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

Lord Thomas of Cwmgiedd Excerpts

Monday 26th April 2021 Grand Committee

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, it was a great privilege to have been co-opted to this committee for this inquiry, and a privilege, pleasure and education to serve under the wise and far-sighted leadership of my noble friend Lord Patel.

During the course of the evidence, it was sad to hear that the respect in which the leadership the UK had shown in forensic science had declined so rapidly. Only a few years before, that leadership had been celebrated at a conference organised by the Royal Society, which demonstrated that the UK was then significantly ahead of several states and of the leaders in the field, which are acknowledged to be Australia, Switzerland, the Netherlands and the United States. I had hoped that this report would provide the opportunity for the UK to regain that lead, particularly as a result of serious issues relating to forensic science that had arisen in the United States under the leadership of its then President.

The report concluded that the failings in the system were due to three matters: lack of high-level leadership, lack of funding, and insufficient research and development. The noble Lord, Lord Patel, gave a perfect overview, and I join him in tributes to those who advised the committee. Other noble Lords have dealt with other issues, in particular the market, AI and miscarriages of justice. I will confine my remarks to leadership, and to research and development. I appreciate that the criminal justice system’s focus over the last year and a half has been on dealing with the problems brought about by Covid-19, but forensic science is essential to justice and nothing can excuse a failure to plan ahead now to restore its position.

I therefore turn first to the need for high-level leadership. I tried to find out what has happened since the Government’s response to the report in July 2019. The criminal justice board publishes its minutes. The minutes of July 2020—the last I was able to find—said this. They are short, so I can quote them:

“Forensics: Stocktake 2020 … The LORD CHANCELLOR spoke about the importance of forensics within the CJS and was pleased to receive an update from the Forensics Sub-Group to the CJB which is jointly chaired by the Ministry of Justice and Home Office.


BARONESS WILLIAMS OF TRAFFORD noted that the Sub-Group had identified the need for the Forensic Science Regulator to become a statutory body.


The LORD CHANCELLOR thanked the Sub-Group for all their work and invited Board members to provide further comments, outside of the meeting, on the paper presented.”


If I may respectfully say so, I am afraid that is not very informative as to progress over a year.

More seriously, the criminal justice board has much else to do. In the years I served on it or went to its meetings, which was shortly after its formation until I retired as Lord Chief Justice, it was not the kind of body, nor was any sub-group, that was effective on the detailed issues that require great expertise and knowledge of science and the law with which this issue is concerned. However, more serious is the problem that the work on forensic science needs to be independent and accountable. The minutes show how unaccountable it is because there is no explanation of what it does, and it cannot be regarded as independent. Forensic science needs to serve the police, the prosecution, the defence and the interests of justice. It is very difficult to see what the criminal justice board sub-group has done on that first issue.

The second thing, which is about to happen, is putting the Office of the Forensic Science Regulator on a statutory basis. Dr Gillian Tully was an excellent regulator. She retired two months ago—she was a pleasure to work with and achieved a great deal. Her most recent achievement was dealing with the very difficult subject of standards for evaluating opinions, which play such a large role in the evaluation of forensic evidence. There is an interim regulator, but when is the new regulator to be appointed? When will the Government look seriously at its powers? That is the key issue. Although the regulator’s role is key, it is not that of leadership. It is to ensure quality and accreditation, and that the market functions efficiently. It is not independent and it cannot provide the holistic leadership of scientific research required in our system.

I look forward to hearing that much more may have been done, but I could not find it. Maybe that is due to my inability to trawl the records in sufficient detail, but I could find no explanation elsewhere. I very much look forward to what the Minister can say about progress. The UK needs to be back at the top of the league, and it can do that only with holistic leadership of the kind set out in the report.

The second aspect I briefly refer to is the need for proper funding of independent forensic research. Again, I refer to just two areas: digital and DNA. It is clear from the evidence received by the committee and from evidence I received when chairing the Welsh Government’s Commission on Justice in Wales that digital forensics remains a major issue. Indeed, it has been an issue for the last nine years. Two things have gone hand in hand: the increased power of mobile devices and their ability to store so much, and the increased use of them to communicate in permanent record things that would never have been recorded before, which comes as a surprise to many. They are therefore essential to the administration of justice—not only for establishing guilt but for showing that conduct that may be complained about was innocent.

The use of digital forensics is important to the deterrence of crime through successful prosecution, the confidence of victims in the system, as assurances about the way information is contained in phones is critical, and, equally importantly, the proper use of police time. For example, in commercial litigation, increasingly sophisticated and independently reliable software has made a very significant difference. It extracts and searches properly and reliably. As far as I can ascertain, there are still serious issues with what needs to be done to tackle these matters—extraction and particular searching—so that something reliable is available to the police, the prosecution and the defence, which is so critical to the three issues to which I have referred. There are other aspects, including AI, facial recognition and deepfake, about which the noble Lord, Lord Mair, has spoken and which underline the urgent need to address an area that requires significant leadership and investment.

DNA has been essential to the criminal justice system since the 1990s. It has made a significant contribution to the conviction of the guilty and, equally importantly, the exoneration of the innocent. It has been a journey not without its problems: low-template DNA brought about serious miscarriages of justice in the way in which it was first used, and mixed and partial profiles and transfers have been a real problem. Much has been done; the Royal Society has led with a primer on this subject, which is parallel to the one spoken of a short while ago. But as I understand it, there are issues with mixed and partial profiles and transfers, and much more needs to be done. These are but two examples of the need for development and research—and it is development and research that are both scientifically independent and not dependent on police budgets.

The forensic science budget, to the extent that it is now largely in the hands of the police, must be looked at again. As the noble Lord, Lord Krebs, stated, I very much hope that the Minister is able to tell us a bit more about what UKRI has been doing, what advice it is taking and what it is going to do to bring investment to these vital areas.

Let me look at a way forward. I hope that the way forward will be by government action. In March 2011, the Law Commission produced an excellent report on expert evidence and draft legislation. Two years later, the Government said they would not bring forward a Bill and, therefore, made it clear that it was up to others—leave the law as it is, or look for change. All the reforms envisaged by the Law Commission were then brought about by the Criminal Procedure Rules, much to the benefit of the criminal justice system, and they worked.

The report we have been speaking of is the 10th in 10 years. As far as I can ascertain, nothing much has happened, although I hope the Minister will be able to tell us otherwise. It may be that it is because structures are not devised to be accountable or informative. However, forensic science is essential to justice, as the speech of each of your Lordships has shown, and it is essential to keep the UK at the forefront of world leadership in science and the law.

I trust that Her Majesty’s Government will not fail in restoring the position, but if they do, I hope that we will be able to find an example similar to that which was taken in relation to the report of the Law Commission and find another way to put into operation this excellent report, if Her Majesty’s Government feel unwilling or unable to do so.