Oral evidence: Forensic Science Strategy, HC 501Wednesday 6 July 2016
Oral evidence, 6 July 2016.
Witness
Rt Hon Mike Penning MP, Minister for Policing, Fire and Criminal Justice and Victims, Home Office, gave evidence.
Chair
Minister, thank you very much for coming to appear before us. We are very pleased to see you. I know that you are aware of our previous session, in which we discussed issues arising from the forensic science strategy, and some concerns were raised around statutory powers, research and development and other things. Colleagues will raise some of those issues, but I want to start with a high‑level question as to the nature of the strategy itself. It came rather late—a couple of years after it was promised—and when it did it was quite a high‑level document. It still speaks of continuing scoping work. Why is it so high level? Why is it not more detailed, given how long it has taken to produce?
Mike Penning
I am sure the Committee is much more knowledgeable than I am on this, simply because it is so complicated and such a fast‑moving feast. The other issue you touched on, I have corresponded with the Committee on. Although I do not know what other Ministers do, I try to correspond with the Committee much more than perhaps previous Administrations have done, simply because it is better for you to know where we are coming from, rather than being shocked when I arrive saying, “This is what we are doing now,” or whatever. I am quite determined that the strategy is not a fixed entity. Given the nature of the science moving forward and the nature of the technology as it moves, if we fix it and do not at this stage have it fairly highbrow, which is probably a better way to describe it, we will lose the credibility of where we need to be. That is one of the reasons. As to its lateness, I am the Minister, so I apologise for my predecessors, but we have to get it right. The degree of stakeholders—the modern word for it—is just astronomical. The other thing is that, because of what the Committee said about the regulators and biometrics/forensics, I wanted to get it right, basically. If I had come in with a very basic document, which probably I would have understood, I might have been criticised for not being highbrow enough, so I probably can’t win.
Chair
Yes, although we had a lot of the stakeholders, as you say, giving evidence before us, and while you are right that it is important to have a framework that can accommodate technological advance and innovation, we are also talking about providers who are in the private sector, who are considering employing staff, and are considering expansion and investment, and they need a degree of certainty as well. One of the particular areas of confusion or uncertainty for them was the proposal for a national approach. It said in the strategy that there was going to be “scoping work” to put forward business cases for a national approach to be completed by the spring. That had not happened by the time we had our last session. Could you update us on that?
Mike Penning
Yes. I would like to have done it by then. Because we are very much looking at the providers, whether from the police or in the private sector, and I am desperate to make sure we do not have duplication and that we have cost‑effectiveness and quality of product coming through, the work the police are doing at the moment on their capability review has an ongoing effect as to where and who is going to deliver forensics. One of the frustrations you have heard from the regulator, and one of the things that really concerns me, particularly with the private sector, but not solely with the private sector, is that we have the quality there, making sure that what is being put forward as evidence in a prosecution, and actually in many ways evidence put forward in a defence, has the credibility of the scientific profession as they go forward. I am very open about this; I am very frustrated that the police capability review is not further forward. It is holding me up in other areas, particularly in police funding, but this is an area that is now going to be driven very much by the police. Where and who delivers that has to be a matter for them, but we must have quality at the same time. I accept that there are concerns about, for instance, R and D and that side of it, but we will get there and then they will know exactly where they are.
Chair
If one of the roadblocks is police capability, certainly at the moment, you could still help us by giving a vision for how you think you are going to match those two divergent challenges, which is a strategy that allows for innovation but still provides the underpinning certainty. At the moment it may be that external forces mean that that certainty is not in the document yet, but what is going to be in there that will provide it?
Mike Penning
We will come on to the regulator’s powers and accreditation. I am passionate about that and I was hearing from the regulator that there is real concern that people are calling themselves experts and doing work, particularly on the prosecution side, that may not be accredited and probably could not possibly be accredited. Going forward, contracts will be issued, but we need to make sure that delivery of expertise is nationwide, whether it is at NCA level or ROCU level—the forces doing their own thing—and that we are getting value for money for that. That is an area in which a lot of work is still going on.
Chair
You spoke about the sheer number of stakeholders being enormous; I think you said it was staggering. In our last session in April, we had a number of stakeholders before us and they said that they had not been involved yet in the scoping workshops for the national approach, and this was sparking some of the concern about what that national approach would look like.
Mike Penning
I saw that and asked my officials to address it. I am confident that if you called them back now—not all of them because there are so many stakeholders and invariably you will not be able to keep everybody happy, but I saw that and I was surprised—
Chair
Who exactly is leading on this work and making sure that the right people are involved? It seems to us fairly obvious that the regulator should have been consulted, for example.
