Posted by Law Campus Admin on the 14th September 2011.

Firstly, I should say that I do not have a problem with the private sector being involved in parts of the Criminal Justice system. If I am charged with a crime and all of the resources of the State are ranged against me, then I would like to be able to choose the people who will defend my interests i.e. a solicitor and barrister I pick to take on the task, rather than a public defender or the like.

However, I would suggest that there are parts of the system that should remain the function of the State to ensure equality before the law and clear redress if the State organs do not function as they should. No-one would want a privatised police force of instance.

However, there is an important element of the Criminal Justice system that will be 'privatised' early next year and that is the Forensic Science Service (FSS). In case you were not aware, it was decided in December 2010 to "support the wind-down of the FSS, transferring or selling off as much of its operations as possible" by March 2012. This was driven partly by the cost-cutting agenda being pursued by the Coalition Government and because the Government believed that the forensic science market was 'shrinking' and the FSS losses would continue to grow.

To be honest, I was not aware that there was a commercial market for forensic science services already in existence. The fact is that there is, and the FSS has 60% market share. This proposal was reviewed by the Science and Technology Committee of the House of Commons and their report was published on 1st July 2011. That report can be viewed in full at http://www.publications.parliament.uk/pa/cm201012/cmselect/cmsctech/855/....

In that report, the Committee had a number of major concerns about this plan. In their Summary, they stated that:

'Overall, we consider that the Government, in making its decision, did not give enough consideration to the impact on forensic science research and development (R&D), the capacity of private providers to absorb the FSS's 60% market share and the wider implications for the criminal justice system. These considerations appear to have been overlooked in favour of the financial bottom line. In addition, we consider that the Home Office's Chief Scientific Adviser's satisfaction with his exclusion from the decision-making process and his failure to challenge the decision to be unacceptable.'

The report Summary went on to say:

'Winding down the FSS will be a complex task and we are not confident that an orderly transition can be achieved by the extremely challenging deadline of March 2012. We recommend that the deadline should be extended by at least six months to enable the Government to consult on and determine a wider strategy for forensic science.'

There have been debates around whether private providers can deliver the same quality of scientific data as the FSS and indeed some commentators do think that in some cases, the private providers can deliver better 'science' e.g. http://www.theforensicinstitute.com/news/FSS%20winding%20up.htm.

I do not think that this is the core of the issue. The issue is the integrity of the whole forensic science system, the control and management of forensic materials collected during the investigation of crime, access to and storage of those materials on behalf of the prosecting authorities AND those accused or convicted of a crime. I fear that the 'profit motive' could lead to problems in the system. Forensic science, like other branches of science can involve long and painstaking investigation. What might happen if a scientist is required to spend no more than 6 hours on a particular test, even if further testing could lead to a definite result that could prove someone's guilt or innocence?

Another question to ask is how long would a private provider be required to keep DNA evidence after a conviction? Proper storage costs money. Would providers be allowed to destroy evidence after a defined period? Why should this matter you might think? Well, in the United States, there have been 273 post-conviction DNA exonerations. For example, Marvin Anderson served 15 years for rape and robbery and was finally exonerated of this crime in 2002. He was exonerated only after '...Dr. Paul Ferrara, Director of the Virginia Division of Forensic Science, advised the Innocence Project that certain physical evidence from the case ... had been located in the laboratory notebook of the criminalist who performed conventional serology in 1982. Had that criminalist followed policy and returned the partially used swabs to the rape kit, all evidence in this case would have been forever lost.' Those samples were finally tested after further appeals and results on December 6, 2001, excluded Anderson as the perpetrator (http://www.innocenceproject.org/Content/Marvin_Anderson.php).

So, DNA evidence can be key to proving the guilt or innocence of the convicted but if that material is destroyed, that chance would be lost forever. What safeguards will be put in place to ensure that the Criminal Justice system will not be undermined by a company looking to the 'bottom line'?