliance with quality standards, particularly in very small companies and police forces. Nonetheless, there is much learning from the progress thus far and this is reflected in my priorities around assisting with and improving the adoption of standards.

I will continue to lobby for change to ensure that the policies for commissioning forensic science support the provision of high quality forensic science. That has two main elements: the first is that those making case-specific commissioning decisions do so in a knowledgeable, collaborative and outcome-based manner, proportionate to the seriousness of the case and the potential for forensic science to contribute to criminal justice outcomes. I therefore welcome a new project, in the”—

Home Office,—

“that aims to better quantify the impact of forensic science in the Criminal Justice System. The second element is to ensure that a longer-term strategy for sustainable provision of high quality forensic science is developed as a matter of urgency. The pricing uplifts put in place to stabilise the market this year were the beginning but not the end of this process and I have recently been made aware of concerns in the digital forensics community about unsustainable pricing, driven by high weighting on price in procurement. We must not go back into a spiral of unsustainability.”

The sense of a spiral of unsustainability is incredibly important for the future, for the resources are allocated, encouraged and supported through the regulator and for those that police forces around the country allocate to different parts of what they deliver on justice and policing. This cannot be as underfunded as it has been. Ground needs to be regained.

Fundamentally, this is about the credibility of a significant body of evidence that should be used to convict the guilty and, in many cases, set the innocent free. Without rigour and the statutory enforcement power to back it up, too often, we will not see justice delivered and law and order upheld. In recent times, there have been a couple of very significant instances where we have seen failures in the system, if not necessarily in the market, and we have to be careful even though they are market providers—I am thinking of the failures of Randox and Key Forensic Services. Fundamentally, these could and perhaps should be seen more in the context of a lack of oversight, or a lack of ability to enforce concerns in the oversight position, as opposed necessarily to being a failure of the private sector. Whether we are talking about the police forces and their forensic units, or the market forensic units outside the police forces, they are all under pressure and under constraints, so we ought not to use Randox and Key Forensic Services as case studies against the market sector. However, we can reflect on the impact that those cases have had and how we should go forward.

Many thousands of cases are affected when a laboratory, in whichever way, goes wrong. Thousands of samples may not be analysed in the right way or may be contaminated, and that can have an impact on trials. In some cases, the guilty can get off; in other cases, the innocent may be found guilty.

We can just imagine the circumstances if someone who needs to drive for their living is convicted of drug-driving and can no longer do their job. That has a massive impact on them personally—perhaps they have to switch jobs or they become unemployed—it has an impact on their ability to look after their family and pay their mortgage, and it will have an impact on family life. Even though in many ways this issue can seem abstract and niche in its concerns, it has an impact, because law and order and the courts system have such a wide impact on so many people’s lives right around the country. That is an important reason why we need to tighten regulatory oversight.

There are two broad categories for forensic science: trace forensics, which is perhaps what people will be familiar with, thinking of DNA, fingerprints and drug samples, and digital forensics, which looks at computers, smartphones, mobile devices and social media. Increasingly, there are concerns about cloud computing and the colossal volumes of data we produce these days. It is thought that about 90% of crime has a digital element and, hearing the awful news of what happened in Croydon overnight, we can be pretty sure that there will be a significant forensics contribution to that investigation.

That digital element can expand to cover many different areas, including CCTV and cyber-attacks. I was startled to read that the average British household now has on average 7.4 digital-enabled devices, and we have to look at that being set to continue into the future, so there are massive challenges. That perhaps goes into the whole idea of big data, because big data is not just about large volumes of data but about the extraction, manipulation, use and interpretation of that data. There is far more to it than just getting hold of a device; we have to do so in a managed and controlled way.

As with any science, these disciplines do not sit in isolation, so increasingly we see that any given crime will require that expertise from both the trace element and the digital element of forensics. How we manage those two sectors coming together and working together places increasing demand on the sector, requiring more and more advanced management. If we do not have the resources to look into how we manage the system and perhaps do not have the resources going in, that creates increasing strains, which then have an impact on the rest of the criminal justice system and policing.

[Richard Fuller]

I have been listening with interest as my hon. Friend has explained an ever-expanding list of areas, including data, big data and artificial intelligence. It seems to me that his vision for what may be within the ambit of the Bill is much more expansive than perhaps was my first assessment of what may be contrived in this Bill—certainly, as we were hearing from my hon. Friend the Member for Christchurch (Sir Christopher Chope), within a budget of £100,000 going up to £400,000. Have I got the scale of what my hon. Friend the Member for Bolton West (Chris Green) is envisaging right, or is it more restrictive, perhaps closer to what the hon. Member for Bristol North West (Darren Jones) said in his opening remarks?