Mike Penning
Yes, and I have met the regulator recently and we discussed this. It is a Home Office drive and the regulator is independent from us, of course, but that does not mean that the regulator’s influence should not be absolutely paramount, I agree. At the end of the day, the buck stops with me and my officials.
Chair
All right. Thank you very much.
Dr Mathias
In our April session we learned about a draft document detailing the statutory powers for the forensics science regulator to enforce her codes of practice. Have the statutory powers been finalised, and do you know what the powers are?
Mike Penning
The exact powers we need to consult on. I need primary legislation. I have looked for other ways of delivering what we would expect the regulator’s powers to be, but at the end of the day I need a vehicle. I would like to have put it in the Policing and Crime Bill.
Dr Mathias
Thank you for your letter, but it appeared it was not a priority. That is how it appears.
Mike Penning
I had a Bill of 200 pages with 200 amendments and new clauses, and the pre‑legislative scrutiny said to me in no uncertain terms, “Enough is enough. You need to come forward with another Bill.” Parliament, quite rightly, gets concerned when Governments come forward with so many amendments and changes to Bills. I bid for a Bill, with the Home Secretary’s permission and the Justice Secretary’s permission, which is a huge Bill, and there were just concerns that I was adding too much to it and making too much, so I need another vehicle. There will be a Home Office Bill of some description—there always is—and we will find a vehicle. I am absolutely determined. It is a commitment I have made: we will find a vehicle for primary legislation.
Dr Mathias
Yes, because there is concern—I have to declare an interest, because I have LGC in my constituency—about the deadline, October 2015. When do you think the regulator will be given the statutory powers?
Mike Penning
I cannot give the Committee that answer. It would be wrong of me to lead the Committee down an avenue when I just do not have an answer. I passionately believe that Ministers should not do that. All I can say is that when I took over this responsibility—I have not had it for that long—I was surprised that the regulator did not have statutory powers, because I cannot understand how you set up a regulator that does not. I am honest about that.
Dr Mathias
I appreciate that you had so much in your Bill, but you can understand, as a constituency MP and on our Science Committee, that this is a high priority.
Mike Penning
Yes, and the Chair and I have spoken extensively about this and hopefully you feel from the correspondence that I have sent in, and as I will re‑emphasise when I write back to the Committee after this session, that if I could have had it in the Bill I would have had it. I am a Minister of State. That is a subtle hint.
Dr Mathias
In your letter, you say police forces are committed to meeting the accreditation deadline. Do you know what percentage?
Mike Penning
I have the details. I can write to the Committee with the full details. Of course, there are different areas—fingerprinting, as an example—but all the new chiefs have agreed this and we are going forward. The more difficult area for the police to come up with, which is why we have the capability review going on now, is the technology that is around. When we look at hard drives, if we are investigating paedophilia on the dark web, where exactly do we get that expertise from and should it be held at a national level?
Dr Mathias
I have to be so careful because of my interest.
Mike Penning
My view is that, while this is a decision very much for the police and the CPS as well, but predominantly with the police, holding it locally could speed it up, but only if you have the capability and the expertise, whereas if you at a national level—
Dr Mathias
We get that.
Mike Penning
It is really tough for some forces to give all that up, but I think the police are getting that now more and more, in other areas as well as this.
Dr Mathias
Thank you.
Chair
Can we go back to procurement? You mentioned this a little bit in the opening questions, but, as I understand it, the current national procurement arrangements are due to expire on 31 July.
Mike Penning
Yes.
Chair
Do we have details of what is going to replace them and what it is going to be?
Mike Penning
Yes. The police have given me assurances, which I will write to the Committee with, as they move on with their procurement. Some of those contracts, I suggest—I am speaking on their behalf—probably will not be long‑term contracts while they continue to do the review as to where they are, but they have it in place and they are giving me confidence that they are happy from the end of July onwards.
Chair
Is it just a continuation of what is there now, while they are doing the capability review?
Mike Penning
It is; predominantly it will be, yes.
Chair
We are not moving to a national procurement arrangement of any kind in forensics particularly, or in any other areas.
Mike Penning
No. That would be completely against Government policy.
Chair
Different police forces will be free to choose their own—
Mike Penning
Yes—I am sorry to interrupt you—but the clear thing has to be the quality of the work that is done, the value for money as to how it is done and the speed, especially with the requirements in the Bill for police bail not to be extended beyond 28 days except in exceptional circumstances.
