In the aftermath of the verdict in the Stephen Lawrence murder trial I wrote for The Justice Gap about the forces undermining the quality of forensic – scientific and expert – evidence. On one side, the government has scandalously closed the Forensic Science Service (FSS); on the other, the Court of Appeal in a sequence of judgments has laid down what may be a dangerously low standard for expert evidence to be admitted in Court. When the funds available to the defence (through shrinking Legal Aid provision for experts) and to the police are being cut, there is a real risk that dangerous and unreliable evidence will distort trials and lead to wrongful acquittals and convictions.
Here’s what they did to the FSS.
Previously a government agency, in 1999 the FSS turned into a lab rat, subjected to live free-market experimentation, when the government granted it trading status. It was supposed to compete for work with private sector laboratories and make money. In 2005 it became a ‘GovCo’ – a company wholly owned by the government – as a step towards becoming a public-private partnership. It started its new incarnation in true 2005 fashion, with a huge loan of £50 million of taxpayers’ money. But its commercial development never happened. There was no commitment by the government to push it forward. There wasn’t enough information about the ways that private operators the local police forces’ in-house forensics people worked. The FSS was expensive to run. It was expensive because in general it worked to a very high standard, and very high standards cost money. It took on more staff but did not control its costs. Its cheaper commercial rivals took business away from it. It did not make a profit and could not pay back its loan. It needed bailing out with a grant of £50 million in 2009.
In the 2010 spending review, the Coalition government looked at it and decided that they could not continue to prop it up. There was no question of reform or restructuring. In December 2010 the Home Office killed it off. It will close forever in March 2012. This was the rationale:
‘We want to see the UK forensic science industry operating as a genuine market, with private sector providers competing to provide innovative services at the lowest cost. This will preserve police resources and maximise the positive impact forensic sciences can have on tackling crime. A competitive market can help to drive down prices and improve turnaround times, meaning serious crimes can be cleared up more quickly and efficiently. Ultimately, that is what everyone in the criminal justice system wants to see.’
This means: we want justice on the cheap. You will notice the glaring absence of ‘quality’, or ‘excellence’, or even that favourite old piece of cant, ‘world-class’. The destruction of the FSS was simple cost-cutting wrapped up as free-market reform. No one asked for a market in forensic science but we’ve got one anyway.
The House of Commons Science & Technology Committee in their highly critical June 2011 Report complained that the government failed to gather intelligence about the likely market conditions that would operate before and after abolition and failed to predict the extent to which it was possible for private providers to fill the gap. They made the decision to close it on insufficient evidence about the impact. The only concern was the bottom line.
The MPs also said:
Proper consideration should now be given to what resources might be irretrievably lost to the UK with the closure of the FSS, including the FSS’s archives and the intellectual wealth residing within its scientists. We have seen no detailed plan outlining the transition and the future of the FSS’s staff, archives, work and assets.
At its height the FSS worked on over 120,000 cases per year and employed 1300 scientists. It has worked with more than 60 countries worldwide in consultancy, training, systems, and technology and casework databases. It has worked with foreign governments to set up and monitor their own forensic science services, and has won a reputation as a pioneer in the forensic use of DNA technology. The skills and personnel have taken years to assemble.
The MPs’ report shows a hurried decision, taken without enough thought or evidence, with no real evaluation of the true costs and benefits.
And what sort scientific testing do the Courts require to admit evidence as properly expert evidence?
No less an authority than Lord Justice Leveson has expressed serious concerns about the Court’s readiness to allow evidence to be treated as expert evidence without in-depth scientific authentication. In a speech to the Forensic Science Society in November 2010 he said
There have been increasing concerns that in certain circumstances expert evidence has been incorrectly used, or too much significance has been ascribed to it. This problem was highlighted recently by the Court of Appeal (Criminal Division) in R v Atkins  EWCA Crim 1879. The Court noted three factors about expert evidence which should be borne in mind throughout. First, expert opinion is just that: an opinion. Second, experts need to know the limits of their expertise and have the integrity to inform the Court of those limits. Third, expert evidence should – indeed must – be submitted to robust testing, either by another witness in the same field or in relation to accepted scientific methodology for the science and statistical analysis for probability.