[Chris Green]

I think that point reflects on what the hon. Member for Bristol North West said about this being a starting point in terms of the regulator body. This also reflects upon the sphere of law and order and the justice system that it ought to be looking at and investigating. It is those two aspects together that overall will require significant resources, and to get more and increasingly specialist skills to look at artificial intelligence, cloud computing and those sorts of areas. There may not be those skills necessarily within the regulated service, but certainly there would be an expectation of commissioning people to come in to inform and enable the regulator to have that oversight position, perhaps, later on.

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[Chris Green]

I agree with the concerns that my hon. Friend highlights. When the system looks in one way or another at a victim’s smart device, which has so many personal messages and so much personal information on it, the victim needs reassurance that it will be done in the right way and they ought to feel safe. I am cautious that that ought not to be an impediment to their seeking justice.

[Richard Fuller]

I am cautious about trying to have a dialogue with the Minister through my hon. Friend while he makes his speech, but may I just add a counterpoint to his response to the Minister about the assurance that comes when “the system”, as my hon. Friend called it, has access to data? If we provide a statutory underpinning to the powers that can be taken in the use of data for forensics, does that not provide a stronger basis for the state to intrude even further into the data requirements that law enforcement can pursue in pursuit of forensic evidence? Would that not be a cause of concern for many people?

[Chris Green]

I appreciate my hon. Friend’s concerns, but I would be cautious about going down that route. Increasingly, the policing system as a whole reflects on the specialist skills required to do the work and within that system there is increasing recognition that the police need people who are perhaps badged as police but who would not fit into the traditional view of policing. Whether those people are employed and recruited through the policing system or for a private sector provider, ensuring the standards are equally high and equally well adhered to is key to this aspect of the work.

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[Chris Green]

I agree entirely; my hon. Friend makes an important point. This legislation, and our having this debate, is incredibly important in giving victims the confidence to come forward and know that they will be looked after and supported in the right way. There would be an ongoing duty and responsibility for the Forensic Science Regulator to work to raise standards in the system, so that people can recognise that.

I have not touched much on the digital side of a forensic science laboratory’s work. I am more familiar with mass spec, high-performance liquid chromatography and the other analytical techniques that can be used. I was a member of the Science and Technology Committee from 2015 to 2017, and we went on a visit to the Laboratory of the Government Chemist in Teddington. I had worked there a little bit beforehand, but it was fascinating to see the digital side of its work. I want to give a sense of the challenge ahead and the resources required.

The police and forensic scientists have to monitor, judge, analyse and access smartphones, smart watches, iPads, computers, desktops and many other devices. All those devices have different levels of software, different editions, newer versions and different operating systems. We need to have a compliant system within the digital sphere to ensure that that analysis can be done in a way that cannot then be challenged or undermined in the court system, and it can be shown that these standards have been adhered to and in no way have the digital services interfered with or corrupted the data being drawn from these devices.

[Richard Fuller]

My hon. Friend is outlining the expanding scope of the work that will be undertaken. I take the point from the hon. Member for Bristol North West (Darren Jones): this is about the statutory underpinning. Nevertheless, does my hon. Friend think that all this work he refers to about digital watches and digital whatsits can be done within a budget of £400,000 a year? Are we not really just seeing the first step in what will be an ever-increasing budget for this regulator?

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[Chris Green]

My hon. Friend makes a really important point about the quality of evidence and expertise. That was covered in the forensic science regulator’s report, published earlier this year, which talked of:

“Implementation of quality standards is a means to this end, ensuring a systematic approach to scientific validity, competence and quality.”

The report therefore covers the regulator’s approach, and the report produced in the Lords last year touched on such concerns in a more robust way. I think that what we are trying to achieve in this area will reinforce and improve the situation. There is also the perspective that there ought to be better briefing and understanding within the system, so that, in fields where there may be a variable quality or understanding of certainty, that is explained as a trial makes progress.

[Richard Fuller]

If I may say, that contribution from my hon. Friend has been one of the most valuable. He talked about how the Bill, in providing a statutory underpinning, will provide an opportunity for those listening to evidence to have more of a structure for what they are hearing that is completely independent from the case at hand. I am grateful to him for raising that.

I would like to move, if I may, in the second quarter of my contribution—or the second half of my contribution—to the broader issue of Parliament, regulators and the way in which we review the powers we give to regulatory agencies. Notwithstanding how a regulator is welcome in this particular sense, there are broader issues at stake about what Parliament and Government do next with regulators.

I point out to the House that this regulator will, I presume, be responsible to the Home Office—I hope so, because that is the only Department for which I have the data to hand—but 30 agencies already report into the Home Office, and that is of 413 agencies and other public bodies listed on the gov.uk website, all of which have an array of statutory or other regulatory enforcement powers. I ask hon. Members to consider when was the last time any hon. Member conducted a thorough review of any one of those agencies.