By Jo Millington BSc (Hons) MSc PGCert MIABPA, Senior Forensic Scientist, Manlove Forensics Ltd
Impartiality, independence and integrity are the foundations of forensic science. As a forensic scientist, they are qualities that evolve during our formative training in science and we arguably donate them to our profession for free. It is our personal responsibility to nurture and sustain them and we entrust them to a system which we hope will protect and develop them. Historically, these qualities and the ‘civil service ethos’ fit extremely well with the way in which forensic services were commissioned in the UK. However, since the closure of the Forensic Science Service (FSS), and in a transitioning market, we have a professional responsibility to ensure that these virtues are protected, that an unbiased approach is encouraged and that forensic practitioners are able to continue to deliver robust science to the UK Criminal Justice System. Reasonable expectations we might assume, but has the market changed so radically that it is no longer practical to retain this system?
The commoditisation of forensic science through the national forensic procurement framework continues to present a significant challenge to forensic provision. The approach that it encourages can sit uncomfortably with the traditional ethos of the forensic scientist and it can require a transition from public service to commercial enterprise that is difficult for practitioners who have spent a significant proportion of their careers in the ‘old world’. In some eyes the new horizon is colonized with limit and imbalance and we should take care to navigate it properly.
It would be futile to present an argument against change but we must ensure that undue restrictions are not placed on the provision and scope of forensic investigation and that quality is not undermined. These restrictions can be ‘budgetary’, for example because spend on an offence type may be capped (volume crime events rarely command unlimited resources) or because the instructing administrator has been asked to reduce the number of items being submitted for ‘costly’ examination. Or the restrictions may be ‘intellectual’, due to the relative inexperience of practitioners who are being asked to screen items for a particular evidence type before submission, without necessarily having a wider awareness of forensic potential. These may be generalisations, but if only a fraction of decisions are influenced on this basis, the broader rationale for forensic submission and examination requires review.
Effective strategy decisions have the potential to be stifled when budget is limited and when budget is a defining factor in decision making it becomes increasingly difficult to maintain best-practice. If this state is to continue, then investment in training is urgently required so that individuals tasked with making these decisions are informed in terms of what the forensic science can deliver, given the questions that are being asked, and where their limited resources would be best directed. It is also necessary to ensure that those delivering high throughput forensic services are not being asked to run before they can walk. Whilst graduates may offer a cost-effective solution in the delivery of time and cost limited services, their effectiveness in the UKCJS is only resolved if their contribution is appropriately validated and certified. Is it appropriate to call as a witness an expert who has never had court training or set foot inside a court room?
Traditionally the compilation of a forensic strategy would evolve in conjunction with a laboratory-based practitioner. More frequently it is being developed in forensic submission units in consultation with a readymade menu of forensic options and costs. This means that the experience that was relied upon to support effective decision making is being diluted, or worse, lost from the market. This approach develops a self-fulfilling rationale that forensic tests do not offer value for money because misdirected requests have generated inconclusive or failed test results. A clear example is the prominence of tests that are directed towards the recovery of DNA. Surely DNA will tell us ‘who did it’? Recent rulings by the Court of Criminal Appeal for England and Wales, including of Dlugosz, have demonstrated that DNA is not the Holy Grail of forensic science as originally thought, and the more appropriate question is not necessarily ‘who could it have come from’?, but ‘how did it get there’?
The development of police in-house services, which has been accelerated by financial pressures within the market and the dissolution of the FSS, increases concerns over the delivery of a non-partisan forensic strategy. It is arguably impossible for police laboratories, whether accredited or not, to commission examinations which investigate the prosecution and defence hypotheses; a) because their investigations are unavoidably offender-centred and b) because the work that they procure is subject to extreme financial scrutiny. This leads inevitably to the situation where in order to investigate an allegation of kicking and stamping to the head of the complainant only a left training shoe is submitted for forensic analysis. It is also the reason why complex forensic findings are distilled into one line summary reports for charging purposes and it is why forensic examinations are conducted in a staged approach and stopped at the first sight of a ‘positive finding’. There is very little cogent evidence that a forensic strategy will undergo an informed review in light of changing scenarios, or in preparation for trial and because of this, the defence are instructing increasingly more primary examinations and presenting prima facia evidence to the court. Arguably neutralising any perceived cost-efficiencies that were sought at the start of the process. Is this acceptable?
Scientific provision in the defence market is arguably less-regulated. Although industry benchmark accreditation has been achieved by a number of providers who offer defence services, the results that they generate are not compelled to be disclosed and in almost all cases are not subject to independent re-testing or review. Surely all forensic providers should function at the same level of accreditation, proficiency and competence?
Whilst the preference is that all defence reviews should be done by regulated practitioners who have developed industry standard competence and are working in an appropriately (UKAS) accredited facility, funding pressures (including those conferred by the Legal Aid Authority) and a variable profile of providers from lone minds to collectives, means that the market is as vulnerable to disparity as the market which serves the Crown. It is interesting to note that the LAA cap remuneration rates for a forensic scientist to review and comment on the scientific findings generated in a case at a rate which is largely below the rate that Crown laboratories charge to copy (or allow access to) the records that the scientist has been instructed to review.
