Marktwerking in het forensisch onderzoek. Een veldverkenning
Onderzoek in opdracht van het WODC van het Ministerie van Justitie
TILT – Tilburg Institute for Law, Technology, and Society i.s.m. NHL Hogeschool en Universiteit Nyenrode
Bert-Jaap Koops Rutger Leukfeldt Bob Hoogenboom Wouter Stol
augustus 2010
T I L T – T i l b u r g I n s t i t u t e f o r L a w , T e c h n o l o g y , a n d S o c i e t y Postbus 90153 • 5000 LE Tilburg • Bezoekadres > Warandelaan 2 • Tilburg
Telefoon 013 466 81 99 • www.uvt.nl/tilt/
Ex ecutive Summary
Motive, research question and method
F orensic sc ienc e c ontributes to evidenc e in c riminal c ases. A s a result of tec h nologic al advanc ements, muc h value is attac h ed to th e possibilities offered by forensic tec h nologies to c ontribute to c riminal investigation. Th is report foc uses on tec h nology -related forensic sc ienc e, i.e., researc h targeted at th e development and applic ation of sc ienc e and tec h nic al meth ods th at investigate trac es for intelligenc e or evidenc e purposes in th e c riminal justic e sy stem.
V irtually all tec h nology -related forensic sc ienc e in th e N eth erlands is traditionally c arried out by th e N eth erlands F orensic Institute (Nederlands Forensisch Instituut, N F I). A signific ant inc rease in th e demand for forensic sc ienc e over th e past few y ears and th e appearanc e of several alternative suppliers on th e market h ave raised th e q uestion wh eth er oth er institutions besides th e N F I c an or sh ould play a role in tec h nology -related forensic sc ienc e in c riminal
matters, and wh eth er (more) c ompetition c ould or sh ould be introduc ed in forensic sc ienc e sec tor.
Th e objec tive of th is researc h is sketc h th e c urrent forensic -sc ienc e landsc ape in th e N eth erlands and to indic ate h ow th e polic e, th e judic iary , providers of forensic sc ienc e, and ac ademic s in th is field view c ompetition in th is area. Th is objec tive brings us to th e c ore q uestion of th is researc h : c an private and ac ademic or h igh er professional educ ation institutes play a role in tec h nology -related forensic sc ienc e in th e N eth erlands and, if so, under wh at c onditions?
Based on interviews, ex pert meetings and additional desk researc h , we survey ed in wh ic h areas tec h nology -related forensic sc ienc e was c arried out in rec ent y ears, wh ic h institutes were used and wh y , wh at c onditions and guarantees apply or sh ould apply in th e N eth erlands in forensic ex aminations, and wh ic h effec ts and possible side-effec ts are ex pec ted if c ompetition is introduc ed. To set th e D utc h landsc ape in perspec tive, we h ave also desc ribed h ow forensic sc ienc e is c arried out in th e U nited Kingdom and th e U nited States.
Th is researc h h as an ex ploratory c h arac ter. It offers a first sketc h of th e forensic -sc ienc e landsc ape in th e N eth erlands, of wh ic h few empiric al desc riptions are available. Th e q ualitative interviews and ex pert meetings offer a view of c urrent developments and views, but th e opinions were mostly ex pressed on a personal basis and are th erefore diffic ult to generalize. Emph asis was given to a q ualitative ex ploration; no q uantitative researc h h as been done into, for ex ample, th e nature and ex ac t ex tent of forensic ex aminations by oth er providers besides th e N F I. A s a result, generalization of th e researc h findings is limited. Th e purpose is to provide a field sketc h th at serves as a basis for furth er polic y -making for th e future of forensic sc ienc e.
The landscape of forensic science in the Netherlands
A lmost all tec h nology -related forensic sc ienc e in th e N eth erlands is traditionally c arried out by th e N F I, wh ic h was c reated in 1999 by merging th e F orensic Laboratory (Gerechtelijk Laboratorium, founded in 1945) and th e Judic ial M edic al Laboratory (Laboratorium voor de Gerechtelijke Pathologie, establish ed in 1951). O nly a frac tion (estimated to be less th an 1% ) of all th e researc h is c arried out by oth er institutions, suc h as th e F orensic Laboratory for D N A Researc h (F LD O ), Independent F orensic Servic es (IF S), V erilabs, F ox -IT and Th e M aastric h t F orensic Institute (TM F I). F rom time to time, forensic ex aminations are also c arried out by (semi-)public institutions suc h as TN O or th e N ational Institute for Public Health and th e Environment (RIV M ). V arious disc iplines are used, mainly D N A investigation (e.g., F LD O , V erilabs, IF S) but also digital ex aminations (F ox -IT) or tox ic ologic al ex aminations (e.g., TM F I).
