Four years ago we wrote about news reports of a police investigation into a drug testing lab that had carried out tests for the Family Court :

The issue was that some of the tests carried out by the lab in question seemed to have been manipulated, which threw into doubt the reliability of all the results carried out by that lab. The extent of the problem wasn’t known, but the police were evidently taking it seriously – as well as Family Court matters the lab was used in criminal cases, so this had potential to affect the safety of lots of criminal convictions too.

Six months later, in November 2017, a scheme was set up to process applications from those who thought their family court drug test results might have been compromised. We wrote about that here :

Last week saw publication of a judgment by the President of the Family Division which gives something of an update on where things have got to, at least on the criminal front.

In Greater Manchester Police v Zuniga & Ors [2021] EWHC 1572 the President was asked to authorise the retention of Family Court information in order that it could be preserved for potential use in criminal cases or appeals. That authorisation was granted. The application was necessary because information produced for the Family Court, including test results is subject to restrictions on disclosure and use in order to protect the privacy of the court process, and the Family Court is in control of decisions about relaxing those restrictions. This judgment dealt with the whole class of documents rather than individual cases (We’ll explain a bit more about the legal side of this later – we’ve simplified here).

The names mentioned in the title of the case are the names of the seven suspects under investigation in relation to the manipulation of the tests). It’s important to remember that nobody has been convicted in respect of these issues, but we do get some more information from the judgment about what the concerns are about how the labs were being run and what is said to have gone wrong. The judgment tells us a bit more about the alleged purpose and scale of the manipulation than we knew before :

The background to the case is an investigation begun in 2017 and led by GMP [Greater Manchester Police] into data manipulation by the seven Respondents, who are the suspects in the case, at a forensic laboratory which, via two different companies consecutively operating at the laboratory, provided services to police forces for the purposes of identifying drug use. The forensics analysed hair, blood, and urine for quantities of illegal substances, and the results provided, some of which were falsified, were used in in criminal, family, coronial or employment cases.

The investigation has uncovered 27,000 reports which appear to have been affected, and therefore the potential injustices which have occurred as a result of the data manipulation are many and serious. It is worth recording that an investigation of this scale, complexity, and irregularity is difficult and skilled work, which necessarily takes time.

The alleged activity occurred between 2011 and 2017 at the same Manchester testing centre, the Hexagon Tower. Two companies were primarily involved, and the Defendants span both: Trimega Laboratories (“TL”) operated at the Hexagon Tower from 2009, and continued under that name (after the Ingemino Group bought TL in 2012) until they ceased trading in April 2014 and the company was liquidated by KPMG; Randox Testing Services (“RTS”), bought the equipment and methodology from TL upon its liquidation and operated at the Hexagon Tower from 2014 onwards.

The Respondents are said to have engaged in data manipulation practices for the purposes of ensuring rapid accreditation by the regulator, UKAS, by which the company could provide its forensics services to the police forces, thereby gaining commercial advantage over competitors. The object was therefore the raise the value of the company by gaining a larger market share.

This data manipulation dates back almost a decade and takes a variety of forms, including copying results and quality assurance data from one sample and pasting it into another, as well as manipulating quality controls and suitability tests, and falsifying identification of drugs and validation data.

(paras 1-5)

In our first report on this scandal, we referred to a case called is Bristol City Council v A Mother & Ors [2012] EWHC 2548 (Fam) (25 September 2012), which had been mentioned in some of the newspaper coverage at the time. We said :

It is clear from that case that in 2012 something went very wrong with a hair strand test in that particular case, and that it could well have led to children being removed from their mother had the mistake not been rooted out and the sample re-tested by a second company. It is impossible to say whether the error there was in any way connected with the matters under criminal investigation, or whether it was a one off. 

The recent judgment now shows that this case was potentially linked to the manipulation :

GMP’s investigation also involves the cover up of data anomalies relating in particular to two family court cases. These cases are “the Welch case” and Bristol City Council v A & A and Others (2012): in Welch a woman contested the results from TL of hair testing for drugs, and the another forensic provider was employed to test her hair; in Bristol City Council, TL’s drugs testing was challenged by a woman whose children had been removed from her care on the basis of drugs use. In both cases TL’s tests were contradicted by newly instructed forensics providers, and TL acted defensively, possibly for the purposes of competition with the alternative forensic providers used in those cases. Bayliss admitted in police interview to involvement in a cover-up during these two cases. The anomalies in these cases were discovered at the same time as the sale of TL to Ingemino. If disclosed, the fact of the anomalies would have dramatically reduced the value of the sale. There is also investigation into what the senior management of TL knew of these cases at the time.

It’s not clear whether the reference to two family court cases means that this is the extent of the problem or if these are simply two more prominent cases – which were challenged and defended at the time. There may well be other Family Court cases that weren’t challenged and therefore weren’t defended, but which have subsequently been challenged through the process set up in November 2017 – but this judgment doesn’t go into that. If there have been challenges through that processes we’ve not seen any published judgment relating to them. This is something we might make an FOI request about to see if we can see how many people have tried to use this process since its launch, how many cases have been processed and whether any have resulted in a rehearing.

What did the President have to decide?

In fact, the police had already lawfully got hold of the materials they wanted but the Police & Criminal Evidence Act 1984 (PACE) limits how long they can keep biometric data for, AND says it can only keep it for the purposes of criminal law enforcement – here this would mean they could not keep much of the data after making a charging decision. The Police wanted permission to use and hold the information without those restrictions even if the material was not used.

The Family Court Rules restrict communication of information so it was through these rules that permission was sought, to cover the retention of materials for longer and broader purposes than the criminal law would allow.

The present applications, though, seek orders firstly to allow GMP to retain documents, samples and digital materials produced for use in connection with cases heard and determined in the Family jurisdiction, and secondly to allow GMP to use and analyse those materials for tracing witnesses and securing evidence. This court previously directed that an application should be made to the Family Division of the High Court to resolve the issue; these applications are made in adherence with those directions.

pa 13

The reason that the police wanted to be able to go beyond what PACE would allow is this :

It is not hard to imagine the circumstances where this data would be sought by an individual concerned, given the size of the affected data, and the nature of the proceedings in which it was involved. There are likely to be criminal, family, coronial and employment cases, previously decided, which parties may wish to revisit on the basis of faulty data. The importance of this is hard to overstate. It concerns miscarriages of justice which may have occurred in reliance on what are now known to be erroneous drugs testing results.

There is no alternative custodian of the material given that TL was liquidated, and so the material would otherwise be destroyed. Given the number of people affected who may require these materials at some point, it is important that it is retained. The alternative would allow individuals concerned to access the material produced for court, but not the background material which demonstrates the data manipulation. In my judgment there is no viable alternative to allowing the data to be held by GMP which would also allow the individuals concerned access to the material needed to demonstrate a miscarriage of justice.

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The court was asked to make a decision on the basis of the whole ‘class’ of information rather than case by case – it would have been a huge task to go to each individual person concerned. The materials were the actual records originating in the lab rather than the final court reports.

The President of the Family Division agreed to the request, and has ordered that the matter is reviewed every 12 months by him (or his successor) and that the identity of the individuals must not be revealed in any criminal trials without their consent.

Feature pic : laboratory stuff by iT@c on Flickr – thanks!

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