However, the Criminal Courts have adopted a test for the admissibility of ‘expert’ evidence that is not based on an appraisal by scientific peers; such evidence does not always require a firm base of statistical research to give support to opinions in particular cases. The weight and reliability of such evidence are left to the jury to decide. Our Courts have taken a very different approach from the USA, where the admissibility of expert evidence in a new or developing areas depends upon a scientific consensus about its reliability. Here, that approach is thought to oust the Judge from determining the issue. Instead, we have the nebulous concept that opinions on a given subject are admissible under two conditions: (1) whether study and experience give the witness’s opinion an authority that the unqualified will lack; and (2) whether the expert has undertaken the necessary study or gained the necessary experience. This was the formulation by Bingham LJ in the case of Robb (1991) 93 Cr App R 161. Our Courts have rejected a “reliable body of knowledge or experience” condition. A good example of their approach is Otway  EWCA Crim 3 (in which the writer represented the appellant): a podiatrist said he recognized the appellant as the unidentified man said to be the offender, on security camera footage, by his gait and posture. There was no database and no peer review of the technique he used, but the Court of Appeal held that these were not required – in effect, the self-certification of the witness as an expert was enough.
This laissez faire approach has caused or contributed to at least three scandals: the use of Professor Roy Meadow as an expert on child mortality, until he was finally discredited in the appeal of Cannings  2 Cr App R 7; the use of ear-print evidence Dallagher  EWCA Crim 1903; and the use of a forensic lip-reader who passed muster with the Court of Appeal (Luttrell  EWCA Crim 1344) but was later found to have given misleading evidence about her qualifications. All these cases concerned experts used by the prosecution. They suggest a degree of willed credulity on the part of the judges, together with a proprietorial reluctance to let other experts have a say on whether evidence is fit to be admitted. The reported cases offer reassurance on the impossibility of obvious quackery like soothsaying or astrology being admitted, but that is an aunt sally. It’s the better disguised fakers and incompetents who need to be kept out. The three cases above show that the present rules are not good enough to ensure that unreliable and dangerous evidence, wrongly labeled expert, is kept out.
The Court of Appeal has not been consistent. When it considered an expert relied on by the defence in the appeal against conviction in Gilfoyle  2 Cr App R 5, came close to insisting on the ‘reliable body of knowledge or experience’ condition for admitting the evidence – which they found wanting. Mr Gilfoyle’s wife was found hanged at the family home. G was convicted of her murder. He sought to adduce evidence of a psychologist about her likely mental state, to support the defence case that she killed herself. As readers of JG will know, Mr Gilfoyle is now trying to reopen his case, on the basis that the prosecution failed to disclose vital information about his wife’s precarious mental state and previous suicide attempts. So it looks as though the Court may have drawn the line too tightly and excluded reliable evidence which would have helped the jury to decide where the truth lay. Why should a jury have not had the same opportunity to assess it in Mr Gilfoyle’s case, as they were given in the cases decided the other way? Or why should the Judge have not used applied the “reliable body of knowledge or experience” criteria in the other cases, and used them accurately, to ensure that justice was done?
The Stephen Lawrence murder trial broke no new scientific ground. Bloodstains that should have been detected in 1993 were missed until the police re-investigated the case in 2007. Even reliable experts can miss evidence that yields to routine analysis and can prove the case one way or the other. But now, the demise of the FSS removes a body of experts of world renown; the prevailing laissez faire attitude of the higher Courts to new and under-researched types of expert evidence leaves the field open to plausible quacks and incompetents.
Maybe it will all work out; the market will soon throw out the also-rans; the judges can safely rely on self-certification where no body of knowledge exists. Or maybe more people will be tried and wrongly judged on evidence that is not good enough, and they won’t be in causes celebres like the Lawrence case, and no one will ever know.