The Police decided that wearing a rain jacket, carrying a rucksack with a laptop inside, looking down at the steps while going in a tube station and checking your phone for messages just tick too many boxes on their checklist and make you a terrorist suspect. How many other people are not only wrongly detained but wrongly arrested every week in similar circumstances as myself? And how many of them are also computer and telecoms enthusiasts that fit the Police's terrorist behavioural profile so well? I accept and understand spot checks can be useful, but profiling... this would be a joke if it didn't affect many ‘innocent bystanders’.
Met Commissioner Sir Ian Blair asserted ‘We are not in the business of stopping and searching people who fit a particular profile.’ What then was the premise for even stopping me?
While a police officer did state that my rain jacket was ‘too warm for the season’, could it have been instead that the weather was too cold for the season? This is what the other Met, the Met Office had to say about the weather the day before: ‘London recorded its coldest July day for 25 years on the 27th when temperatures only reached 15.6 °C.’ At least I'm still alive and, over a month later, no longer under arrest.
The Police eventually decided to take No Further Action (NFA): ‘a decision not to proceed with a prosecution’. In a democratic country such as the UK, one would be forgiven for naively thinking that this is the end of the matter. Under the current laws the Police are not only entitled to keep my fingerprints, palm prints (IDENT1) and DNA samples (NDNAD), but apparently they are also entitled to hold on to what they gathered during their investigation: notepads of the arresting officers, photographs, interviewing tapes and any other documents they collected and entered in the Police National Computer (PNC). Hielke Hijmans from the Office of the European Data Protection Supervisor puts it succinctly: ‘terrorism is not out of this world when you retain data’
Aren't the Police supposed to keep tabs only on convicted criminals and individuals under investigation? So even though the Police concluded I was arrested without a cause, otherwise they would have had a duty to prosecute me, personal information remains in the Police national computer; which can be shared with Europol and Interpol, in other Police databases around the world. Isn't a state that keeps files on innocent persons a police state?
This gradual erosion of our fundamental liberties should be of concern to us all.
‘LONDON (Reuters): – A London underground train station was evacuated and part of a main east-west line closed in a security alert on Thursday, three weeks after suicide bombers killed 52 people on the transport network, police said. A Transport Police spokeswoman said Southwark station was closed and Jubilee Line services suspended between Waterloo and Canary Wharf in the east London business district.’ [published on 2005-07-28 at 21:03]
This Reuters story was written while the police were detaining me in Southwark tube station and the bomb squad was checking my rucksack. When they were through, the two explosive specialists walked out of the tube station smiling and commenting ‘nice laptop’. The officers offered apologies on behalf of the Metropolitan Police. Then they arrested me.
19:10 From my workplace in Southwark, South London, I arrange by text message (SMS) to meet my girlfriend at Hanover Square. To save time – as I suppose – I decide to the take the tube to Bond Street instead of my usual bus. I am wearing greenish Merrell shoes, black trousers, t-shirt, black lightweight Gap jumper, dark grey/black light rainproof Schott jacket and grey Top Shop cap.
I am carrying a black Tom Bihn rucksack I use as a workbag.
19:21 I enter Southwark tube station, passing uniformed police officers by the entrance, and more police beyond the gate. I walk down to the platform, peering down to see the steps as, thanks to a small eye infection, I'm wearing specs instead of my usual contact lenses. (The picture was taken on 2006-01-18 during a part reenactment for BBC One. Credit: Mark Shackman.)
The platform is mostly empty. The next train is scheduled to arrive in a few minutes. As other people drift onto the platform, I sit down against the wall with my rucksack still on my back.
I check for messages on my phone, then take out a printout of an article about Wikipedia from inside jacket pocket and begin to read.
The train enters the station.
Police officers, all uniformed men, appear on the platform and surround me. They ask me to take off my rucksack. They must immediately notice my French accent, still strong after living more than 12 years in London. They handcuff me – hands behind my back (the handcuffs have a rigid bar between the two cuffs – i.e. not like the ones often shown on TV). They take my rucksack out of my sight. They explain that this is for my safety, and that they are acting under the authority of the Terrorism Act.
