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The Forensic Science Safety Net
By Tracy Alexander BA(hons) MSc on 01/07/14Share:
The long-awaited Supreme Court judgment in the case of Kevin Nunn, who is serving a life sentence for the murder of his former girlfriend, sets out that the Criminal Cases Review Commission (CCRC), the body with the power to refer cases to the Court of Appeal, is the ultimate safety net for anyone who says they have been wrongfully convicted. I have worked in forensic investigation since the early 1990s (before the launch of the National DNA Database), latterly dealing with the CCRC in cases where a prisoner, like Kevin Nunn, protests his or her innocence and wants new forensic work done. So what sort of safety net is the CCRC and is the Supreme Court right to put so much faith in this public body?
For the past 6 years Kevin Nunn’s lawyers have argued that crime scene exhibits which may reveal the identify the killer should be released by Suffolk Constabulary, the original investigating police force and as such official “owners” of the exhibits, for new testing. The work would not be funded by them nor arranged; it would take up only as much of their time as needed to ask for the material to be retrieved by archivists. Yet Suffolk Constabulary has always refused. Whether they had a right to refuse was the issue at stake at the Supreme Court.
The Supreme Court Judgment, while falling short of ordering the police to release the exhibits states at paragraph 42: 'if there exists a real prospect that further enquiry may reveal something affecting the safety of the conviction, that enquiry ought to be made’ so the duty falls to the CCRC. But does the Commission have the expertise to identify what new forensic work could potentially affect the safety of the conviction and even if it does, are the resources in place for that new work to be done?
When a crime is committed requiring forensic investigation a number of exhibits are collected from both suspect and victim by the forensic examiner, and submitted to the forensic provider. Until the 1990s this was exclusively the Forensic Science Service (FSS) but even before the closure of the FSS in 2012, this work has been shared by private forensic service companies. Exhibits are examined and sub-exhibits created, usually in the form of DNA profiles. Original exhibits are returned to the investigating force.
The FSS had extracts and files dating back to the 1940's, predating DNA technology but including many samples which could be tested using modern methods: when it closed all this material was transferred to the care of Forensic Archive Ltd. in Birmingham. Since forensic analysis has been conducted by private companies there has been no requirement to keep extracts, so these may be unavailable for retesting, but files are available for review. Only extracts created by the FSS are held at the Archive so the availability of DNA products from private companies is ad hoc at best. The CCRC may instruct one of the private companies to release information to another, and may also instruct Forensic Archive Ltd to release information. However this presents problems since until very recently the CCRC had no forensic scientist on their staff, and Forensic Archive Ltd is not staffed by scientists, let alone forensic scientists. There are also significant issues in the Forensic Archive Ltd finding items as different FSS lab sites used different numerical systems. An extensive knowledge of FSS protocols is necessary to conduct an effective search of the Archive.
Forensic staff working for one of the private companies may take days, even weeks, to re-examine evidence which may fill many files. Some caseworkers ask for assistance from scientists working for the forensic laboratories to identify new opportunities, but as the labs are profit-making the amount of time allowed is severely limited by financial constraints. It is unreasonable to expect that a Criminal Cases Review Commission caseworker would be able to understand the potential for re-testing without extensive experience in DNA profiling technology and development. Caseworkers often visit laboratories to review files spending a few hours with lever arch files full of DNA results and statistical interpretation but if it would take days or weeks for a scientist to recognise new opportunities, what chance does the CCRC have?
The major flaw in the process is in bringing new evidence to the appeals system. Access to information about which items or forensic files are available for review is granted by the police force originally involved. Experience shows that where a police force feels secure in the conviction they will usually be prepared to release information, but cases have arisen where an individual, a defence team or an independent forensic examiner have been denied access to any information. I am aware of cases where police forces are now refusing to allow defence teams to examine even the paper Forensic File in light of the Nunn judgment.
The case of Victor Nealon refers: Nealon was convicted of a rape which took place in 1996 and jailed, though circumstantial evidence pointed to his innocence and no DNA analysis was carried out. The CCRC reviewed the case in 1998 and 2002 but did not order DNA analysis of the exhibits until 2009. The DNA profile developed was that of an 'unknown male', and could not demonstrate the involvement of Nealon: he was released after seventeen years in prison.
There are thousands of items in the archive with forensic potential from the pre-DNA era and thousands more that might benefit from new technologies, particularly with the DNA database about to undergo an upgrade to DNA 17 technology, with more sensitive profiling methodologies looking at more sites of DNA. From my experience, the CCRC do not have enough staff or time to review a forensic file as thoroughly as a scientist or police officer might and when they do have the opportunity to review a forensic file, they cannot possibly understand the implications of the DNA results or what new science might be applied productively without extensive help from a scientist. When asked for help, the private laboratories will expect to be paid for their scientists’ time and the CCRC simply does not have unlimited resources; they cannot commit to pay for hours of review time when there are so many cases to look at and they have no idea which ones might have something that will really change a case with new testing.
A clear solution is to take commercial expectations out of the equation. If the CCRC used some of its 10% budget increase awarded by the Government last year to employ more forensic scientists the organisation really could be a safety net for innocent prisoners who would in turn be secure in the knowledge their case will be reviewed by an expert working for the Commission able to spot a ‘real prospect’ of a forensic breakthrough which may affect the safety of a conviction.
Tracy Alexander graduated from King’s College London with an MSc in forensic science and sits on the council of the British Academy of Forensic Sciences.
She has worked in forensic science for over 22 years, spending 17 years within the Directorate of Forensic Services at New Scotland Yard as Crime Scene Manager for the Homicide Command and latterly as Head of Forensic Intelligence.
Thereafter she worked for several years as a cold case investigation specialist at LGC Forensics. She is a member of the Inside Justice Advisory Panel.