A n important reason for h aving oth er institutes c arry out an ex amination is c ounter-appraisal.
O n 1 January 2010, th e Ex perts in C riminal M atters A c t entered into forc e, wh ic h provides th e ac c used with a general statutory righ t to a c ounter-appraisal by an independent ex pert. In th e c ontex t of th is report, th is means an independent forensic -tec h nic al ex pert. In prac tic al terms, th is implies th at th e ex pert will work at different laboratory to th at of th e ex pert wh o c arried out th e initial investigation. Th is suggests th at th e law h as already ex c luded th e possibility th at only one institute c arry out tec h nology -related forensic sc ienc e, even in spec ific areas of ex pertise. A suspec t must alway s h ave th e righ t to req uest a c ounter-appraisal. It seems reasonable to assume th at th e suspec t must be able to h ave th is c ounter-appraisal c arried out in th e
N eth erlands, also bec ause translation of foreign-language reports is not an easy task. However, th ere c ould be c ases involving, for ex ample, a rare field of ex pertise, wh ere a suspec t is unable to
find an independent sec ond ex pert in th e N eth erlands and will th erefore h ave to rely on ex perts from abroad; th ose will be ex c eptions th at c onfirm th e rule.
O ur (q ualitative) study does not provide any q uantitative information about th e c ases wh ere private or ac ademic institutes h ave been used by th e polic e and th e Public Prosec utor’s O ffic e (O p enbaar M inisterie). Wh at is c lear is th at it usually involves D N A c ounter-appraisal or oth er forms of c ounter-appraisal, as well as labour-intensive c ustomized or spec ialist ex aminations, suc h as digital analy sis. U sually , it c onc erns an investigation at a later stage in th e investigation proc ess. A n important reason for c ontrac ting private or university /professional-educ ation institutes for investigations is an ex pec tation of fast results. Th e organisations th emselves also say th ey c an c ompete in q uality ; th ose req uiring th eir servic es are, h owever, often unfamiliar with th e q uality (and q uality -assuranc e sy stems) of th ese providers and c h oose, in many c ases, th e N F I as ‘preferred supplier’.
Th e prac tic e of tec h nology -related forensic sc ienc e th us sh ows th at, in addition to th e N F I, various oth er forensic -sc ienc e providers supply th ese servic es. Providers keep a vigilant ey e on eac h oth er and th is affec ts th eir produc t supply . In th is sense, th ere is a modest market of supply and demand, but c ompetition is very limited. Th e N F I does not h ave a legal monopoly , but it does enjoy a privileged position. F irstly , th e N F I h as an ex c eptional position bec ause of th e financ ing sy stem. F orensic investigations are financ ed th rough bulk funding to th e N F I (approx . 65 million Euros, 15% of wh ic h is for researc h and development) out of th e M inistry of Justic e’s budget, wh ile c apac ity levels per produc t group are establish ed in a Servic e Level A greement. Th e polic e and th e judic iary do not h ave to pay for work by th e N F I as long as it is c overed by th e Servic e Level A greement. Th ey do h ave to pay for investigations c arried out by oth er providers.
Sec ondly , th e polic e and th e Public Prosec utor h ave a tendenc y to approac h th e N F I first, bec ause th ey h ave alway s done so. Wh en th e N F I is unable to provide a servic e, th e N F I often ac ts as a broker for th e demanding party , and it profiles itself as a leader in th e field. In addition to th e benefits of its financ ial position, th e N F I also owes its dominant position to th e polic e and th e Public Prosec utor’s apprec iation of th e q uality of work th at th ey traditionally assoc iate with th e N F I. In sh ort, th e N F I is th e dominant play er in th e forensic -sc ienc e field th at owes its partic ularly strong position to th e h istoric al development and th e financ ing sy stem in c riminal justic e
forensic s. We c an probably say th at th ere is a modest market in th e N eth erlands at present, but th ere is c ertainly no q uestion of a free, c ompetitive market.
Q uality assurance
G ood-q uality forensic investigation is essential for th e reliability of forensic evidenc e. Tec h nology - related forensic sc ienc e in th e N eth erlands is – to a greater or lesser degree, dependent on th e area – subjec t to a q uality assuranc e sy stem using different instruments. Th is inc ludes laws and regulations, ac c reditation by th e C ounc il for A c c reditation based on ISO Standard 17 025, and all kinds of self-regulation, suc h as c ertific ation of sc ientists by an ex ternal body , peer review by c olleagues, and internal audits. Relatively few statutory rules apply to forensic investigation; only for D N A investigations and, to a lesser degree, blood and urine tests for alc oh ol-related traffic c ontrols is a legal framework in plac e with various q uality assuranc e measures, inc luding
c ompulsory laboratory ac c reditation. In addition, th e Ex perts in C riminal M atters A c t, wh ic h c ame into forc e on 1 January 2010, sets req uirements for ex pert evidenc e in c ourt, and a N eth erlands Registry of C ourt Ex perts (Nederlands R egister Gerechtelijk D eskundigen, N RG D ) h as been c reated. M ost of th e institutes working in th e N eth erlands are ac c redited for one or more forensic servic es, and th ey use various ty pes of self-regulation.