Chair
If new procurement arrangements are being put in place, is this not an opportunity to require that all work done by police forces is performed by suitably accredited providers? Obviously, we are still waiting for a legislative vehicle for the statutory powers for the regulator and this might be a way to—
Mike Penning
Yes, I think I completely agree with you, Chair. If I am waiting for the vehicle, that means I cannot at the moment force the forces, but—I will say it on the record—I cannot understand any force using a company that would not be accredited.
Chair
Are you able to put that into procurement arrangements in any way?
Mike Penning
I cannot at the moment.
Chair
What powers do you have?
Mike Penning
I think technically I have the powers to do so, but that would interfere with the way we want forces to develop their own strategies on procurement. Let me draft a letter to the Committee on that. But I say again that the accreditation is there for a reason. I am hearing, and the regulator told me this, that there are occasions when there is real concern about the quality of the so‑called experts being used.
Chair
Yes, there is.
Mike Penning
The accreditation is for that. If I find, going forward—whether it be me or another Minister in this position—that that is being ignored, the statutory powers can be put in. They can do it by regulation.
Chair
There has been a lot of delay in this process already, for lots of different reasons; we have delay waiting for a legislative vehicle, for statutory powers to come in and to get accreditation well under way. There appears still to be resistance to using accredited providers and to different providers getting powers, and while everybody is interested in devolution of power and so on—I entirely support that—there are occasions when intervention becomes necessary, and it feels to me that in this particular instance there have been lots of opportunities for all the different actors to behave in the way the Government would expect and have signalled very clearly that they expect. I wonder whether this might not be an occasion to use those powers, and not delay.
Mike Penning
I reserve my position in that we have the powers to do so, if we need to, or we can seek the powers to do so. I fully expect, given the conversations I have had, particularly with the leads from the police, that this is where we will be, but, as I say, if we do not, my devolutionary thought process and the Government’s devolutionary thought process may need to step in. I agree with you on that.
Chair
My last question on this topic is on concerns that were raised around some of the procurement that was happening, where there was fragmentation of procurement with a single case procuring different tests from different providers and this leading to no single provider or expert having an overview of the whole case. There were concerns about the robustness of the evidence that was coming forward as a result of that and a question about whether there needed to be steps within the procurement process to try to address the problem.
Mike Penning
I have to be slightly careful there, because I would be interfering as a Minister within a police investigation‑type situation.
Chair
It is not specific to an investigation. It is more a procurement process that is needed.
Mike Penning
How a force puts together a case against an individual is a matter for them. I have heard a little bit about it, but I have not seen the evidence on it. I have asked the regulator, and I will reiterate that, and she will surely listen to what we are saying today. “We will pursue that” is the polite way of putting it.
Chair
Thank you.
Graham Stringer
Can I get the Brexit question out of the way first? There are research bodies in the country receiving Horizon 2020 funding for forensics. Have you done any work or contacted the Cabinet Office to see how that funding can be continued in the future?
Mike Penning
There is no agreement in Government beyond the present funding term. It is a bit early for negotiations beyond 2020. At the Home Office, we did exceptionally well with the last funding round. I am sure those sorts of negotiations will start, but looking at 2020 when we are in 2016 is too early for me, but they continue to have the funding because the success of getting it from 2010 to 2020 was significant anyhow. We have not started conversations yet, to be completely honest.
Graham Stringer
Thanks. This Committee and its predecessor Committee have been aware of the changes in the forensics science service for some time and shown concern. This is not a party political point, because I think the last Labour Government made a mess of closing the Chorley forensic science service, and I do not think the incoming coalition did much better when it closed down the Forensic Science Service. It seems to me that there are two gaps in the service and there is disagreement between Home Office officials and the regulator. One gap is the loss of contextual analysis when the whole Forensic Science Service went. Dr Tully has been in front of the Committee twice and told us that she thinks it is likely that people guilty of serious crimes are getting away with them. That is one gap. The second gap, because so many researchers have moved out, is whether there is enough research being done. It is not a party political point, but one gets a defensive response from the officials involved. I wonder whether you, as a Minister, are as concerned as I am about those two gaps in the service.