I am told that I am being stopped and searched because they found my behaviour suspicious (from direct observation and then from watching me on the CCTV system):
They empty the content of all my pockets into two of their helmets and search me. They loosen my belt.
One or two trains arrive and depart normally, with people getting on and off. Then a train arrives, and moves slowly right through the station. The driver is told not to stop. After that, no more trains pass through the station.
We move away from the edge of the platform into the emergency staircase. We’re shown the way by two London Underground staffs that then disappear. I sit down on the (dirty) steps.
Some police officers go up and later come back. Their radio system does not work deep down in the station. The police say they can't validate my address. I suggest they ask the security guard where I work, two streets away. They use walkie-talkies to pass the phone number I give them to colleagues.
They swap the handcuffs from behind my back to in front of my body, and we move up the escalators to the ticket office floor of the station. I sit in the booth by the ticket gates for about one minute before a police officer decides we should go outside. We go up to the station doors, and I realise that the station is cordoned off. (The two photographs below are courtesy of London SE1.)
Two bomb squad officers pass by getting out of the station. One turns to me and says in a joking tone: ‘Nice laptop!’ A police officer expresses apologies on behalf of the Metropolitan Police, and explains that we are waiting for a more senior officer to express further apologies. They take off the handcuffs and start giving me back my possessions: my purse, keys, some papers.
Another police officer interferes, saying that this is not proper. I am handcuffed again.
A police van arrives and I am told that I will wait in the back. After about five minutes, a police officer formally arrests me (until that point I was apparently only detained).
20:43 Arrested for suspicious behaviour and public nuisance, I am driven off to Walworth police station.
20:50 Forms are filled in (Code: MS - Custody No: 0504437), and my handcuffs (double locked) taken off so I can write my address. I am given a form 3053 about my rights.
I make one correction to the police statement describing my detention: no train passed before I was stopped. I empty my pockets of the few things they had given me back at the tube station, and am searched again. My possessions are put in evidence bags.
They take two Polaroid photographs (I stand my back to the wall). A few minutes later, they take another set of two.
After washing my hand, a female police officer fingerprints me (all the fingers and palms) by putting some grease on my hands and holding them on a glass surface of some piece of equipment. She then takes DNA swabs from each side of my mouth.
22:06 I am allowed a phone call to my girlfriend: a female police officer dials the number, asks for my girlfriend and tell her that she will transfer me over. My girlfriend is crying and keeps repeating: ‘What happened, I thought you were injured or had an accident, where were you, why didn't you call me back’. I explain that I'm fine and in a police station, my phone was taken and the police officers wouldn't allow me to call. She wants to come to the station. I try to reassure her and ask her to stay at home as I don't know how long it'll take and she caught a cold while waiting and looking for me outside.
22:14 I am put into an individual police cell. I ask for a glass of water. The officer says ‘yes’ but doesn't bring it. About 40 minutes later a female officer asks if I am ok. I again request a glass of water, and it is brought to me.
23:15 A plainclothes officer tells me that my flat will be searched under the Terrorism Act. I request that my girlfriend be called beforehand, so that she won't be too scared. This request is accepted, and I am asked for her phone number. I don't know it – it is stored in my phone – so I explain it is with the officer at the desk. I later find out that they don't call her.
Apart from the two visits to the cell (the one check and the info about the search), every now and then I notice an eye behind the eyehole but I'm not told anything. There's a camera as well. Apparently I was on ‘half hourly checks’.
