The State can’t pretend it wasn’t warned.
That much is clear in letters from the country’s top forensic scientist to the Department of Justice.
Dr Sheila Willis warns of a possible legal and political nightmare if a court case collapses because of failings in forensic evidence — failings directly stemming from working in poor facilities.
The prospect is “unthinkable”, she warns, saying that it would result in “very large expense and untold reputational damage” for the criminal justice system.
Her four-page letter of October 16, 2015, was the culmination of a series of correspondence to the department in which her exasperation and frustration is clear to anyone who reads them.
In addition to the contamination risk, she highlights consistent staffing problems; worrying backlogs of criminal case loads; lack of basic storage space; smells that are so bad that they made a pregnant woman sick; and that the place is a fire hazard.
The letters from the director general of Forensic Science Ireland (FSI) to Noel Waters, secretary general of the Department of Justice ,were made available under the Freedom of Information Act.
Parts of the October 16 letter — at least six or seven sentences — have been redacted by the department.
FSI has long been viewed as the Cinderella of the criminal justice system, run by scientists who, by their nature, are not inclined to publicly bang the drum or take to the streets in protest.
And it’s not that their work is not important. Anything but.
The agency tests samples from crime scenes to gather forensic evidence linking an accused to the crime and provides expert testimony in criminal trials.
This work supports, and sometimes single-handedly secures, convictions.
It is work that necessitates modern facilities, particularly in the handling and analysis of DNA samples.
If a senior counsel could identify a weakness in the testing of forensic evidence it could well sow that crucial “reasonable doubt” in the mind of a jury — or indeed convince a judge to throw out the evidence altogether.
The letter of October 16 was written after the Government published the Capital Investment Plan 2016-2021 last September.
After more than 10 years of promises of building a modern facility, this plan renewed an abandoned 2009 project for a new laboratory.
But the capital plan said that funding for this would not be available until 2019.
If that actually comes to pass and construction starts straight away, it will take three years to build and fit the high-tech facility.
This may have been the straw that broke the camel’s back for Dr Willis, the long-suffering head of what was formerly known as Forensic Science Laboratory.
“I wish to convey to you again,” she writes to Mr Waters “my extreme concern at the announcement in ‘Building on Recovery: Infrastructure and Capital Investment 2016-2021’ that construction of a purpose built forensic science laboratory at Backweston, Co Kildare, will not commence until 2019 at the earliest.” She points out that the agency has been in the Garda Technical Bureau building at Garda Headquarters since 1979.
This is a “1970s style office block”, not suited for a modern laboratory, which subsequent modifications have not much improved.
She said that for “more than 10 years” she has advised successive justice ministers of this.
“Numerous promises have been made and expressions of sympathy and goodwill received with no tangible result.” She said staff at the laboratory had spent considerable time with the OPW and the department on various proposals, which were all abandoned, including the most recent one in 2009 for state-of-the-art facilities in Backweston.
She said she has recently been informed by the OPW that they consider their office “to be a fire hazard”.
She said they were using a basement for “secure storage of the case exhibits” and that the foyer beside the lift acted as a “reception area for all cases”.
She also writes: “We have ongoing problems with strong odours emanating from the piping system. It takes months to get them fixed. Two weeks ago, an odour was so obnoxious that one of the pregnant staff had a bout of vomiting.” She said she was “genuinely worried” to see the date of 2019 in the capital plan.
She said it was their expectation that the project, which she said was “shovel ready”, would have started in early 2016 and could have been completed by 2018.
“Now it appears that the purpose-built facility will not be available for occupation until 2022 at the earliest.” She told Mr Waters that with improvements in DNA technology there was “significant associated risk of inadvertent contamination”.
This included the possible transfer of DNA from a scientist to an item from a crime scene, or DNA from a victim to a suspect or vice versa, or DNA from an item in one case may be transferred to an item in another case.
She said the “current unsuitable facilities dictate that more and more staff time is devoted to check and double checks to ensure that contamination is caught and that we can stand over the results we produce”.
Dr Willis said DNA evidence played a role in the investigation of a wide variety of criminal offences, from the most serious (murders, sexual offences) to burglaries and other crimes.
She said DNA evidence provided by FSI scientists had played “a key role in many high-profile criminal trials”.
She said the “credibility offered by FSI scientists in court” required that the laboratory had the “most rigorous anti-contamination” procedures.
In light of all of this, Dr Willis said: “It is my duty to formally advise you of the following consequences”.
She said the “risk of contamination” will take more and more staff to manage “because the possibility of it happening in a case is unthinkable and would result in very large expense and untold reputational damage” to the FSI and the Irish criminal justice system.
“It is my greatest fear and main concern,” she said.
In a further bombshell, she said that the new DNA database, promised since 2007 and eventually launched last November, “will be ineffective” because of the “limited capacity to process sufficient samples”.
Dr Willis added: “This is ironic in light of the minister’s initiative to target burglaries, which are shown to be the most effective use of DNA as a tool in other jurisdictions.” She said she did not believe the situation was “tenable” for the next seven years and urged Mr Waters and the minister to reconsider the plan.
A note on the letter from Mr Waters to the minister stated that Dr Willis had asked that this “be brought to your attention”.
In his response to Dr Willis, Mr Waters said the department was “seized of the difficulties” she was facing.
He recognised the new facility was “vital”, particularly with the new DNA database.
“We have continuously and strongly argued for the provision without delay of such a facility,” he said, and that if an opportunity arises to bring forward the start date “it will be taken”.
One would have thought that given the barrage of justice scandals and crises that plagued the outgoing administration, the department, the minister and the wider government would do everything to avert another one.
They cannot say they didn’t know.