Can I Claim Compensation Against Randox Testing Services?

Photo of Kevin Donoghue, solicitor, who considers compensation claims against Randox Testing Services in this blog post.
Solicitor Kevin Donoghue discusses Randox Testing Services compensation claims here.

By Kevin Donoghue, solicitor

Recently, a criminal defence solicitor called me about a potential new client. (I regularly receive referrals from criminal lawyers as I specialise in actions against the police.) The solicitor told me her client was caught up in the Randox Testing Services scandal.

I researched the matter. What I found out was shocking.

What Happened?

The solicitor told me that her client had been convicted of drug-driving. The prosecution relied on a forensic toxicology report from Randox Testing Services (RTS).

Randox is a private company which provided forensics tests. It is in the middle of “the biggest forensic science scandal in the UK for decades”. Last month, Nick Hurd, the Minister of State for Policing and the Fire Service, updated Parliament on the ongoing criminal investigation into the company’s activities.

He confirmed that, in January 2017, Randox Testing Services reported to Greater Manchester Police that “there may have been manipulation of test results at their laboratories”. He continued, “The alleged manipulation raises doubts about the reliability of some test results, which may have been subsequently relied on in court proceedings (criminal, coroners and family).”

The Government Minister confirmed that “Most drug tests from RTS between 2013 and 2017 are being treated as potentially unreliable.” More than 10,000 cases have been identified. It is expected to take up to three years to retest the evidence.

Randox says it self-reported as a whistle-blower. It dismissed the two staff members allegedly responsible for the improper activity. Police arrested the two men on suspicion of perverting the course of justice. They interviewed five others under caution.

Randox Testing Services contracted with nearly all UK police forces. It provided toxicology test results which detected the presence of drugs in hair, blood, and urine. Some of these test results were relied upon to convict people of criminal offences. Three quarters of the cases were for Road Traffic Act offences such as drug-driving, but the rest included:

  • – violent assault
  • – rape
  • – murder
  • – suspicious deaths.

The company also gave reports to parties in civil cases such as family law matters to:

  • – local authorities dealing with child protection decisions
  • – private employers for drug and alcohol testing.

Another company, Trimega Laboratories, carried out similar forensic tests between 2010-2014. The government considers those “potentially unreliable” too. But it does not know how many people might have been affected by similar, unreliable, reports. This is because of the time elapsed and poor record-keeping.

What Did Randox Do Wrong?

In short:

  1. A positive result in a sample showed that the tested drug was present, but
  2. Reports about the amount of drugs in the sample could be inaccurate because the comparison data was manipulated.

Randox Testing Services website describes the testing process as follows:

A liquid sample is taken from a suspect and analysed for the presence of an illegal substance.

To verify that the testing system is functioning correctly, a Quality Control material with a known amount of the illegal substance is tested in parallel. This ensures that the system is delivering accurate results.       

If a sample tested positive then the drug was present to some degree in the sample.  

The Quality Control materials are used to ensure that the positive results reported are within an acceptable 20% variance.

If the Quality Control value is not within this variance then the results cannot be used in court.

The analysts were manipulating the Quality Control data and because of this RTS cannot confidently state (before further testing) that the samples tested in runs where the controls were manipulated, fell within this 20% variance.

Regardless of whether the Quality Control fell inside or outside this variance, any positive samples in the run contained the drug. 

Neither the Samples, nor the Quality Control materials themselves have been interfered with.

Having discovered this “data manipulation” we immediately reported this to the Forensic Regulator, UKAS and the NPCC and have worked very closely with all authorities to resolve the issue.

Can the Randox Samples Be Retested?

Randox says, the samples taken from those affected were not interfered with by the rogue staff members. This means that they could be re-tested using accurate quality control data. Those involved “are prioritising the most serious and pressing cases but all cases where there could have been an impact on prosecution will be assessed, retested and appropriate action taken.”

But, as the National Police Chiefs Council (NPCC) points out, retesting might not always be possible. 10% of samples are no longer held, cannot be retested or relied upon. The NPCC says that in those cases “a full disclosure pack will be created and passed to the CPS for review and to determine appropriate action.” The difficulty for the CPS will be determining how crucial the forensic test results were in securing convictions or increasing sentences.

The Crown Prosecution Service is seeking adjournments in ongoing cases where it is relying on Randox testing reports.

Why Do These Forensic Tests Matter in Court Proceedings?

Randox Testing Services was a well-respected company which contracted with most of our police forces. A positive toxicology report from it could be crucial in securing convictions. Prosecutors and jurors alike put great faith in the science, especially in serious criminal cases. A desire to see “justice” done can influence the dispassionate analysis of evidence.

Some people who have been convicted in cases involving Randox reports are bringing legal challenges. Two men who were jailed for years after drug-driving convictions are taking action in the Court of Appeal. Both will seek to have their convictions quashed on the basis that the forensic evidence was unreliable.

They are not alone. Billal Hartford has already had his wrongful conviction for drug-driving overturned after the court agreed that Randox Testing Services’ report was inaccurate. And, the BBC reports, around 50 other drug-driving prosecutions have been dropped because the original test results may have been manipulated.

Is Randox Testing Services Liable to Pay Compensation?

Randox Testing Services says that it has “no idea” why its employees manipulated the data. The company describes their behaviour as “incomprehensible and bizarre”, because it took more effort to execute the “data manipulation”. The company says:

“We regret the impact of this, and the subsequent hassle and upset it has caused.”

While this is helpful, it does not necessarily absolve the company of blame. The courts expect a lot of expert witnesses, particularly those providing forensic evidence. This is because of the potential for miscarriages of justice mentioned above.