2005-07-29 00:25-01:26 at my flat. Three uniformed police officers search my flat and interview my girlfriend. One of them asks her to show him some files on her laptop; he's particularly interested in all ‘documents’. They take away from the flat an old IBM laptop, a BeBox tower computer (an obsolete kind of PC from the mid 1990s), a frequency counter (picked it up at a radio amateur junk fair because it looked interesting), a radio scanner (receives short wave radio stations), a blue RS232C breakout box (a tool I used to use when reviewing modems for computer magazines), some aerials and an earpiece. They apparently do not take but have a good look at several mobile phones, a handheld GPS receiver (positioning device with maps, very useful when walking), a Black Hat computer security conference leaflet, envelopes with addresses, maps of Prague and London Heathrow, some business cards, some photographs I took – in particular techie ones such as the ones of the ACM97 conference – for the 50 years of the Association of Computing Machinery, and some cables.
This original list is from my girlfriend's memory, or what we have noticed is missing since (I have updated the list based on what I eventually got back from the Police). The police officers left a notice of the powers to search premises, but this doesn't include an inventory.
03:06 I am retrieved from my cell and formally interviewed by a plainclothes CID officer. I see my rucksack for the first time since I took it off at the tube station. I also notice some of my possessions from home, all bagged up in evidence bags except the tower computer.
This interview is recorded on two tapes. The police again read out their version of events. I make two corrections: again pointing out that no train passed between my arrival on the platform and when I was detained, and that I didn't take any wire out of my pocket – I didn't have any wire. The officer suggests the computer cables I had in my rucksack could have been confused for wires. I tell him I didn't take my rucksack off until asked by the police so this is impossible.
Three items I was carrying seem to be of particular interest to the officer:
Items from the flat the police officer asks about: the RS232C breakout box, the radio scanner and the frequency counter.
The officer explains what made them change their mind and arrest me instead of releasing me. It was because of my connection with my employer. Apparently, on August 4th, 2004 there was a firearms incident at the company where I work. (The next day I find out that there had indeed been a hoax call the previous year, apparently from a temp worker claiming there was an armed intruder in one of the buildings.) Also that some staff had been seen taking photographs of trains at the tube station with a camera phone. (Most of my colleagues do have camera phones – also on 2nd June, as part of a team building exercise, new graduates were supposed to photograph landmarks and try to get a picture of themselves with a policeman.)
04:27 The interviewing officer releases me on bail, without requiring security. On my 60B bail form it says ‘I have been granted bail in accordance with the Bail Act, 1976, under the provisions of Section 34(5)/(7) Police and Criminal Evidence Act 1984 and that I must surrender to custody at Walworth Police Station on Wednesday 31 August, 2005 at 09:00.’
He gives me back most of the contents of my pockets, including my Oyster card, USB key and iPod) and a few things from my rucksack (umbrella and eye drop bottles). Initially he says he will keep my mobile phone. I ask if I can at least have the SIM card? He says no, that's what they need; but he eventually changes his mind and lets me keep the whole phone.
I leave the police station and take a night bus home.
The next day. I get a solicitor and arrange to meet him on the Monday.
The solicitor advises waiting until 31st August.
09:00 I arrive at police station to surrender to custody as required by bail, and am joined by my solicitor five minutes later. We are invited into a small room by a plainclothes police officer a further few minutes later. The officer tells us that it's ‘NFA’ (no further action), explains that this means that they are dropping the charges, and briefly apologises. The officer (DS) in charge of the case is away from the station so the process of clearing up my case is suspended until he signs the papers cancelling the bail and authorising the release of my possessions. The meeting lasts about five minutes.
I send Subject Access request letters to the Data Protection Registrars of
The first three letters ask for any data, including CCTV footage, related to the incident on July 28, while the final one is much more generic asking for any data they have on me. They all have forty days to respond.
I talk to my solicitor about ensuring the Police return all my possessions, give us all the investigation documents (which they may or may not do) and expunge police records (apparently unlikely to happen).
The solicitor sends a letter to the officer in charge of my case asking him to authorise the release of my possessions and forward us a copy of the custody record, and conveying to him how upset I am.
I write to my Member of Parliament about my concerns on what is happening to our civil liberties.