A lth ough q uality will ultimately determine th e evidentiary value of forensic sc ienc e in c ourt, and in th at sense is seen by th e field as th e main req uirement of tec h nology -related forensic sc ienc e, speed also play s an important role. F or various reasons, some matters c an get stuc k on th e sh elf;
th is results in a work bac kload resulting in a loss of speed below a c ritic al level, wh ic h prevents th e polic e from doing th eir job well. In addition, th e polic e sometimes need a forensic ex amination for intelligenc e purposes, to q uic kly assist th em in determining th e direc tion of th e investigation. In suc h c ases of ‘indic ative ex amination’, th e value of speed bec omes more important relative to th e value of q uality . In addition to th e parameters of speed and q uality , safety also play s a role, espec ially for safeguarding ph y sic al trac es in th e c h ain of c ustody (for wh ic h F orensic -Tec h nic al Standards h ave been developed) and also for safeguarding th e integrity of forensic sc ientists. F or th e latter purpose, sec urity sc reening c an provide a c ertain guarantee, alth ough in prac tic e, fewer forensic sc ientists are sc reened th an is often th ough t by th e field.
In c riminal investigations, one ty pe of trac e does not provide th e ultimate answer bec ause eac h trac e h as its own weaknesses; th is is also true for q uality assuranc e measures. Here too, a c ombination of instruments appears to be nec essary . A c c ording to th e multi-lay ering model, an intelligent c ombination of q uality measures c an provide a satisfac tory outlook to establish a sy stem th at ensures suffic ient q uality of tec h nology -related forensic sc ienc e. Th e c ore of th e multi-lay ering model is th at th ere is no 100% guarantee sec urity lay er; only wh en multiple lay ers of sec urity are stac ked on top of eac h oth er, will gaps in th e underly ing lay ers gradually be c overed. In th e sec tor of public sec urity , th is model h as two lay ers; a first lay er of laws and regulations sec ures ac c ess to th e market and dic tates th e basic proc edures to be followed, and a sec ond lay er foc uses more on th e q ualitative aspec ts of th e design of work proc esses and reporting. Suc h a c ombined or integrated q uality approac h is eq ually applic able to a monopolistic forensic market as it applies to a c ompletely free market of forensic sc ienc e. Th erefore,
regardless of h ow th e market will ultimately look like, working towards a c ombined, multi-lay ered q uality assuranc e sy stem is a sensible investment.
A g limpse over the b order
Th e U nited States and th e U nited Kingdom provide interesting material for c omparison with th e N eth erlands, bec ause both c ountries h ave c ompetition in th e forensic -sc ienc e market. Th is h as traditionally been th e c ase in th e U nited States, wh ereas in th e U nited Kingdom c ompetition was introduc ed during th e past dec ades, wh en th e F orensic Sc ienc e Servic e was made a
(government-owned) c ompany and its forensic -investigation budget was transferred to th e polic e.
Both c ountries h ave a diverse landsc ape of providers, both public ly and privately financ ed ones.
Th e landsc ape in th e U nited States is c onsiderably more fragmented th an th at of th e U nited Kingdom, not only bec ause it is a bigger c ountry but also bec ause of its long tradition of a free, c ompetitive market and relatively little government regulation. A lth ough our study aimed at h igh ligh ting best-prac tic e ex amples from th e U nited States and th e U nited Kingdom, we must perh aps c onc lude th at th e primary lessons to be drawn c onc ern rath er wh at h as not gone well in th eir sy stems.
Th e effec ts of c ompetition in th e U nited Kingdom (as far as th ey c an be assessed based on our limited researc h ) seem to point to effic ienc y improvements (lower pric es, q uic ker proc essing times), but also to sh oc k effec ts bec ause of an (ac c ording to some, too) abrupt transition to free c ompetition, with an ex c ess of supply and as a result, too muc h pric e c ompetition. We c an c onc lude from th is th at it is prec isely th e transitional ph ase from a monopoly to a (more or less) free c ompetitive market th at req uires a lot of attention; it is worth c onsidering a gradual
introduc tion of c ompetition in th e market. In addition, attention sh ould be given to (fundamental) researc h and development; ac c ording to some respondents, th e former monopolist F orensic Sc ienc e Servic e’s strong international reputation in th is area h as signific antly dec lined. In our study we c ould not determine wh eth er th is effec t is offset by an inc rease in (fundamental) researc h and development by oth er providers; th is is a q uestion th at req uires furth er researc h .