If forensic provision is to be spread across the whole market, and conducted by all players within it, then the field needs to be levelled and investment must be targeted evenly in all aspects. This includes in the framework on which robust science depends: research, development of services and people, collaboration and continued learning. None of these elements form part of the procurement framework or the Legal Aid framework, and as costs are squeezed, at different rates depending on the sector that is being employed, and efficiencies are more difficult to achieve, justification to finance these ‘ancillary services’ become increasingly difficult.
With collaboration and training in what our discipline can offer, Casework Submission Units and other users will be able to make an informed decision based on what forensic providers can actually deliver. From there we can reverse the trend of rationed forensic science being presented to the court and focus on delivering cost-effective answers to case-relevant questions.
Forensic analysis cannot provide the wider context for deliberation, it cannot direct a jury and should not be taken in isolation. When forensic science is utilised we must be absolutely satisfied that the forensic evidence that is presented is complete, fit for purpose and in context with the whole case circumstances: the whole truth and nothing but the truth. In my opinion, the new forensic market has not yet provided the assurances necessary to demonstrate that forensic science submitted to the Crown for consideration is any of these things.
Fit for purpose testing? – a case example
A male was charged with the rape of an individual who alleged that she had been sexually assaulted at his home. The complainant stated that after leaving a bar in the early hours of the morning, she had no recollection of anything until her next memory of being in an underpass in the morning. This raised the issue of whether or not she would have been capable of giving consent. DNA matching that of the defendant had been detected on samples taken from the complainant and the case went to trial. The defendant stated consent and that the complainant had worn an item of his clothing at times during the evening, including when they were intimate, which she denied. The defence instructed an examination in order to investigate if there was any evidence that the defendant’s clothing had been worn by the complainant as alleged. A sample of material from the inside back was recovered in order to establish if DNA matching the complainant, which may have transferred had she worn the item, was present. The DNA analysis indicated a mixture of DNA consistent with the defendant (the routine wearer) and the complainant having contributed. Furthermore, hairs in keeping with those of the complainant were observed. Although this evidence could not assist in progressing the issue of consent, presented against the framework of circumstances and probabilities, the findings were more likely if the complainant had worn the clothing than if she had not. Circumstantially, the new evidence was significant and it was successfully argued in court that she had been a willing participant and not incapable of giving consent. Proceedings were discontinued.
Streamlined Forensic Reporting – a case example
In August 2011, the shooting of Mark Duggan sparked violence in London which eventually spread to almost every major city in England. During this time hundreds of individuals were charged with crimes related to the rioting, over half for burglary. One of these involved the Commercial Burglary of an electrical store in South-West London. During the examination of the scene a blood sample was recovered from the floor of the warehouse. This blood was submitted for DNA profiling and a DNA match conveyed to the police in the form of a Streamlined Forensic Report (SFR), an abbreviated document which is currently being rolled out nationwide to deliver forensic results to the court and fast. The individual was charged and court proceedings began.
DNA in a forensic context can provide extremely compelling evidence of elimination and equally compelling evidence of association. The match itself in this case seemed to provide a black and white framework for conviction, except for two things. Firstly, the defendant had worked in the warehouse and felt that his DNA could have been legitimately present, in saliva for example. Secondly, all of the information present in the DNA result had not been disclosed in the SFR, specifically that there were indications of animal DNA in the sample, potentially from a dog.
During the civil disturbances hundreds of police dogs were employed operationally. It would not be unreasonable to consider that they may have been injured as a result, by treading on broken glass for example. In a forensic context, the presence of animal DNA could be significant. Its non-disclosure is also significant and could be due to a number of issues which are developing in the forensic market. Firstly, Streamlined Reporting does not provide a framework that allows for elaboration. Scientific results are reported as fact and any interpretation of what that finding could mean in the context of the case is not presented. In addition, the chain of analysis is becoming increasingly fragmented. The sample was recovered by a Scenes of Crime Officer with no confirmation of whether blood had actually been present in the stain. Although it was said to have ‘looked like blood’, it wasn’t tested chemically. In addition, although general photographs of the scene were available, none were of sufficient resolution to allow the shape of the stain to be investigated. In other words, it wasn’t possible to determine how the stain may have been originally deposited: had it dripped onto the floor or transferred through contact. Was it paw-shaped?
The presence of animal DNA was not disclosed to the court until the defence review, approximately two years after the case entered the forensic process. It was only then that the UKCJS was furnished with all of the scientific information on which to consider their case. Although the strengths of Streamlined Forensic Reporting are apparent, arguably the limitations of this process, in a forensic context, are less well understood.
Author: Jo Millington BSc (Hons) MSc PGCert MIABPA
Senior Forensic Scientist, Manlove Forensics Ltd
Post: MFL, Unit 12, The Quadrangle, Grove Technology Park, Wantage, Oxfordshire, OX12 9FA