The Guardian publishes a slightly edited version of this page titled ‘Suspicious behaviour on the tube’ on the front page of the 2005-09-22 edition. A great many thanks to those (Andy & Will) who convinced me I should publish this story (against the advice of my solicitor who explained there's often lots of stigma associated with having been arrested even when innocent), to those (Will & Andrew) who helped me edit it and to everyone at the Guardian (especially Jack, Ian, Alan, Paul and Sarah). The Guardian's front page is shown on Newsnight!
The feedback I receive is very supportive. In some email messages, the senders mentioned reading the article prompted them to contact their Member of Parliament. Discussions and comments are happening on many websites. It clearly justifies, a posteriori, this publication. My gratitude to everyone who offered sympathy and to those doing something to ensure civil liberties are respected in the UK (and everywhere else).
I participate in a one hour and half live interview (MP3 - 20.3 MB) on RampART radio (Indymedia).
I talk to my solicitor. He hasn't received any response from the Police to his letter dated 2005-09-08 (neither have I). He will send another letter higher up the hierarchy.
I realise that it will now be extremely difficult, if not impossible, for me to travel to the USA (and this may limit my career options): ‘Under United States visa law people who have been arrested are required to declare the arrest when applying for a visa.’ The visa application process takes ‘a minimum of 14 to 16 weeks’ and before that ‘Applicants applying for a visa at the Embassy in London are required to furnish a Subject Access statement from the National Identification Service at New Scotland Yard’. There's no guarantee that a visa will be issued.
The Dallas Morning News publishes ‘Brits wonder if terror bill goes too far’ by Tod Robberson, European Bureau Chief, on the front page of the 2005-10-01 edition. The article is partly based on an interview I did with Tod Robberson. (This article has since been syndicated with the headline: ‘Britons wonder if anti-terrorism efforts go too far’; it has been published in at least fifteen other US newspapers.)
He asked the Police why they arrested me: ‘Ms. Goodall [a police spokeswoman] declined to say why Mr. Mery's behavior was regarded as suspicious.’
He also quotes me: ‘“The whole thing about the jacket worried me. That was the excuse they used to kill Jean de Menezes. If you think about all of the risks of being attacked by terrorists, and then you think of 3,000 police carrying guns with shoot-to-kill orders, it's kind of worrying. Terrorism is a great danger, but I think the danger from the police is equal as well.”’
The police asked my solicitor that I contact them (this is following the letter my solicitor sent exactly a month ago). I talk to them briefly. They should call me back on Monday to arrange a meeting later in the week. At this meeting I'm looking to get my possessions back, all the documents related to the investigation and a formal apology. I also want to discuss the possibility of the record of my arrest being expunged. Monetary compensation would be welcome as well (I had to buy another laptop).
I'm invited to participate on BBC Radio Five Live in a special The Way Forward news programme debating issues three months since the London bombings. Matthew Bannister interviews me (6.6 MB) at around twenty past midnight. (In the full programme my bit is from 2h22'02" to 2h32'25".)
15:00 I visit the police station with my solicitor. The police officer gives me a partial copy of the Custody Record (Form 57). It does not contain the inventories of the content of my rucksack or what they took from the flat. The detail pages are not numbered and do not include the ‘facts of arrest’. The Reasons for arrest is listed as: ‘Other offence causing a public nuisance. DP [detained prisoner] caused a major evacuation of three main line rail stations after his deliberate actions caused police to believe he had explosives’. To the best of my knowledge this is factually incorrect, only Southwark tube station was closed. I couldn't find any mention of even one main line rail station being closed (if you're aware of any please email me). On the form they note: ‘DP is calm on arrival [at the station], almost too calm’ and as a consequence I was ‘placed in a video cell on half hourly checks’. Interesting to realise that being calm is something that disturbs the police!
The officer brings in the items they took when they searched my flat, and the three items I had on me (promotional booklet, the page with doodles and the pass) for which they had a special interest. I point out that the rucksack and its content are not there. He goes away to find these other items and brings them back. I notice that some items I thought they had taken from the flat are not there. Apparently my original list was erroneous – it included items they had a good look at but didn't take. When the rucksack is taken out of the evidence bag, I notice that it has been cut open. (Many thanks to Darcy at Tom Bihn who offered me a replacement bag.) The officer suggest I send him a complaint letter.
