Closure of the FSS - implications for defence examinations

The Forensic Science Service (FSS) developed within the Home Office as the sole provider of forensic services to police forces in England and Wales and for many years had a global reputation for its expertise, service provision and training.  The FSS pioneered the development and implementation of forensic DNA technologies and was instrumental in the establishment of the world’s first DNA database. However, on 14^th December 2010, the government made the unexpected announcement that the FSS was to be wound up within a year with the closure of its six main sites and loss of 1,600 jobs.  It would appear now that little consideration has been given to the continuity of services and how cases currently in the system will be processed through the courts.  Indeed, even before the complete closure has taken place, defence examiners are starting to experience significant difficulties as a result of the rationalisation of the service that was ongoing before the government-announced closure.

Following the publication of the McFarland Report in 2003, the Forensic Science Service became a Government-owned Company in 2005 and competition from other forensic providers increased in the newly developed “marketplace”.  Tendering for police contracts took place and other providers such as LGC Forensics, Cellmark Forensic Services and Key Forensic Services won significant tranches of work and some police forces took elements of work in-house.  Despite this, the FSS maintained 60% of the market and also tended to find itself in the back-stop position to undertake more unusual pieces of work not covered by the off-the-peg contract service providers.  The closure announcement seems to have been made with the implicit expectation that the other organisations will step up to the plate and fill the gap left by the FSS.  While this may ultimately happen, in the last few weeks we have seen the gaps opening up in this strategy.  For example, the concerning situation has arisen whereby police forces have been advised to refrigerate blood and urine samples taken under the Road Traffic Act while the NPIA scratches around looking for a supplier prepared to take on the work from the FSS.

It is indeed true that the FSS has struggled to be competitive in the newly developed marketplace and, as a result, had itself announced last year a rationalisation plan in which its laboratory in Chepstow would close at the end of 2010 and the laboratories in Chorley and Birmingham would close in the early months of 2011.  We are finding an increased level of administration and cost has to go in to organising any defence examinations on work that was initially conducted at these laboratories.  For example other laboratories have to make laboratory bench space available, scientists not familiar with the work need to get involved and police officers have to travel much greater distances to make exhibits available.

When the remaining three FSS Laboratories (in Wetherby, London and the HQ in Birmingham) close, and the whole administration structure of the service is gone, it is difficult to envisage who will take responsibility for retrieving and transferring the case file and stored items (such as microscope slides) and making these available for defence examinations.  With over forty years of archived files and materials it is not yet clear where the burden of custodianship of this body of evidence will lie; a new structure will need to be established and funded to manage this and its responsibilities. 

If responsibilities for old FSS cases are transferred to the new providers, these new providers will need to be resourced to facilitate defence examinations of such cases.  Alternatively, police forces will need to be prepared to release exhibits to defence examiners to examine at independent laboratories – to date, our experience of this being facilitated has been variable.  The additional costs of such exhibit and casefile transfer will have to be absorbed somewhere, but it is not easy to see where this may be, whether from police budgets, Legal Aid funds or court budgets.  Wrangling over such costs is already starting to creep into our work.

Unfortunately for the Criminal Justice System, it is anticipated that there may be many areas upon which forensic evidence may be challenged in this transition period including unavailability of relevant documentation and exhibits, non-availability or traceability of former FSS employees and questions over continuity. Courts may need to increase timescales for defence examinations to take place or an increase in abuse of process applications is likely.  It would be unfortunate if such relative technicalities became the focus of attention rather than the science itself.

During the transition from FSS supply to new marketplace undertaken thus far, we have already seen the quality and reliability of prosecution forensic evidence fall.  It is more important than ever, therefore, for solicitors to consider instructing an independent defence examination of scientific evidence where events are disputed.