Mike Penning
First, thank you for being so honest about what happened before, rather than just saying it is this nasty horrible new Government. In hindsight, lots of Ministers would say that things could have been done differently. I am not as concerned, but I have heard the evidence that has been given to the Committee and, frankly, has been given to me as well. On the R and D side, there is a separate sort of funding stream; for instance, extensive amounts of innovation fund moneys have been coming out, and I encourage companies, providers, to work with their local force or with their regional force in collaborative bids for that. On the area of contextual analysis, I share a bit of that concern with you. One area I have concerns about is that, if we use a private provider and that private provider, for instance, goes into administration, we do not at present have the capability to require all that contextual research background information to be supplied back to us. That is something I am looking at now, and in the legislation we will probably have to put those powers in. If you have been doing X amount of work for two or three years in a particular area, you obviously build up a knowledge base and you can refer back each time—I am not using scientific jargon; I am sorry, I am not a scientist or a lawyer—which is actually hugely useful to us. If that company goes into formal legal administration or receivership, for us not to be able to have that data and information, as we would if it was in‑house, is a dangerous situation and I fully intend to try to sort that out. I accept that there is still ongoing disagreement about what the Government did at the time, but we are where we are and we need to make sure we get the best possible outcomes, the best possible R and D and the best possible contextual work.
Graham Stringer
It is really about filling those gaps. If I can move on to a different area, only a small proportion of cases involving forensic science evidence reach the courtroom. Do you have a view on why that is, and do we need to understand more about why it is?
Mike Penning
I think we do. I am looking now for evidence to be brought to me as to why that is. I must admit that, when I first looked at my portfolio and saw that, my perception was that the number was much higher—especially considering the public’s perceptions about forensics, with all those strange programmes on TV every night showing you that every murder in the world gets resolved because of some tiny hair on something. First, we have to find out why, and I will commission research to do so. Depending on what the research shows, do we then say that it is because we think forensics could do much better and it doesn’t in court, or do we need to get better at it? The analysis needs to be done not just here but with our counterparts around the world. In other words, we are going to need to compare ourselves in the 7% you refer to, “Is that normal for America or the rest of Europe?” We cannot compare 100%, because many of their legal systems are slightly different from ours, especially the American legal system, but that is an analysis that needs to be done.
Graham Stringer
That is interesting. There is a drop in demand that makes it more difficult for the private sector providers to make a return, and they also concentrate on areas of forensic science that are repeat processes, like fingerprinting and DNA analysis. Do you have a strategy to incentivise the private sector to invest in research in wider areas than those repeat processes?
Mike Penning
As I alluded to earlier, private companies will invest if they feel they can deliver a product that we are likely to buy, and very often, particularly with the nature of the way the Home Office works, we have had to incentivise that by giving them some confidence about the evidence base. In other words, we have been more promptly using the innovation fund moneys. There will always be areas where the private sector may not be able to provide, because it is such a niche situation, which is why forces will continue to do stuff, probably at national level, and that is exactly why the review that is going on at the moment should—I stress should—address some of your concerns. At the end of the day, we need to understand why there has been a drop in demand in certain areas and address that situation.
Dr Mathias
The forensics strategy says the Government plan a “clear, simple, overarching governance structure.” How is that going to be made possible?
Mike Penning
At the moment it is quite opaque, and you have probably adduced that from the evidence you have been given. If we believe in devolution and the devolution powers, that governance structure has to come from the powers we give the regulator, but at the end of the day the police take control. That is where this whole strategy is going, but we have to publish things that we probably would not have published before. The more we can do that, the more confidence there will be within the private sector and the more confidence there will be among the public. I have been in six Departments, and I have always had the attitude that we should publish, and you have to tell me why we should not publish. That was quite difficult when I was in Northern Ireland on terrorism and there are lots of the things at the Home Office that could be difficult, but in this particular area I cannot see why we would not be more open, rather than opaque as we are now.
Dr Mathias
Are you going to publish minutes and the full membership of the forensic policy group?
Mike Penning
I think wherever we can, that is what I would prefer to do, yes.
Dr Mathias
Will you be doing that? That, I believe, was highlighted by the previous Science and Technology Committee as being too opaque. Again, the question is why cannot those minutes and membership be published now?
Mike Penning
I do not know the answer—literally; I am honest about that. If we need to redact, we need to redact. I don’t like huge documents redacted, but we could write back. My attitude is that if we are going to keep the confidence of the market and the confidence of the public, which is probably the most important thing, and for the police to have confidence in the strategy as we go forward, let’s be open.
Dr Mathias
You can come back to us and tell us if there is any reason—
Mike Penning
Yes, of course. I tend to write back to Committees rather a lot after I have been there because of all the mistakes I make.
Dr Mathias
I absolutely appreciate that, but you can come back to us and tell us if there is any problem about publishing that policy group now—the full membership. Finally on that, what role do you envisage in the future for the forensic policy group?