The officer believed a Bail Cancellation Notice (Form 60C) had been given to me when they told me they didn't press charge. After having to insist that this wasn't the case, I get the form, dated only 2005-10-05 and stating that the need for me to ‘return to Walworth Police Station has been cancelled [as] no further action is being taken (reason): insufficient evidence’.
After being reminded, the officer goes to make a copy of one (of the two) interviewing tapes and give it to me. The recording quality is poor. The tape is copyrighted by the Metropolitan Police.
16:10 I leave the station with two very heavy big transparent plastic evidence bags full with the possessions I got back (two months and two weeks after the police took them).
They will keep on file my fingerprints, palm prints, DNA samples and photographs, the arresting officers' notebooks, the interviewing tapes and any other documents they collected or created during their investigation (CCTV tapes, details of all the officers involved, etc.) I also have not received any formal apology or any compensation. And of course no assurance that other innocents won't be arrested in similar circumstances.
It's also just a month since I wrote to my Member of Parliament. I haven't received a reply (yet). Ironically she is a human rights lawyer.
I decided to check on the Royal Mail website when the four subject access requests I sent on 2005-08-31 to various Data Protection Registrars (DPRs) were received. The ones to Transport for London and British Transport Police were received on 2005-09-02. The Royal Mail site has no track record of delivery of the letters to the London Underground or the Metropolitan Police DPRs. As I received a reply from the Met, I know that this letter has been delivered! So that leaves the one to London Underground. Either the London Underground DPR did get the letter at the same time as the other DPRs and is now in breach of the Data Protection Act or the Royal Mail has managed to lose one recorded delivery letter. It's not yet forty days since I last got correspondence from the British Transport Police and the Metropolitan Police (and the Transport for London DPR wrote back explaining that its data retention period is only 14 days).
On 2005-09-21, it was widely reported that Scotland Yard had scrutinised footage from 80,000 CCTV tapes going back to at least June 28. That's a retention period for CCTV footage of at least twelve weeks. None of the press reports have stated whether this is normal Police procedure (data retention) or whether this was an exceptional measure for the investigation in progress (data preservation).
I am interviewed on 2005-10-21 by John Sudworth for the BBC Radio Four programme Broadcasting House presented by Fi Glover. My interview (1.5 MB) is used as part of an extensive segment (from 17'52" to 31'15" in the full programme – not online anymore) on the misuse of Section 44 of the Terrorism Act (Stop and Search), broadcast on Sunday 2005-10-23 at 9am.
I just came back from two weeks holidays in Asia. Going through passport control went fine except for immigration officers checking my passport in minute details. Coming back to the UK, at Heathrow, the officer even took a magnifier from his pocket to check the page with the picture. I presume this is more to do with the fact that I still have an old style non machine readable passport, than anything on file. No question asked.
I received the Subject Access from the Met. It is dated 2005-10-23. It contains ‘information that may be held about [me] by the Metropolitan Police on computers in the following categories:- Person Record: Prosecution/Conviction’. There's no category section in the Met DPR entry, but I presume it corresponds to ‘Purpose 2’ [update: the link to the entry – www.esd.informationcommissioner.gov.uk/esd/DoSearch.asp?reg=2789622 – is now dead and I cannot find the new DPR entry for the Met. the registration number is Z4888193]. Are there any other interesting categories one should explicitly ask for? The cover letter does mention: ‘If you requested any categories not shown above the Metropolitan Police will send you a separate reply.’ When I was interviewed, the officer had an exact list of all the addresses I lived at in the UK. Surely this must be on the PNC – in another category? Ditto the fact that I did have a press card registered with Scotland Yards many years ago?