Th e ex perienc es in th e U nited States (as far as available on th e basis of our limited desk researc h ) indic ate th at an overly free c ompetitive market with out governanc e and regulation h as many disadvantages, inc luding large differenc es in q uality , q uality assuranc e and training, little attention for (fundamental) researc h and development, and a relatively poor knowledge base of forensic sc ienc e. Th e N ational Researc h C ounc il’s rec ommendations regarding th ese
sh ortc omings c an prove valuable for th e disc ussion in th e N eth erlands, for ex ample, regarding wh eth er or not a N ational Institute of F orensic Sc ienc e sh ould be set up for monitoring,
governanc e, and/or advic e, and wh eth er more stringent q uality instruments sh ould be introduc ed.
O ur glimpse ac ross th e border indic ates th at options sh ould not be sough t in ex tremes, but by making a c h oic e between th e best of both worlds: market c ompetition and regulation. Th e most important lesson from both th e U nited States and th e U nited Kingdom is th at th e forensic -sc ienc e market c an only mature if th ere are c lear, enforc eable rules for q uality of forensic servic es. Th is is not only important for providers th emselves, so th at th ey know wh ic h rules and c onditions apply wh en th ey want to play a role in th e forensic market, but also for th e demand side, so th at th ey h ave guidelines to h elp th em dec ide wh o th ey want to engage for forensic investigations.
C onsiderations for introducing competition in forensic science
V iews are divided as to h ow th e forensic -sc ienc e field in th e N eth erlands sh ould develop and wh eth er (more) c ompetition c an or sh ould be introduc ed. D ifferent c onsiderations and c irc umstanc es play a role. We c urrently see at least some market func tioning of supply and demand, if we want to c h arac terise as suc h th e fac t th at oth er providers ex ist besides th e N F I. In any event, th ey h elp keep th e N F I on its toes. However, is not easy for newc omers to c apture a larger sh are of th e market – th e N F I h as an establish ed position and its financ ing struc ture poses too muc h of a barrier. D espite c ritic ism (wh ic h is oc c asionally still h eard) from th e polic e and th e Public Prosec utor about th e length of proc essing times and about parts of N F I’s servic es, th ese parties are generally satisfied with N F I’s q uality of work. N everth eless, we regularly h eard someone stating th at private institutes c an work faster or more c h eaply , or are able to provide spec ialist ex pertise th e N F I does not h ave. Respondents mentioned th at introduc ing c ompetition means th at th e N F I would bec ome more flex ible and, for ex ample, would sooner adapt its produc t range to fit th e market demand, stimulated by th e servic es c atalogue or pric es th at private c ompanies offer. If one takes q uality to inc lude a broad, demand-targeted range of servic es, th en c ompetition will h ave a positive effec t on N F I’s q uality . Trust, partic ularly in th e q uality of work and in th e integrity of th e forensic sc ientists, c ontinues to be th e main reason wh y th e polic e and judic iary c h oose th e N F I. In our study , we h eard some remarks about wh eth er th e perc eption of th e q uality level alway s c orresponds with th e ac tual q uality . Sometimes th e N F I is given more c redit th an is justified, for ex ample, th at all N F I staff are sc reened and th at th e N F I is ac c redited in all fields; also, sometimes th e perc eption of private-sec tor institutes – for ex ample, th at th ey are not ac c redited – is inc orrec t.
If a c h oic e is made to furth er introduc e c ompetition in th e forensic sc ienc e sec tor, all providers must be able to present th emselves as reliable partners for polic e and th e judic iary . A c ompetitive market th erefore first of all c alls for an integral, multi-level sy stem of q uality assuranc e, for both N F I and oth er providers. Th at sy stem must ensure th at th e polic e and th e judic iary c an rely , in princ iple, on all providers th at meet th e q uality req uirements as reliable partners. Subseq uently , it is up to th e servic e providers to build up a good reputation and good relations with th eir c lients, or to provide a uniq ue produc t, suc h as a c ertain ty pe of analy sis meth od, a uniq ue c ombination of tec h niq ues, or a spec ial servic e. D uring th e transitional ph ase to a properly func tioning market, c lose attention sh ould be paid to th e N F I’s psy c h ologic al advantage due to its traditional position as a trusted, preferred supplier. N F I’s alleged brokerage role – wh ic h is not a formal role, but wh ic h ex ists in th e perc eption of several polic e and Public Prosec utor offic ials – c onflic ts with th e introduc tion of more c ompetition, bec ause oth er providers h ave less room to profile th emselves c ompetitively and to maintain direc t c ontac t with c lients.
