At the centre of this issue is the relationship between scientific evidence
and ability of the law to use it to arrive at the truth. The task of the
Royal Commission is to see whether the starkly adversarial English judicial
system might be replaced by an inquisitorial one, or mitigated by certain
inquisitorial elements. An adversarial system tends to pit scientists against
each other. It assumes that ordinary people on a jury, having heard two
sets of scientific evidence from experts, will be able to arrive at the
truth by choosing between the two versions. An inquisitorial system assumes
that an inquiry, chaired by an impartial, judicially trained individual
and assisted by impartial, scientifically trained experts, ought to be able
to arrive at an agreed version of scientific truth. There is some evidence
already that the Royal Commission has been persuaded to go down this road,
certainly for suspected miscarriages of justice and possibly for trials
and appeals. However, the experience of the May inquiry on the Maguires
does not augur well for a great leap forward.

The Maguire Seven, as they became known, were convicted in 1976 of running
a bomb factory for the IRA. The only evidence against them was the results
of some forensic tests. In 1977, the Appeal Court refused to overturn the
conviction. However, the May inquiry was set up after the final quashing
of the verdict against the so-called Guildford Four on 19 October 1989,
two of whom had implicated the Maguires in the first place. The only evidence
against the Maguire Seven were thin-layer chromatography tests, carried
out at the RARDE, which seemed to show that the Maguires had handled some
nitroglycerine. ÐÓ°ÉÔ­´´s at the 1976 trial said they had been ‘kneading’
nitroglycerine.

May began three years ago by selecting a fresh expert, Thorburn Burns,
a professor of chemistry at Queen’s University, Belfast, who was ‘independent’
in the sense that he had not previously been involved with the Maguire case.
Burns worked with others who had been involved with each side of the case
to carry out a number of tests and he produced a report which formed the
basis of May’s first report. This discounted the original prosecution assertion
that the tests on thin-layer chromatography for nitroglycerine proved that
the accused had been kneading the substance, suggesting instead that their
hands could have been ‘innocently’ contaminated. As a result, the Attorney
General, on May’s recommendation, referred the matter to the Appeal Court,
which quashed the Maguire convictions.

Then the trouble began. The RARDE, which had not accepted May’s invitation
to be legally represented at the first stage of the inquiry, objected that
the original tests by Burns, which had ruled out the kneading hypothesis,
might themselves have involved an element of involuntary contamination
and therefore been unreliable. Douglas Higgs, a former RARDE scientist who
had been legally represented at the inquiry and had conceded the unreliability
of the ‘kneading’ hypothesis, went back on this concession and joined RARDE
in asking for another round of tests. The fightback was already widening
with leaks to sympathetic newspapers. Although there is no evidence to suggest
it, conspiracy theorists could have concluded that certain policemen and
newspapers were working with scientists to reverse the Appeal Court’s quashing
of the Maguire convictions.

So May found another ‘independent’ scientist, Britain’s most eminent
analytical chemist, Thomas West, lately of the University of Aberdeen, to
chair a committee of all the interested parties and to try to find an explanation
of what happened. In the event, even West’s eminence failed to secure agreement
and May was reduced to receiving two separate ‘adversarial’ scientific reports
from the two sets of scientists. The prosecution scientists from RARDE
remained dug into the ‘reliability’ bunker they had constructed for themselves
in 1976 and doughtily defended for 15 years. The defence scientists were
convinced that contaminated ether in the RARDE laboratories was quite likely
to have innocently affected the results of the RARDE tests and carried out
tests which proved that this could have been the case.

Incidentally, all the scientists agreed on one thing. Many students
of this case had been convinced that police had deliberately contaminated
the swabs with traces of nitroglycerine. No, said the scientists, to a
person: it was far too complicated an operation for unskilled policemen.

Thus this small inquisitorial experiment had failed to support the theory
that, at the end of the day, scientists of goodwill would come together
to underpin the search for truth. Scientific evidence was shown to be just
as fallible as and no more robust than the evidence of ordinary men and
women. The law on evidence in the courts has always been predicated on
the fact that whereas ordinary men and women may be motivated either to
lie or to fail to tell the whole truth, experts have no such motivation.
Their evidence is of a different nature. The May inquiry has dealt this
assumption a serious blow.

It could be argued that the Maguire case, launched as it was as a so-called
terrorist trial, was exceptional. It does seem to have been to this extent.
The loyalty of some prosecution scientists to their original assertions
seemed to lie more in the realm of ‘freemasonry’ (in its non-pejorative
sense) than in dispassionate scientific inquiry. They had each, of course,
spent their careers working for a secret establishment of the British government;
from their first day of employment they had felt themselves under the constraints
of the Official Secrets Acts. Their feelings of responsibility to the fight
against terrorism could have outweighed any scientific duty to test their
theories to destruction. In this respect there seems little doubt that they
were no different from any other scientists with pet theories. At the end
of the day, science is not at all the sort of final arbitrator which the
law would wish it to be, and the weighing of truth comes down to the common
sense of the judge and the jury. The scientific inquisitorial solution
to the nagging doubts over miscarriages of justice may, after all, turn
out to be an attractive mirage.