Information listed includes (terms used in the document):
Arrested at 20:43 hrs on 28/07/05 Public nuisance Common Law Offence originator: 01MD Offence date(s) / Time(s): 28/07/05 20:30 Offence address: Southwark L.T Tube Station., Southwark, London, Post code: SE1 Committed on bail: No Court ref: Not yet fixed Prosecuting agent: Police Court: Not yet fixed Date: Not yet scheduled
This confirms that the Police keep PNC records of innocents that have been wrongly arrested. The detail is is also cause of some concern and further questions:
The cover letter includes the helpful suggestion: ‘If you think that the information is incorrect please write to the above address quoting the reference number.’ As these records cannot be expunged, I'm keen to at least have the fact the Police dropped the charges added.
I am interviewed live on the Sky News Today television programme at 14:30. This is part of the coverage of Tony Blair pushing his plans to let the Police detain terror suspect without charge for up to 90 days. That the Police ask for more power is expected, but that the Government goes along in asking for laws that wouldn't be out of place in dictatorships or apartheid-type regime should be of great concern to all.
As I get out of the Sky News studio, Five News is interested to record an interview and we film it in the park outside the studio. This was planned to be used on the day at 17:30, but it doesn't appear to have been shown during that slot.
With Australia planning new anti-terrorism laws based on the British ones, there's a sudden strong interest in the failings of the current British laws. The Australian Financial Review publishes an article on counter-terrorism mentioning what happened to me.
An interview (13.2 MB) with Phillip Adams, I recorded on Monday, is broadcast on ABC Radio National. This is part of Late Night Live (from 12'39" to 24'10" of the full programme).
I am also interviewed (8.5 MB) live as part of Breakfast with Peter Godfrey on Radio Adelaide.
I send an email to my Member of Parliament exactly two months after having written to her at the House of Commons and not having received any reply or acknowledgement.
I meet with Dan Kieran who interviews me for a book he is writing, ‘a funny journey through some of our oddest laws, pointing out that some modern legislation is just as odd as the old ones but in your case and many others I've tracked down, far more frightening.’ In his introduction email, Dan mentioned:
It really would be fantastic to interview you because the best way to make people realise that their personal freedom is being eroded away is to tell your story because what happened to you really could happen to anyone. I think, for that reason, it will have a resonance that some of the other stories will not.
Last week I sent another email to my Member of Parliament suggesting I drop in at her open surgery. Later in the week I got a call from someone working for her who instead arranged a private meeting for today at Portcullis House.
It was a friendly meeting. She offered support if I don't get satisfaction from the Police via legal routes but it was otherwise a rather frustrating conversation. For instance, we discussed the compromises she finds necessary as part of the political system – one such example was her support of the compromise to extend detention of suspects from 14 up to 28 days without charging them (successfully defeating the 90 days amendment). This even though she practised as criminal barrister. See Gareth Peirce and Louise Christian's tales on how even 14 days or less in Paddington Green affect the mental health of detainees. These are not abstract compromises, the lives of individuals who have not been charged, and hence by definition are innocent, will be deeply affected.
One comment made in passing about this debate, I now find rather shocking: apparently during the Terror Bill debate and vote on the 90 days resolution, there was strong presence of armed police officers around the Parliament that this MP felt was to pressurise the Parliament. In a democracy, MPs should not feel intimidated by the Police.
A suggestion my MP made was that I talk about my experience to police officers during their training. I'd be happy to do so, but I believe the main issues are with the legislation and the public accountability of the Police (even Sir Ian Blair recognised this in his Dimbleby lecture: ‘policing is too important to leave to police chiefs – or to party politics alone.’) It would be interesting to know if the decision to arrest me was taken by vindictive officers on the scene or by someone higher up the hierarchy possibly not even present at the tube station. I believe the latter is more likely.
Sir Ian Blair, Metropolitan Police Commissioner, is reported by Bloomberg to have said at the MPA ‘Together Against Terror?’ conference today: ‘London police have arrested 130 suspects since suicide bomb attacks in July, yet the threat of terrorism continues to increase’. (To contrast, that's more that all the resultant arrests, whether in connection with terrorism or not, resulting from stop and searches conducted under Section 44(2) during the combined financial years 2003/4 and 2004/5: the Met arrested 125 persons during this period – apparently.)