A c ompetitive market furth ermore req uires a c ertain financ ing sy stem. If th e polic e and th e Public Prosec utor h ave to purc h ase forensic investigation servic es, with freedom to c h oose between different providers, th ey must h ave th e c orresponding budget available to th em. A n open q uestion is wh o sh ould manage th at budget: th e polic e or, more logic ally bec ause of th eir position as c aptain of th e investigation, th e Public Prosec utor? A nd to wh at level with in th e Public
Prosec utor’s O ffic e: at mac ro level by th e Board of Proc urators G eneral, th e national forensic prosec utor, th e forensic investigation c o-operatives (Forensische S amenw erking in de O p sp oring, F SO s), or th e forensic prosec utors in th e regional Public Prosec utor’s O ffic e? A noth er point for c onsideration is wh eth er th e polic e or th e judic iary are in a position to assess th e q uality of forensic servic e providers’ results. Th is req uires spec ialist knowledge wh ic h th e demand side of forensic servic es often does not h ave. F inally , some people also point out th e possibility th at in th e event of transferring budget to th e polic e or th e Public Prosec utor, th e polic e will c arry out more forensic ex aminations th emselves, a development already observed in th e U nited Kingdom.
Th is c alls for reflec tion on th e differenc es th at c urrently ex ist in q uality -assuranc e req uirements between (ex ternal) ex pert investigations and (internal) tec h nic al investigations.
D uring our researc h , we freq uently h eard th e view th at not all ty pes of forensic sc ienc e are suitable for a c ompetitive market; some ty pes req uire ex pensive eq uipment and are applied so infreq uently th at th ey will be unprofitable for multiple providers. Th e q uestion th en is, if we c h oose to introduc e more c ompetition, wh at proportion of th e overall forensic s budget must be transferred to th e polic e and th e Public Prosec utor, and wh ic h part will be used to fac ilitate c ertain ty pes of forensic -sc ienc e servic es by th e government itself. In th e latter c ase, th e government uses th e budget alloc ation instrument to steer th e market of forensic servic es. Th is enables th e
government, for ex ample, to ensure th at c ertain unprofitable but essential analy sis fac ilities are
maintained (not nec essarily with th e N F I, bec ause oth er spec ialist providers c ould also do th is). It also allows th e government to ensure th at money is invested in fundamental researc h , wh ic h in th e long term c an lead to new forensic tec h niq ues or applic ations, and not to rely on c ompanies’
willingness to invest in fundamental researc h . V ia c apac ity regulation and researc h promotion, th e government c an th erefore c ontinue to ex ert influenc e on th e forensic s market, to prevent th e market from being driven purely by ec onomic reasons. A c c ording to many , th ere are limits to th e ex tent to wh ic h forensic ex aminations c an be c arried out in a c ompetitive market.
Th e forensic s market fac es limitations in th e possibilities for introduc ing c ompetition, not only on th e supply side, but c ertainly also on th e demand side. Buy ing forensic servic es means th at th e proc urement party , th e c ustomer, is willing and able to c ompare produc ts and servic es and to assess wh at is a responsible c h oic e in ligh t of th e req uirements of c riminal justic e. Th e c ustomer must be able to assess forensic tec h niq ues and proc esses on th e basis of th eir q uality or pric e/performanc e ratio. Th is demands a lot from a polic e department or a Public Prosec utor’s O ffic e, not only in terms of ex pertise but also in terms of (additional) c apac ity . Regarding th e latter, th e judic iary voic es c onc erns th at c ompetition in forensic servic es will add administrative burdens to th e Public Prosec utor. A s regards ex pertise, c lients c ould be supported by an integrated sy stem of q uality standards, allowing th em to rely on suppliers with a 'trustmark' as being trustworth y . Th is does not mean th at th e q uality assessment problem h as been resolved, but simply th at it h as been transferred for assessment by oth ers. Th e providers c an do th is partly th emselves (e.g., th rough peer review), but government will also h ave to play a role. Sinc e th e assessment of forensic s providers and produc ts c annot be left entirely to individual polic e offic ers or public prosec utors, a government-provided q uality assessment c onc erning th ese providers and th eir produc ts must be available. In so doing, th e government enforc es q uality standards, so th at even wh en a c ompletely liberalised market is opted for, th is market c ontinues to be regulated.
However big or small th e liberalised part of th e forensic s market will be, if th ere are multiple play ers in th e field, fair c ompetition must be ensured. It is th e government’s task to enforc e th is.