As the Honourable Mr Justice Baker said in a 2012 family law case involving a forensic testing error by Trimega:

“But a high degree of responsibility is entrusted to expert witnesses in family cases. Erroneous expert evidence may lead to the gravest miscarriage of justice imaginable – the wrongful removal of children from their families.”

Trimega was ordered to pay legal costs in that case, and again in a later case, due to its inaccurate reporting.

But every case turns on its own facts.

In November the BBC reported that:

So far, re-tests on samples involved in sexual offence cases, violence or homicide have showed no change.

The retesting process will take years. If Randox’s erroneous reporting directly resulted in wrongful convictions it is possible that claims in negligence could be made. A Claimant must meet three tests to prove negligence:

  1. The tortfeasor (Randox Testing Services) owes the Claimant (wrongfully convicted person) a duty of care
  2. Randox failed in that duty
  3. The Claimant suffered a loss.

Looking at these in turn:

  1. There are strong arguments to show a duty of care, despite there being no direct relationship between the Claimant and Randox. Depending on the circumstances, the effect of the forensic report may have led to a conviction or more serious penalty. As Mr Justice Baker said, the courts hold experts to a high standard. Costs orders are made against them when they fail to live up to those standards. And, in these cases, the Defendant would be the company, not the individual (rogue) scientists.
  2. Producing inaccurate reports, no matter the reason, is a clear failure of the company’s duty. The company may argue that it is not responsible as, it would say, the rogue staff members were acting outside of their duties. There are strong arguments against that view.
  3. A wrongful conviction could lead to compensation for various losses, including:

A claim in negligence could be made against Randox provided all these elements are present. But, as I said earlier, every case is unique, and Randox Testing Services would, no doubt, fight any such claims.

Even if it’s possible to bring a claim, that does not mean it will succeed.

Are the Police Responsible for Randox’s Failings?

It’s possible that the police forces which contracted with Randox are also responsible. This is because of a combination of common law and statutory obligations. Claims could include arguments based on:

  1. The legal principle of vicarious liability.
  2. Breach of the Data Protection Act 1998, in particular, the Schedule 1 Principle requirements that “Personal data shall be accurate and, where necessary, kept up to date” and “Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.”
  3. Misuse of private information. This is a relatively new tort which arose out of the Naomi Campbell v MGN Ltd (2004)
  4. Breaches of the Human Rights Act (1998). The Act gave effect to the European Convention on Human Rights. Claimants could argue breaches of Articles 5 (liberty and security), 6 (right to a fair trial), 8 (privacy), among others.

I expect that police forces would fight any claims based on flawed Randox Testing evidence. Some forces seem to operate a “fight every claim” policy. There’s no reason to think they would behave differently given the potential scale of miscarriages of justice.

But the police have another problem.

Government Minister Nick Hurd told Parliament that in January 2017 Randox Testing Services reported its concerns about data manipulation to Greater Manchester Police. Randox’s accreditation was pulled on 21 March. I don’t know if the company continued to provide reports before then. It is likely that they did because they contracted with most of the police forces in England and Wales.

So now Chief Constables of the police forces involved might be asked: what did you know, and when?

The CPS says that it will seek adjournments of ongoing cases so samples can be retested. But what about those cases where people were convicted on Randox forensic evidence between January and March 2017? What did the police and/or CPS do when they became aware of the problems at Randox Testing Services?

What About Claims Against Trimega Laboratories?

Trimega Laboratories also provided “potentially unreliable” forensic reports. But the situation at Trimega Laboratories Limited is even more complicated. Timega is in liquidation. Any potential claim would involve restoring it to the Companies register. And, as Nick Hurd pointed out, it may never be possible to identify all those affected by the data manipulation because of poor record-keeping. Even if they could be found, the Minister said:

Samples from Trimega cannot be retested, because of the extremely limited chain of custody records and the natural degradation over time of any remaining original samples.

Sadly, it may be impossible to prove that Trimega Laboratories was responsible for inaccurate reports for one, or both, of these factors.

Am I Out of Time to Claim Against Randox or Trimega?

Trimega produced potentially inaccurate reports as far back as 2010. Randox reports from 2013 are also suspect. This means that it may be too late to bring claims for some/ all heads of claim outlined above without court approval. Read more about time limits in these claims here.

How Can I Claim Against Randox or Trimega?

Do you think Randox or Trimega produced inaccurate forensic evidence in your case? Was that evidence used to secure your conviction (including if you pleaded guilty to an offence)? If so, these are the steps you could take:

  1. Contact the solicitors who dealt with your criminal defence. Ask them to review your file to find out if Randox or Trimega produced a forensic report in your case. Don’t delay! Most of the time, solicitors can destroy files six years after closure. Contact us if you would prefer to use a different criminal defence solicitor. We can put you in touch with someone who specialises in criminal court appeals.
  2. Your criminal solicitors should be able to find out if your sample can be retested. Depending on the circumstances, you may be able to get your conviction set aside.
  3. If you are successful, we can review your case with you and your criminal solicitors. Where appropriate, we can help you claim compensation on a “no win no fee” basis.

Consequences

A final thought: those in the criminal justice system trusted Randox Testing Services and Trimega Laboratories to provide accurate, incontrovertible evidence. The companies failed in their task, leading to potential miscarriages of justice with devastating consequences. I trust Randox, the government, and police will act with all due haste to identify cases based on unsafe evidence. And I invite those involved to take a sensible approach to paying compensation. The victims of these scandals have suffered enough.

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors, a law firm which specialises in civil actions against the police.