By Michael O’Farrell
Investigations Editor
THE national forensics laboratory is unable to test thousands of drugs possession cases on time for prosecution, the Irish Mail on Sunday can reveal.
The backlog means criminals ‘have a good chance that their crimes will never be prosecuted,’ said Fianna Fáil justice spokesperson Jim O’Callaghan.
Internal files from Forensic Science Ireland also show that testing backlogs were quietly reduced in December 2016 – when the lab returned 3,000 untested drugs possession cases to gardaÃ.
According to lab records obtained by the MoS under the FoI Act, these 3,000 culled cases missed the deadline for Garda submission to the District Court for prosecution.
Although the deadline is 12 months, gardaà are supposed to operate under a best practice timeframe of six months.
The removal of 3,000 unprosecuted cases from the backlog was not made public by the annual reports of FSI, the Garda SÃochána, the Courts Service or through CSO crime figures.
The cull – included in briefing notes to Minister Charlie Flanagan – was also kept from the Dáil when he answered Parliamentary Questions about the backlogs in July 2017 (see panel).
The removal of cases temporarily reduced the backlog from 4,700 to 1,700 at the end of 2016.
But it immediately began to grow again, rising to 3,673 by the beginning of this year. The lab has repeatedly told Garda authorities and the minister it does not have the resources or capacity to reduce the spiralling backlogs.
‘FSI capacity (people, infrastructure and equipment) is insufficient for demand,’ the 2018 Service Level Agreement with the Garda reads.
The lab adds that it ‘does not have the capacity at present’ to process the backlog of Section 3 drugs possession cases.
The lab’s 2017 agreement states: ‘For Section 3 drug cases that are more than one year in the laboratory and which have not been requested, it will be assumed that they are no longer required and will be returned.’
The FSI’s capacity took a further hit with the Government’s diversion of €10m – earmarked for a new FSI laboratory – to shore up cost overruns at the National Children’s Hospital.
FSI lost 15 employees between 2009 and 2015, who were not replaced. At the same time, the lab was hit by the introduction of the new DNA database in 2014.
‘Staff were taken, over time, from the drugs section and trained in DNA,’ internal files read.
‘This decision was taken in light of the drugs area carrying small backlogs at that time. However, backlogs built up very quickly.’
To cope, FSI adopted a strategy of ‘concentrating on the more serious Section 15 (dealing) and Section 17 (cannabis cultivation) cases and allowing the Section 3 (personal possession) cases accumulate,’ the files continue.
Mr O’Callaghan said today’s revelations raise ‘a number of serious issues’.
‘If 3,000 Section 3 cases were never prosecuted, it appears that people found in possession of drugs probably will not face prosecution,’ he said. ‘This undermines the law that operates against possessing drugs.’
A Garda spokesman said: ‘The backlog is an FSI issue. An Garda SÃochána has been aware of the FSI backlog and… has been assisting FSI with measures to try and reduce this backlog.
‘An Garda SÃochána seeks to prosecute all drugs possession cases within the relevant laws. Garda district officers can make a determination on cases involving a small amount of specific drugs without recourse to FSI analysis.’
Download
Why did minister fail to mention dumped cases?
IN JULY 2017, Fianna Fáil justice spokesperson, Jim O’Callaghan, tabled a parliamentary question about testing backlogs at Forensic Science Ireland.
Despite being given a four-page brief by FSI confirming that 3,000 drugs possession cases older than a year had been eliminated from the lab’s system in 2016, Justice Minister Charlie Flanagan’s response made no mention of the cull.
Instead, he told the Dáil: ‘There has not been any impact on the Garda’s efforts to enforce the law and there have not been any prosecutions lost on foot of this backlog.’
Fianna Fáil justice spokesperson Jim O’Callaghan told the MoS the minister ‘should have given a much fuller answer’ to his Dáil question, adding that the failure to resource the FSI means there is a ‘good chance crimes will not be prosecuted’.
We asked the Justice Department the following questions about the matter;
1 – Why was the scrapping of 3,000 Section 3 cases not referred to in any public manner?
2 – Please address the matter of likely prosecutions being lost/abandoned because many Section 3 tests were not being done – and are still not being done – before the 12 month deadline to get them into court.
3 – In the context of the above question did Minister Flanagan mislead the Dail by stating that no prosecutions had been lost?
4 – FSI has just had funding cut as a result of overruns at the National Children’s Hospital. What is the Minister/Department doing to ensure that backlogs will no longer result in cases being abandoned?
5 – Please comment on the above in the context of recent revelations that gardai failed to prosecute thousands of crimes committed by juveniles.