Wh en introduc ing more c ompetition, th e government must make provisions to th is end. Several respondents in our researc h emph asised th at it c annot be easily assumed th at fair c ompetition will be ac h ieved just by assigning enforc ement to a supervisory body , for ex ample, th e
N eth erlands C ompetition A uth ority (Nederlandse M ededingsautoriteit, N M a). Important
c onsiderations for fair c ompetition, espec ially in a transitional ph ase, are stimulating c ompetition by providing suffic ient information to th e demand side (wh ic h initially c ould c ontinue to regard th e N F I as preferred supplier), preventing c ross-subsidisation of th e N F I in a partly liberalised market (i.e., th at c ost of produc ts in th e liberalised market segment are c h arged to produc ts in th e monopolised segment), and being alert to indirec t forms of power wh en th e N F I as dominant play er, c onsc iously or unc onsc iously , determines th e agenda of, for ex ample, detec tive training c ourses or for setting ex pert req uirements for th e national ex pert registry (N RG D ). In addition, th e implic ations need to be researc h ed of th e pending ‘M arket and G overnment’ Bill for th e forensic field and N F I’s position with in it.
C ompetition in forensic servic es c annot be easily be c ompared with c ompetition in, for ex ample, h ealth c are, public transport, postal or energy servic es, wh ere large numbers of c onsumers are th e c ustomers, as opposed to c rime forensic s wh ere a small number of public auth orities are th e main c ustomers. Th e aforementioned sec tors are muc h larger and more ex tensive th an forensic sc ienc e. F or c omparative purposes, it is more appropriate to look at developments in th e sec tor of public sec urity , wh ic h , in fac t, inc ludes forensic servic es. Th e tec h nology -related forensic sc ienc e for c riminal justic e is a small part of th e forensic s market, wh ic h h as a muc h wider range of private ac tors as well, both as c lients and providers.
Inc reasingly , we see links between private and public ac tors and proc esses. Ex perienc es in th e field of th e public -private sec urity market indic ate th at c ompetition in th e sec urity market is possible. Th e private forensic s market th at h as evolved in prac tic e c an be seen as part of a broader sh ift of prevention, sec urity , and investigation tasks from th e public to th e private sec tor.
Th ese developments sh ow th at private and public ac tivities c an sometimes bec ome intertwined in undesirable way s (grey p olicing). Transparenc y and state supervision are th erefore important key words for safeguarding public interests if forensic sc ienc e for c riminal justic e moves towards th e broader public -private market for forensic s and sec urity .
Wh at oth er effec ts c an be ex pec ted depends to an important degree on h ow c ompetition will be introduc ed (to a greater or lesser ex tent, and at wh at speed), and h ow th e proc ess of introduc ing c ompetition is supervised or governed. O f c ourse, it is antic ipated th at th e N F I will
lose market sh are to oth er providers, but h ow muc h is diffic ult to assess. Th ere may be oth er play ers wh o will enter th e market besides th e c urrent alternative providers; h owever, sinc e th e N eth erlands is a small c ountry we do not ex pec t a large number of substantial providers to enter th e sc ene. Looking at th e situation in th e U nited Kingdom, we migh t th ink of some two large(r) play ers and a few more small, spec ialised providers. In th is c onnec tion, it c an be antic ipated th at c ompetition will lead to a more varied range of forensic s produc ts (supply -driven c reation of new demand) and th at th e supply will follow th e demands of c lients faster or more spec ific ally . A s for speed, it is believed th at c ompetition will lead to q uic ker proc esses and th erefore sh orter waiting periods (wh ic h c an already be observed c urrently ). Th ere are different views on th e impac t on applic ation-oriented researc h and development. fall dupe Some fear an unfavourable effec t, oth ers ex pec t th at researc h and development will not deteriorate and may even improve in a c ompetitive market. However, th ere is a c onsensus th at fundamental researc h needs separate attention, for ex ample, th rough separate public funding.
In general terms, we c an c onc lude th at th e field for th e most part is open to (some kind of) c ompetition in tec h nology -related forensic sc ienc e, as long as th e q uality of providers is suffic iently guaranteed th rough an integral q uality c ontrol sy stem and c ompetition is c arefully introduc ed. However, opinions are divided on th e ex tent to wh ic h c ompetition c an or sh ould be establish ed, and with wh at speed. Th ere are more restraints with regard to c ompetition on th e demand side th an on th e supply side, wh ere both N F I and oth er providers are in favour of more far-reac h ing c ompetition.
F urth er polic y debate will h ave to take plac e on th ese issues. Th e following th ree sc enarios, with different degrees of c ompetition, are provided to support th at debate.