That's 130 arrests just in London from July 7 to December 12, and I was arrested on July 28, so the number by then must have been even smaller. Out of all the people in London they singled out 130 persons and I was one of them. One would be led to believe that the Met had serious intelligence on these 130 persons, but if the cases of the other 129 are similar to mine then it shows that the Met must work more effectively, not ask for more powers.
The Association of Chief Police Officers just published an Interim practice advice on stop and search in relation to the Terrorism Act 2000. On searches authorised under Section 44, the powers used to stop and search me, the policy note states:
‘The power is only to stop and search. This means that there is no power to detain for the purpose of questioning or to ask questions to allay the need for search.
A record of the stop should be given as required by PACE Code A.’
This explains why I was told I was arrested for suspicious behaviour and public nuisance but only the latter appears on the extract of the custody record I obtained. If I understand this correctly, I was stopped under one piece of legislation: Section 44 of the Terrorism Act 2000; arrested under another: the Terrorism Act was mentioned, but the Police National Computer record states public nuisance offence, Common Law (which carry a maximum sentence of life imprisonment or a fine or both); and my flat searched under yet another: Section 18(1) of the Police and Criminal Evidence (PACE) Act 1984.
I never got a record of the stop, but then it says one ‘should be given’, not one must be given.
I am interviewed for the Politics Show television programme. The reporter is interested in how the Stop and search policy works in London. The filming is done on location where I was arrested last July: Southwark tube station. (I have since discovered that filming and taking photographs of London tube stations without obtaining a permit in advance is now illegal – the London Underground staff did threaten to call the Police but we moved away to avoid confrontation without realising that we could have been arrested.)
The programme is broadcast on BBC One on Sunday 2006-01-22 at 12 noon. The segment of the programme on Stop and search starts with a reenactment of me entering the tube station; dressed as I was on 2005-07-28 – and a bit cold. After some pre-recorded interviews, including mine, there's a live debate with former Home Office criminologist Professor Marian Fitzgerald visiting professor at Kent University and Bob Neill, Conservative, London Assembly Member and member of Metropolitan Police Association (I have received two independent confirmations that the MPA requested and obtained – in confidence – a report about my arrest from the Metropolitan Police Service). Professor Fitzgerald mentions that ‘under the Terrorism Stop and search [legislation], the arrest rate there is only 1% and very few of these arrests are anything to do with terrorism.’
In both the Sky News Today and the Politics Show interviews, the caption introduced me as 'Former Suspect'. Is that more appropriate than say ‘London resident’ or ‘Tried to take the tube’? Such captions have to be short, but this shortening of what is really ‘Formerly considered by the Police to present a suspicious behaviour’ can give the impression of a universality. This would erroneous. Let me know how you react to this label.
I have so far accepted all the invitations from reporters who contacted me (as the only one of the 130 ‘suspect’ arrested in the five months following July 7 to have apparently gone public). I feel it is important as many people as possible are aware of what can and may happen to them – so they can actively ask for and participate in a debate about the society we all live in.
I send two further Subject Access requests to the Met. This time, I fill in the two forms A & B and send them with a certified copy of my passport, some utility bills and a cheque of twenty pounds. I specifically ask for information held about me in the PNC – updated to show that I'm not under arrest any more, a copy of the report about my arrest the Metropolitan Police Service (MPS) sent to the independent Metropolitan Police Association (MPA) and any other information held about me under any other category (for instance, I know from the interview that they have a list of all the addresses I lived at in the UK). I take this opportunity to request the list of categories as well.
Someone from the Met calls to enquire about my Subject Access requests. He wants to know where I had been arrested and to which Police station I had been taken to. This, even though I had included the PNC Id in my request (the PNC information includes details of the ‘offence address’).
