Forensic evidence: The fox guards the chickens
The case of Andy Malkinson highlights a serious problem in the criminal justice system, that of the police seizing and having control over forensic evidence which unscrupulous police officers can then ‘lose’ or destroy without legitimate reasons. The same thing happened in the Jeremy Bamber case; a Special Branch officer with no links to the case destroyed all of the forensic evidence. The same excuse was offered, “I didn’t realise that there were ongoing appeals”. Indeed, the act of destruction is normally carried out by someone who has no link to the case, presumably because this assists with ‘plausible deniability’. Forensic evidence, once destroyed, is lost forever and thus its preservation is of utmost importance.
Unfortunately, the Conservative Government, in an effort to cut public spending have created a crisis in forensic science and made it easier for police forces to destroy forensic evidence. Forensic science has been in a fast-developing state of crisis since the government abolished the Forensic Science Service in 2012 as a cost-cutting measure. The Forensic Science Regulator, Dr Gillian Tully, commented in 2018:
“The strains from many years of funding restrictions continue to impact severely on forensic scientists in policing and the commercial sector. I am sure that all of those involved in forensic science as commissioners, practitioners, leaders or policy makers will agree with my hope that by the time of next year’s report, the situation will have improved significantly. However, it is not clear whether or not this will be the case. It is my view that profound changes to funding and governance are required to ensure that forensic science survives and begins to flourish rather than lurching from crisis to crisis. I hope that those with a mandate for funding and governance will tackle the problems once and for all, for the protection of justice rather than the protection of historic or current policies”.
Dr Tully’s wishes remain unfulfilled. Upon her departure from the role in 2020 her final report continued to reflect shocking standards of ineptitude among private companies providing forensic science services to the police.[i]
Worryingly, given the abolition of the Forensic Science Service and the privatisation of forensic science investigation, things can only get worse. In the UK, a study of court judgements over a seven-year period from January 2010 to December 2016 showed that just over a third were argued to be unsafe because they contained misleading evidence.[ii]
The forensic archive
According to their website “The Forensic Archive was established in 2012 to look after more than four million items relating to forensic examinations and investigations carried out by the Forensic Science Service on behalf of the Criminal Justice System. The material, some of which dates back to the 1930s, includes millions of casefiles, frozen material (such as DNA extracts) and retained items including microscope slides, fibre tapings and recovered hairs.
Private individuals, appellants and defence solicitors, for example, cannot access the archive; their first port of call should be the original investigating police force”.[iii]
In 2012 the BBC reported: The closure of the forensic science archive in England and Wales will cause miscarriages of justice and stop police solving crimes, senior politicians, scientists and lawyers have warned[iv]
The forensic archive has been closed to save money, meaning forces will have to create individual storage systems. The Association of Chief Police Officers (Acpo) said the "consolidated" archive provided a "safe, secure and efficient facility".
Since March 2012 the government stopped the FSS from taking on more material, arguing that it had been losing money. Now, each of the 43 police forces across England and Wales must arrange its own storage of future forensic records. As we have seen in many alleged miscarriage of justice cases, police forces regularly destroy forensic evidence, even when Court orders have been made to preserve the evidence.[v] The closure of the centralised archive facility will inevitably lead to abuses of power by police forces whether by accident or design.
The decision has drawn criticism from experts and campaigners.
Alastair Logan - a member of the Law Society's Human Rights Committee who helped overturn the convictions of the Guildford Four, who were wrongly imprisoned for an IRA bombing in the 1970s - said the closure was an act of vandalism by the government.
"They have destroyed a very valuable resource. They have put nothing in its place and miscarriages of justice will occur," he warned. Speaking to the BBC, Mr Logan also said the move would create a two archive "lottery" - one old and centralised, the other new and fragmented.
"You now have 43 forces keeping their own bits and pieces, insofar as they decide to keep them at all," he said.
"If a perpetrator of a rape, rapes in London and then Manchester, how will it be possible for the London people to know about the Manchester offence?"
No new funding or facilities have been made available to police forces to set up and maintain future storage. Instead, it will be up to individual forces to arrange for a contract with a private provider, or to store it themselves.
The FSS archive is expected to receive £2m a year to sustain its operation and 21 members of staff. Dr Peter Bull, an expert in forensic sedimentology from the University of Oxford, said the measures would be totally inadequate:
"That's ludicrous - that's two sites. They've got to be like Fort Knox. Two million pounds a year won't pay for the paint to keep the walls clean."
In the case of Andy Malkinson, it is noticeable that none of the agencies commenting upon his case have suggested that the two police officers who seemingly conspired to achieve his conviction should be subject to prosecution for, among other possible offences, conspiracy to pervert the course of justice. This is not unusual; in fact it is normal for corrupt police officers or forensic scientists to escape prosecution. This is why a new system is required, a system that could end police corruption in this area immediately. Each case involving forensic evidence requires a senior police officer to be assigned with responsibility for safeguarding the evidence and only that senior police officer should be authorised to approve the destruction of forensic evidence. Thus, there would need to be a system or process for identifying when a case had exhausted all possibilities of appeal.
It is clear that the police cannot both collect and safeguard forensic evidence unless foolproof measures exist to prevent accidental or deliberate destruction of forensic evidence. There needs to be a new law covering the collection and storage of forensic materials and the threat of considerable custodial sentences for those who transgress. I suggest that the punishment for police officers who prevent the safeguarding of forensic evidence should be the time served by the defendant plus ten years.
Thus, in the Malkinson case the police officer(s) who interfered with the forensic evidence would be liable to serving the 17 years that he spent in prison plus an additional ten years. This would stop police officers from destroying forensic evidence overnight.
The Act of Parliament required could be named after the two police officers who ‘fitted up’ Andy Malkinson, i.e. become the Bell/McGreavy Act.[vi]
[i]Forensic Science Regulator annual report 2020 - GOV.UK (www.gov.uk) [ii] Quoted on page 77 ‘Reasons to Doubt’ Hoyle and Sato [iii]The Archive – Forensic Archive [iv] BBC 18 July 2012. Closure of forensic archive a 'shambles', experts warn - BBC News [v] See, for example, Jeremy Bamber Campaign Official Web Site - Peter Tatchell (jeremy-bamber.co.uk) [vi] Steve Bell, a now retired Detective Chief Inspector, oversaw the investigation that put Malkinson behind bars. Underneath Bell was William McGreavy, a Detective Sergeant
By Bill Robertson
Bill Robertson has researched alleged miscarriages of justice for around 20 years and advised on several cases, including the most recent application to the CCRC by Jeremy Bamber.
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