Three scenarios
A c omplete monopoly is no longer realistic , and neith er is a c ompletely free market. Instead, we outline sc enarios based on two variables: th e ex tent to wh ic h th e market is liberalised (inc luding transfer of th e forensic s budget from N F I to th e Public Prosec utor’s O ffic e) for various produc t ty pes (e.g., only D N A investigation, or ac ross th e wh ole forensic -sc ienc e spec trum), and th e degree of government c ontrol to supervise th e market. We h ave elaborated th ree sc enarios wh ere we briefly mention th e most obvious advantages and disadvantages and c onsiderations.
"N F I+ " (no liberalised market, a lot of government control)
N o furth er c ompetition is introduc ed for forensic sc ienc e, but th e present situation is c ontinued, with small suppliers and a dominant N F I operating on th e market. Th e N F I retains its c urrent status and bulk funding, but in order to guarantee q uality assuranc e, th e N F I will need to c omply with furth er legal req uirements. In order to fac ilitate c ounter-appraisal, for th e most important produc t groups th e law will designate a laboratory as an auth orised provider, similar to th e situation in D N A forensic s wh ere th e F orensic Laboratory for D N A Researc h (F LD O ) was designated as an approved laboratory . Th ese providers rec eive struc tural public funding for th eir c ounter-appraisal tasks. A ll providers h ave to c omply with legal req uirements, inc luding
mandatory ac c reditation for th e relevant produc t group and forensic sc ientists must ac q uire c ertific ation based on ex ternal review. In addition to th e N F I and th e designated spec ialist
“c ounter-servic e” providers, oth er play ers are free to join th e c riminal forensic s market for primary ex aminations or c ounter-appraisals, provided th ey c omply with all legal req uirements, inc luding ac c reditation and c ertific ation.
Th e advantages of th is sc enario are c ontinuity and stability with muc h sc ope for public c ontrol, but it h as disadvantages in th at it does not provide market inc entives for effic ienc y and innovation or against inc reasing c ase bac klogs, and bec ause of its financ ial struc ture it offers no opportunity for fair c ompetition from alternative servic e providers. Spec ial c onsiderations for th is sc enario are funding of c ounter-appraisal labs and q uality c ontrol by ex ternal parties.
"D N A -Tox -IT" (p artially liberalised market, relatively little government control)
Th e market for tec h nology -related forensic sc ienc e will be partially opened up for th e th ree most important produc t groups wh ere th ere is suffic ient supply and demand: D N A , tox ic ology , and digital forensic s. Th e budget for th ese ty pes of forensic investigations will be transferred from th e N F I to th e Public Prosec utor’s O ffic e wh ic h , after c onsultation with in th e F SO s, will dec ide from wh ic h (D utc h or foreign) provider th ey will buy D N A , tox ic ologic al, or digital forensic servic es.
Providers must meet minimum legal req uirements (suc h as ac c reditation for D N A and tox ic ologic al investigations), but q uality is furth er guaranteed bec ause providers c ompete on q uality . F or th e rest of th e req uired produc t groups, th e N F I remains th e preferred supplier, rec eiving bulk funding and agreeing upon c apac ity levels in Servic e Level A greements. O th er suppliers are free to offer th eir servic es in oth er areas, but th e judic iary h as to pay for th ese separately , so th is will only h appen sporadic ally . Th e c urrent judic ial budget for forensic researc h and development is transferred to th e N eth erlands O rganisation for Sc ientific Researc h (N WO ), wh ic h c reates a spec ific programme to fund researc h by c onsortia of forensic laboratories and ac ademic researc h ers.
Th is sc enario provides c ompetition wh ere possible and c ontinuity wh ere nec essary ; it also gives a c ompetitive impetus for (sc ientific ) researc h . However, th ere are downsides in th at th e c osts for c ontinuation of non-liberalised produc t groups are relatively h igh ; th e administrative burdens for c lients will inc rease; th e N F I will be prevented from c ompeting on th e private market in D N A , tox ic ologic al, and digital researc h ; and antitrust enforc ement for th is “h alf-market” is partic ularly c omplex . Important c onsiderations are getting c ompetition going in th e initial ph ase, th e definition of servic e level agreements for low-freq uenc y forensic -produc t ty pes, and q uality assuranc e in th e liberalised market segment.
