Science and the law: a cause for concern

Contemporary Review, August, 1998 by Zakaria Erzinclioglu

As a consequence of this widespread concern, two inquiries were held into the state of British forensic science. The Royal Commission on Criminal Justice and the House of Lords Select Committee on Science & Technology both produced their final reports in 1993. The general conclusions were that, although forensic science had gone through a bad patch in recent years and that further improvements could be made, it had now largely set its house in order.

After the appearance of these reports, new revelations about poor forensic practice came to public notice. The discovery that equipment at the Royal Armament Research and Development Establishment was contaminated and that forensic tests from that laboratory may have led to up to twelve miscarriages of justice in cases of terrorism caused public disquiet. Stories of incompetent forensic work, such as in the case of Carl Bridgewater, the murdered newspaper boy, added to the sense of unease. Although these cases dated from earlier years, the realisation that there were further skeletons in the forensic cupboard generated new concern. Nevertheless, the general belief was that the problems, by and large, had been resolved.

Unfortunately, this is not true. The public debate about forensic science has been concerned mainly with individual cases of miscarriage of justice, not with the system that allows such injustice to occur in the first place and with such frequency. It is this latter problem that I wish to address.

In fact, there are several interrelated problems, which, in combination, produce a system that invites malpractice. Before explaining what these problems are, it is necessary first to recount some facts about the way forensic science provision is organised in Britain.

It may appear incredible to many people that forensic science is a concept that is not recognised under the Law. Anyone may claim to be a forensic scientist and to practise as one, if they wish. No qualifications or credentials of any sort are required. This situation is akin to the notion that anyone can claim to be a doctor and be able to treat patients and carry out surgical operations, without any kind of medical training or degree, a notion most people would find ridiculous. In the forensic world, only a forensic pathologist (or medic) is required by the Law to be properly qualified. In any other field, from toxicology to DNA fingerprinting, from ballistics to document examination, from blood analysis to glass fragment identification, anyone may practise. The system is totally unregulated.

In the years before 1989 the Forensic Science Service (FSS) formed an integral part of the Police Department of the Home Office. In those days Police Forces submitted their cases to the FSS and the work was carried out without payment of a fee. However, Police Forces did pay an annual sum of money to the service, but the amount was fixed according to the size of the Force and not to the amount of forensic work carried out.

In 1989, the House of Commons Home Affairs Committee recommended that agency status be given to the FSS. Its advice was accepted and the service was, effectively, privatised. This meant that the police were now obliged to pay the full cost of forensic work on a case-by-case basis. However, one member of the Committee dissented from the general view, stating in an amendment to the draft report that the market-place approach to forensic science was inappropriate, but this view did not prevail. So, the FSS was thrown into the market-place, there to compete with the many independent commercial laboratories that exist. Many of these commercial laboratories have high standards, but, regrettably, too many do not. The FSS has been forced to compete with these practitioners.

Let us now consider what happens when forensic advice is required by either side in a criminal trial. A forensic scientist is normally consulted by either a police officer or a solicitor, but only very rarely directly by a barrister. A police officer will often, but by no means always, already have a 'case', by which I mean a belief in a certain course of events and in the guilt of a particular individual, before he consults a scientist. A solicitor or a barrister will always have such a case prior to approaching a consultant.

Inevitably, therefore, the forensic scientist is very often presented with a 'line' that he is required to support. If he does not support the case presented to him, it is generally true to say that he will not be in good odour with those who consulted him. In practice, the reputation of the forensic scientist rests on whether or not he has rendered good service to those who paid him.

Those who argue that any 'product' is best evaluated by the customer have applied this argument to forensic science. It is a point of view that is superficially plausible, because it makes sense in other walks of life. If one buys a pound of potatoes from a grocer or pays a picture-framer to frame a painting, one has a right to comment on the reliability of the person involved if the cabbage is rotten or the frame falls to pieces. One would be perfectly entitled to go to another grocer or picture-framer next time.