How can scientists assure themselves that their evidence is unpolluted
by their own narrow training, unspoken assumptions and social prejudices?
Indeed, what safeguards can there be against the misuse of their evidence
by scientifically illiterate judges, barristers and jurors? ÐÓ°ÉÔ­´´s can
no longer sit back as mere technicians and leave such matters to the lawyers.
They need to enter the debate as equals.

Other miscarriages of justice in the past have raised similar issues.
Take, for example, the ‘Confait’ case in 1974, in which three youths were
first convicted and then exonerated six years later of an assumed simultaneous
murder and arson. The crucial scientific evidence claimed that intense heat
could produce rigor mortis within as little as two hours. Three years later,
a number of eminent forensic pathologists – including James Cameron, professor
of forensic medicine at Kings College, London, who had made the original
judgment – asserted the contrary, namely that rigor mortis took at least
four hours, and usually longer, and was unaffected by the heat of a burning
house. n 1976, at the Fisher Inquiry into the case, it was stated that green
discoloration found at the post mortem (never mentioned at the trial or
the appeal) normally appeared only after two or three days. In 1980, Alan
Usher of the University of Sheffield took another look at Confait’s neck
(which had been preserved in formaldehyde) and drew the conclusion that
there must have been two of three days between death and postmortem. So
in the end science revealed the truth: rigor mortis was wearing off, not
on, at the time of the fire.

Talking to some of the pathologists throughout the six years, however,
I was struck by the fact that many of them were deeply convinced that, whatever
scientific evidence they gave, the three youngsters were guilty anyway.
It seems this led to inconvenient scientific evidence being ignored, and
other evidence being presented in a way that suited the prosecution case.
Only Usher, who examined Confait’s neck without knowing whose neck it was
or why he was being asked to examine it, got it right first time.

The Birmingham and Maguire cases concentrated on the investigative value
of scientific evidence derived from thin layer chromatography techniques.
But they followed the same psychological pattern. ÐÓ°ÉÔ­´´s from the Royal
Armament Research and Development Establishment said one had to have been
‘kneading’ nitroglycerine to produce the TLC test results. Their former
boss, John Yallop, disagreed. He was regarded as disloyal by his fellow
scientists, even to appear for the defence.

A range of subsequent tests at RARDE was disclosed neither to the Court
of Appeal nor to the Home Office when they were considering the possibility
of a miscarriage of justice. When, sixteen years later, Thorburn Burns,
professor of analytical chemistry at Queen’s University of Belfast, who
had no involvement in the Maguire case, tested the ‘kneading’ assertion,
he found it false. ‘Contamination’ could produce the same results. At the
recent appeal, it was clear that the scientists saw the issue of contamination
as outside their remit. n attempt was made in the Police and Criminal Evidence
Act of 1984 to counter scientific prejudice. The trigger was a case in Leicester,
in which two forensic pathologists gave conflicting evidence about the expectation
of life of a very young child, and the jury accepted the defence version
– probably because they wanted some excuse to find a highly respected doctor
innocent of manslaughter.

The result so disturbed Usher that he persuaded the Home Office to insert
a provision into the act putting expert evidence on a par with alibi evidence.
Such evidence now has to be disclosed to both parties before the trial so
that some resolution can take place before the scientists come into court.
The move involved a slight mitigation to the stark adversarial framework
of English justice.

The major problem, however, remains the narrow and dangerous psychological
environment which forensic scientists and pathologists inhabit. Because
the pathologists tend to hold joint appointments between universities and
other institutions, they are exposed rather more to the outside world.

Forensic scientists work in the closed and conspiratorial atmosphere
of the Official Secrets Act and government service. Such an environment
cannot breed scientific minds which are impartial between prosecution and
defence, or ones whose scientific judgment is informed by human common sense
and wider social understanding.

The thrust of research both in Europe and Britain today no longer accepts
a dichotomy between ‘hard’ physical science and ‘soft’ social science. The
law, however, continues for its own purposes to rely on the myth of the
‘hard’ absolutes of scientific evidence.

There are lessons to be learnt by both lawyers and scientists. The lawyers,
through the new Royal Commission on Criminal Justice chaired by a social
scientist, Lord Runciman, which has been set up to look among other things
at the way forensic science operates, must accept that a less adversarial
framework is needed if miscarriages of justice are to be avoided. The scientists,
on the other hand, must accept that a wider role is required of them.

ÐÓ°ÉÔ­´´s must also recognise that the age of the polymath is replacing
that of the narrow specialist, and that, within the legal process, a new
sort of scientist is needed, one who is willing to integrate science into
a wider and more generous understanding of human behaviour. That is why
I hope that, under the new, semi-privatised regime, forensic laboratories
will reassess the training and retraining needs of their scientists. Such
a training should include a social science element within it. And these
requirements mean that, wherever possible, the training should be formally
linked with a university or polytechnic.

Christopher Price is director of Leeds Polytechnic, and a former chairman
of the House of Commons Select Committee on Education and the Arts.