Orchid Cellmark Ltd Trading as Keith Borer Consultants*

“On Monday 21 September 2015 Keith Borer Consultants (KBC) became part of Orchid Cellmark Ltd.” ^[1]

And so one of the main providers of DNA analysis and opinion to the police, and hence the prosecution, now own one of the main providers of the same service to the defence.   A new and development in the increasingly strange ‘market’ for forensic services.

Cellmark do state on their website that,

“We maintain a clear separation from the prosecution side of Cellmark’s business to ensure client confidentiality, scientific independence and prevent any potential conflict of interest.” 1

Yet at the same time,

“KBC continues to provide the same high quality, independent forensic advice while benefiting from access to Cellmark’s comprehensive range of analytical services.”¹

Let us first separate the concepts of independence and impartiality.  Independence is a lack of reliance on anything or anyone else.  Given the new relationship between them, KBC is clearly not independent of Cellmark as Cellmark now own and are therefore at least in financial control of KBC.  KBC’s activities affect Cellmark and vice versa. That is a fact and not a criticism. 

The question may occur to a defence solicitor how KBC’s scientists can access Cellmark’s services while maintaining impartiality, given the inevitable personal links that must ensue.  That is not necessarily an issue when the technologies are perhaps novel or expensive and therefore available only to larger companies.  We have contracted Cellmark to perform testing for us when requested by clients, but we are not owned by Cellmark, or asking for work in the same cases in which they are engaged.  Will Cellmark and KBC’s separation preclude work being done by the same firm for prosecution and defence on the same case? The solicitor may also question whether some fundamental challenges are now simply not available to KBC scientists (if indeed they made them previously).  Will KBC staff be free to mount all appropriate challenges to Cellmark?

Some recent examples illustrate the difficulties:

1. DNA with no statistics

In recent cases, Cellmark have relied on the judgement in the Appeal case of R v  Dlugosz[2]  to offer opinions on the strength of DNA evidence without any statistic, but based wholly on the ‘experience’ of the expert.  We have successfully challenged such an approach, but of course we are not involved in all of the cases where that type of opinion has been offered. If KBC was to be retained by the defence in such cases now, challenging this evidence would appear to require KBC to contradict its own parent company’s policy.

1. DNA with statistics calculated using LikeLTD software

This software is one of a number of such programmes that claim to be able to calculate statistics from complex DNA profiles that are otherwise uninterpretable.   Cellmark have not only adopted that software, but added to it.  Again, we have challenged the use of such programmes to the extent that the prosecution have actually withdrawn the evidence in some cases. Again, if KBC was to be retained by the defence in such cases now, they face the choice of contradicting their own parent company, or denying that valid defence questions remain unanswered in relation to this evidence.

1. DNA transfer

We published a wide-ranging review of the research on DNA transfer in 2013.  In most instances, it is simply not possible to scientifically evaluate the possible mechanisms of transfer and the probabilities associated with each.  Cellmark experts still produce reports which claim to be able to do so. If the defence retained KBC in such cases now, would they accede to the claims of their parent company’s scientists, or actually assist the defence by explaining the valid criticisms of claims about DNA transfer?

These have all been fundamental and successful challenges to the DNA evidence provided by Cellmark.  Of course, if KBC’s opinion is already in agreement with that of Cellmark for these issues then there is no great change... nor challenge.  If any of these evidence types are found to be inadmissible, however, the consequent negative outcome on the effectiveness and usefulness of Cellmark’s evidence in a considerable number of cases will surely have an effect on their business; not least on how cost-effective the police consider the service to be.

The seriousness of the dependence of any firm on its clients is clearly illustrated by the recent redundancies of scientific staff at LGC Forensics, as a consequence of the reduction in police contracting, and of course the complete closure of the Forensic Science Service for the same (or similar) reason.  Cellmark are dependent on police contracts and hence dependent on those for financial survival.

Perhaps there are more mundane issues:

It is now fashionable for the prosecution forensic provider to charge the defence, and thereby Legal Aid, for access to casefiles, copies, and time.  The more that KBC request from Cellmark then, the more Legal Aid is effectively supporting both arms of the same company.

If Cellmark propose to give cheaper/easier access to their files for KBC, it still does not overcome the problem that Legal Aid is effectively paying twice for effectively one company to carry out and check the work of its own parent.

We do not address here the subtle influences that bias opinions even in scientific work.  What the effect of those subtle influences will be is not known, but it is something to consider now that there is not the clear separation that previously existed before one company owned the other.

Nobody has any problem with companies merging and making decisions that suit them financially and otherwise; all of us understand financial pressures and the attraction of joining a stronger partner in business. Fundamentally, however, is there something troubling about a company making profit from both prosecution and defence, especially in the same case(s)?  Whether this has been considered by any body or individual outside KBC and Cellmark is not known.