Mike Penning
If it does what it says on the tin, it is probably one of the most important groups out there if we can get the right membership—the right people on it. There may be some people on it who prefer not to be named and we might have to respect that, but I will have to explain that.
Dr Mathias
You can come back to us on that.
Mike Penning
If we are where we are, which we are, it is a vitally important group and it should do what it says on the tin.
Dr Mathias
Okay. It is great to hear you saying that it should be, wherever possible, transparent and published. That is great. Thank you.
Chair
Minister, you have spoken quite a bit about your frustration with the policing capability review.
Mike Penning
You can hear it in my tone probably.
Chair
And the expression on your face—an open book. Could you give us a bit of an indication of the timings that you are now expecting from the review, given the impact that it is having elsewhere? I am thinking procurement and progress with the strategy, and I suspect it will affect the biometrics strategy as well, or am I being too pessimistic?
Mike Penning
On the biometrics strategy—well, on both—what I would really like to do, frankly, is to go away and come back with a more definitive answer than just saying I will do it as soon as possible.
Chair
Okay. You don’t have a date for the capability review and you don’t have a date for biometrics.
Mike Penning
I don’t have a date that I can be confident about to give the Committee on either. On that basis, I would rather commit myself in writing to the Committee and then perhaps that will commit my civil servants to push on as fast as I would like them to do.
Chair
That is terribly Jim Hacker. I want to go back, finally, to the national approach. I am concerned that if we have forensics providers, or others, who watch this, they may feel no more certain about what the national approach will look like. There is not going to be a national approach in procurement and there is not particularly going to be a national approach in research. What is the national approach going to be?
Mike Penning
Perhaps I have misled the Committee. That is not what I am saying. We need to have a national approach. The reason we have to have a national approach is that, if you go into one court with one group of people, you need to be competent in the next court with the next group of people. That is the national approach I am looking for. If people are providing a quality product, which is accredited, that is exactly where we need to be. I want them accredited. I want the statutory powers in place, not just for the private sector but when police forces are not up to standard, and a regulator that has teeth. There is no point just having statutory powers that do not have teeth. We will consult on that and make sure that it is not Big Brother, but, on the other hand, there has to be a stick that comes with the carrot, and the carrot is that you are registered and accredited. The stick is that you need to make sure that the quality is there and that we have power to do something about it.
Chair
In essence, it is going to be statutory powers plus accreditation.
Mike Penning
Yes.
Chair
All right.
Mike Penning
If you listen to what I said earlier on, I would expect everybody to be accredited if they are used. At the moment, that is not necessarily the case. If it is the case that they carry on using people who are not accredited, I reserve the power to come back.
Chair
The procurement intervention power. Okay. I have one last question, just to follow‑up on Graham Stringer’s point. The strategy says that “significant savings” could be produced from this national approach, which could then be recycled into priority areas of research. We have obviously heard concerns about that. Can you give us an idea of what assessment you have made of that? How big would those savings be? Do you think they would genuinely provide extra money? Would we be able to increase research in this area?
Mike Penning
As I have already said, there is money available within the innovation funds for research and work in this area. The saving area will be in duplication. As to extra money, I do not have extra money; let’s not beat about the bush on that.
Chair
No, but the implication is that changing the way in which forensics are delivered will produce extra money, which will be “recycled into priority areas of research.” It says “significant savings.”
Mike Penning
I think there will be significant savings, but until we know exactly how the delivery points are going to be, whether national, regional, in clusters or at force level, we will not have anything definitive, but there will be some modelling that I could share with the Committee, which I will come back to.
Chair
If you could share that modelling with us, we would be very grateful. Thank you very much for coming in.
Mike Penning
I found it fascinating. I found it fascinating trying to get my head around the briefing notes as well.
Chair
It is a very interesting topic but it is also a very important one; it is the bedrock of our criminal justice system.
Mike Penning
I have one last point. I think it is really very important, and I am not just saying that because the Committee has been doing an investigation into this, not least because we have to have the confidence that the court process, which we are using forensics on, is actually the best in the world and we can deal with that, going back to Mr Stringer’s point about the 7%, right or wrong, in national comparisons. The answer is that we do not know yet, but we will find out, and I will share that.
Chair
Thank you very much. We are expecting a number of pieces of correspondence from you. We might write to you just to note what we think we are getting so that we are all on the same page. In the meantime, thank you very much for coming, Minister.
Mike Penning
It is a pleasure. Oral evidence: Forensic Science Strategy, HC 501 19