In response to the above questions the Department of Justice issued the following reply;
“Forensic Science Ireland has had a Service Level Agreement in place for over 10 years with An Garda Siochana which sets out that the FSI will be notified that samples are required for a specified court date, those samples are then prioritized for analysis in keeping with international practice and provided in time for that date.  As set out in detail below, not all prosecutions in such cases are dependent on FSI analysis and the process of returning samples is designed to take account of that rather than wasting resources.
The following information may help to explain the processes in place to ensure that samples are provided in time to aid any potential prosecutions.
Background
FSI is an associated office of the Dept. of Justice and Equality and is operationally independent of the Minister. It provides comprehensive scientific analysis, independent expert opinion, advice and training to support the Irish Criminal Justice system. FSI analyses submissions from a wide variety of cases including murders, significant drug seizures, aggravated assaults, suspected explosive devices and sexual assaults, and represents findings as expert witnesses in court.
As with Forensic Institutes in other jurisdictions, case submissions have increased in FSI over several years. During 2018 alone, case submissions increased by close to 10% overall; including increases of 15% for DNA cases and more than 9% for complex drug cases.
Requirements of SLA
To manage this demand, FSI and An Garda SÃochána have established an agreed prioritisation system for forensic work and this is represented in a comprehensive Service Level Agreement. This calls on FSI to focus on the most important cases and prioritise resources accordingly. This practice is common across forensic organisations in Europe. Within this agreement the need for prioritising analysis in more serious drug offenses, including section 15 (possession with intent to supply) and section 17 (cultivation) cases over section 3 (simple possession) cases, is clearly called out.
Operation of SLA in practice
The issues in question relate to relatively minor ‘section 3’ drugs possession offences. This may for instance relate to confirming that the substance which an individual has been found in possession of is marijuana. While more serious offences are prioritised, it is not the case that section 3 cases are ignored. Where a court date is set for a section 3 case which has been received by FSI, the Service Level Agreement provides that An Garda SÃochána contact FSI to inform them of the court date. FSI then prioritise the sample for analysis in time for that date. In 2018, over 2,000 section 3 cases were supported in this way. This escalation or ‘request’ process allows for FSI support for potential prosecutions following the notification of a court date.
In practice, many section 3 cases never reach the point where a court requires the result of an analysis of the relevant sample. This may be because the individual involved has already made a guilty plea or Presumptive Drugs Testing (PDT) may have been used. In the context of competing demands, it would not be efficient for FSI to devote resources to analysing samples which will never be required in court. The system which is in place avoids this and instead concentrates on those cases where the samples need to be analysed to assist in potential convictions.
If a section 3 case has been in FSI’s possession for 12 months and there has been no contact with regard to a potential court date, it is returned to An Garda SÃochána on the assumption it is no longer required. It is not the case however that such a sample would simply be discarded or ‘scrapped’. If such a case is subsequently required, it is resubmitted and prioritised by FSI.
PQ response
The above information is provided in order to provide greater clarity on the operation of the system operated under the SLA between FSI and An Garda SÃochána. What is in place is a clear system, governed by a Service Level Agreement, to ensure section 3 cases are prioritised in such a way as to ensure best use is made of the resources available. This system is designed to ensure that support is provided for potential prosecutions where a court date has been set. If a case is subsequently needed after the 12 month period has passed, procedures are in place to ensure it is prioritised upon resubmission.
This was the context of the Minister’s response to Deputy O’Callaghan’s Parliamentary Question in July 2017 in which he asked about the resourcing of FSI to address backlogs of drugs cases. The Minister’s reply reflected the position, as advised to him by FSI and that background information provided to the Deputy reflected the factual position. It is a complete misrepresentation of the situation to describe 3,000 cases as having been’binned’.
Increased resources and capacity
FSI is currently addressing the increasing demands for its services and is taking steps to increase capacity significantly. Five new staff were added to the drugs section in 2018 and are now actively delivering on drugs case work. Additional operational funding has also been granted in 2019 to increase capacity for all areas within FSI. Within the drugs section, a further 5 staff have already joined since the beginning of 2019 with a further 9 due to join over the course of the year. Plans are underway to further increase capacity through process improvements and new instrumentation.
Further additional capacity will be supported in a new laboratory at Backweston, Co Kildare, with construction due to start later this year. The schedule for this project has not been impacted by the funding shortfall for the National Children’s Hospital. In any event, the NCH concerns capital funding which has no relevance to the day to day staffing of FSI.
Finally, the issues with regard to Garda youth referral cases are unrelated to the processing of section 3 cases by FSI.”
