A Ticking Time Bomb?

Toby Wilbraham, Specialist Criminal Defence Solicitor, considers the outsourcing of forensic science services and potential miscarriages of justice that may arise.

Forensic evidence has become increasingly important to prosecute people over the past few decades. In some cases forensic evidence is the key evidence in a prosecution and a conviction could stand or fall determining on how reliable the evidence is.

What happened to the Forensic Science Service?

In the past the Government relied on forensic evidence provided by the Forensic Science Service. This institution was generally seen to produce forensic evidence to a high standard. The company was closed in December 2010 with the Government suggesting that this was due to high losses being made there.

Since then regional police forces have undertaken some work in house and outsourced other forensic testing to smaller laboratories on a cost basis, tendering  the work to the cheapest bidder. This has caused concerns as to whether standards are being upheld. The Randox testing scandal suggests that not only have standards fallen but results could be wrong leading to miscarriages of justice.

Forensic Science Regulator Annual Report

The Forensic Science Regulator Gillian Tully has produced her annual report today voicing concerns over the standards of laboratories being used and suggesting that cost cutting measures are driving down the quality of forensic work and that quality of work should be as important a factor as cost when commissioning work.

She noted the potential problem for cost savings:

“Value for money is of course an important and legitimate aim, but achieving the lowest cost does not always equate to the best value for money. Where cost is over half of the weighted evaluation of tender responses, there is a significant risk that the quality of forensic science provision will be compromised.”

United Kingdom Accreditation Service, UKAS

She stated that from October 2017 there has been an additional requirement on forensic science providers to demonstrate compliance with the Regulator’s Codes of Practice through a formal accreditation process carried out by United Kingdom Accreditation Service, UKAS. She comments that although these requirements have been made, not all providers are yet accredited.

She also noted that in house police work is lagging behind in the accreditation process saying:

“Accreditation to demonstrate compliance with the Codes was required across a range of disciplines by October this year. At the time of writing (November 2017), 12 police forces in England and Wales have not gained accreditation to the Codes, or a recommendation for accreditation. “

Concerns with Forensic Work

As well as problems with accreditation she noted that there were concerns with other issues such as:

1. loss of exhibits;
2. compromise of exhibit integrity;
3. method failures;
4. poor performance in proficiency tests; and
5. internal inconsistencies in reports not being identified.

She also noted particular concerns where cases solely depended on forensic evidence:

“..there is an increasing possibility of cases being progressed, albeit infrequently, on the basis of DNA evidence alone. The potential for contamination or other errors to result in a miscarriage of justice is consequently greater, and it is necessary to consider what, if any, additional safeguards are needed.”

She also comments that legally aided defence work is also disadvantaged saying:

“Legal Aid Agency (LAA) rates continue to present a barrier to the adoption of standards by defence practitioners.” This suggests that defence practitioners are hindered by the rates allowed for defence work potentially leading to less quality work being obtainable.

Cheapest is not always best

The report is a wake up call to in house providers, the independent providers and the Government. Although she acknowledges that even with a strong regulatory framework determined individuals could undermine results, like at Randox, concerns are clearly made that competitive cost cutting can lead to lower standards increasing the likelihood of miscarriages of justice. The Government (and Police Forces) needs to rethink its policy of ‘cheapest is best’ and focus more on value and quality of forensic work.

Toby Wilbraham- Criminal Defence Lawyer

Written by Toby Wilbraham,  specialist criminal defence lawyer. If you require advice in relation to a criminal case involving forensic issues please contact Toby Wilbraham by telephone on 0161 8341515 or by email to tobywilbraham@olliers.com.