"D utc h F orensic A uth ority " (fully liberalised market, relatively much government control) Th e forensic -sc ienc e market is gradually liberalised, starting with D N A and digital forensic s, followed by oth er produc t groups. A fter ten y ears th e wh ole market must be liberalised. It is antic ipated th at besides th e N F I, anoth er large (international) full-servic e laboratory as well as several small, spec ialist providers will be operational. A ll providers must c omply with general legal req uirements. Th e N F I will be privatised, so th at it c an operate on th e entire market for forensic sc ienc e, inc luding th e private market, in c ompetition with oth er providers; neverth eless, th e State will remain its sole sh areh older. Th e forensic s budget will – as gradually as th e produc t groups are liberalised – be transferred from N F I to th e Public Prosec utor’s O ffic e, wh ic h will invest in c apac ity and ex pertise so th at th ey c an make th e righ t c h oic es wh en buy ing forensic servic es. To ensure th at th e dy namic market of supply and demand retains suffic ient h igh q uality and
innovation, a D utc h F orensic A uth ority will be establish ed with th ree responsibilities: to supervise c omplianc e with legal req uirements, to ac t as c onsultant and ex pertise c entre in th e field of forensic investigations, and to foster researc h and development.
Th is sc enario offers benefits suc h as dy namism, innovation opportunities th rough c ompetitive market forc es, and being c onnec ted to market developments in th e broader public -private sec urity sec tor, inc reasing th e N F I’s opportunities to enter th e broader (European) market. Th e disadvantages are an unc ertain transition situation for providers, th at it req uires investments from th e Public Prosec utor’s O ffic e, and th at less direc t public c ontrol is possible. Important
c onsiderations are getting th e c ompetition going in th e initial ph ase and effec tive supervision of fair c ompetition.
F inal considerations
D isc ussions and polic y making c onc erning c ompetition in tec h nology -related forensic sc ienc e are at an early stage. Th ere h ave been many developments in a relatively sh ort period of time th at h ave affec ted th e field of forensic investigations, both in th e N eth erlands and abroad. Th e N eth erlands is in a spec ial position vis-à -vis c ountries suc h as th e U nited Kingdom and th e U nited States, bec ause th e N eth erlands h as a muc h smaller market for c riminal forensic s. In th is respec t, it is often said th at th e N eth erlands is too small for a c riminal forensic s market. However, th is does not mean th at th ere is no room for c ompetition: th ere is a large market for D utc h forensic servic e providers both in geograph ic al terms (Europe) as well as in sec toral terms (th e private sec urity sec tor). In th e c ase of c ross-border provision of servic es th ere are, h owever, still several legal and language barriers (for ex ample, reports) to take.
To c onc lude, we provide some c onsiderations to put into perspec tive th e furth er disc ussion and polic y -making regarding th e future of forensic sc ienc e. C riminal tec h nology -related forensic sc ienc e is gaining importanc e, but it is only a small part of c riminal justic e. F inanc ially , forensic sc ienc e involves only a frac tion of th e justic e budget, and in many c riminal c ases, forensic evidenc e play s just a sec ondary role. M oreover, some forensic sc ienc e takes plac e outside th e
c ontex t of laboratories th at h as been th e foc us of th is study , ranging from c rime-sc ene investigations th rough ex aminations c arried out internally by th e polic e to ex pert testimony in c ourt on th e basis of forensic evidenc e from available reports. It is useful to view th e q uestion on c ompetition in th e field of c riminal forensic sc ienc e in th is perspec tive.
Th is disc ussion and polic y -making regarding c ompetition in forensic sc ienc e are also part of muc h broader disc ussions th at are presently th e foc us of attention. Th ere is th e q uestion of sc ientific ex pertise and th e role ex perts and sc ientific knowledge play in polic y dec ision-making (a disc ussion wh ic h , for ex ample, oc c urs in relation to c limate c h ange and vac c ination programmes, but also in c riminal law). A noth er broader issue is th e muc h -disc ussed q uestion of introduc ing c ompetition in public sec tors. Th e disc ussions regarding th e future of forensic sc ienc e c ould be enric h ed if insigh ts into th ese broader disc ussions are taken into c onsideration.
In c onc lusion, th e most important c onsideration is th at, in our view, it makes sense to broaden th e disc ussion by inc orporating th e broader sec urity sec tor, wh ere a dy namic public -private market is taking sh ape. Bec ause of th e many c ross-sec tor c onnec tions wh ic h are now developing between polic e, private investigators, private sec urity agenc ies, private forensic servic e providers, insuranc e c ompanies, and oth er c ompanies, th e market for c riminal forensic s c annot be isolated from th e broader market in th e sec urity sec tor. Th is c alls for a broad, integrated approac h to th e governanc e of sec urity .
So th ere is more th an enough material for disc ussion. F ortunately , during our study we h ave observed a great willingness to engage in disc ussion: th e subjec t interests all th e ac tors involved, and in our field ex ploration we found a broadly sh ared sense of urgenc y to make progress in th e polic y proc ess around introduc ing c ompetition in forensic sc ienc e.