I receive the Subject Access for the following category: ‘Person Record: Prosecution/Conviction’. The letter and the ‘PNC Response Recorded’ are both dated 2006-02-28. The PNC has been updated and now shows the summary of my ‘non conviction’ with the ‘date first non convict’ and ‘date last non convict’ both 2005-08-31:
Non convictions summary Non convictions :1 Offences :1 Date first non convict :31/08/05 Date last non convict :31/08/05 Offence summary 1 public disorder offences (2005) Prosecution agent: Police 1 Court :NFA (No Further Action) No court appearance Date :31/08/05 Plea :Not known Adjudication:No adjudication Disposal :NFA No court appearance
I would have preferred mentions of the arrest to have been deleted, but as this is apparently not possible, at least the PNC now states explicitly that I'm no more under arrest.
At last I feel I can now stop carrying the Bail Cancellation Notice on me. Not knowing when the PNC would eventually be updated, I felt safer carrying a proof that the Police had decided to take ‘no further action’.
The cover letter includes the usual: ‘If you requested any categories not shown above the Metropolitan Police will send you a separate reply.’ So I'm expecting to receive further post concerning my other requests. There are still two more weeks for the regulatory 40 days in which the Met Data Protection Registrar has to answer.
At the end of last year the Metropolitan Police suggested a meeting with a senior officer involved with, possibly even in charge of, the operation that led to my arrest. I instructed my solicitor that I was keen for this meeting to happen. I did have one request: that I could record the meeting, and that if the officer refused I still wanted the meeting to happen but was keen for the officer to then provide written reasons why they didn't want me to record anything. People were busy, then there was the New Year holidays. Last month, another letter was sent by my solicitor and another 14 days lapsed without a reply from the Police. This is obviously not happening. Got the news in the post this morning. This also means it is the end of the criminal law aspect of my case and my solicitor (paid by Legal Aid) is handling me over to a colleague of his dealing with civil law matters such as actions against the police.
The same person from the Met calls again, this time to get the crime reference number (CRO). I had included this information on the form (my handwriting may not have been legible) and it is on the PNC extract I received a week ago.
I receive the remaining Subject Access documents for the requests I made two months earlier on 2006-02-07 (I did get an apology letter on 2006-03-28 for the delay from the Met's Data Protection Officer). The envelope contains a cover letter dated 2006-04-04 (explaining that ‘that under the Act, the data supplied is held by the MPS under the “Standard Police Notification” for the Purpose of Policing’), the relevant Notification (still no list of categories) and a ‘Briefing Note – Arrest of Mr David MERY’ issued by the Metropolitan Police Service – Southwark.
The briefing note is not dated but it starts with a mention of ‘Mr Mery has written an article for the Guardian on 22/09/2005 covering the circumstances of his arrest at Southwark Underground Station’ and finishes with a mention of ‘the return of the property seized by police’ so it appears to have been written at the end of October last year (the MPA had a copy by the beginning of November). It is two and half page long. Twenty one numbered sections – ‘information held that can identify a third party, or that you are otherwise not entitled to’ - have been edited out (about a quarter of the document). Surprisingly, the name of the Supt that ‘attended and took command [...and...] formed the view that there were reasonable grounds to suspect an intended [sic] by Mr Mery to cause apprehension and fear among the public and officers that he had explosives’ has not been edited out.
The background section of the report states: ‘He provides a detailed account of the incident in the Guardian article. The general chronology of the incident appears correct. He describes his behaviour, which apparently aroused the officers' suspicion. This is generally in line with what was observed by the officers.’
Even though the MPS agrees at a high-level with my version, there are some disagreements:
Later today, I spot the document Retention Guidelines for Nominal Records on the Police National Computer, incorporating the Step Down Model issued by the ACPO. According to section 2.5 of this document, I am ‘referred to as a “CJ Arrestee”’ and according to section 3.1 ‘[my] record will be retained on the PNC until that person is deemed to have attained the age of 100 years of age’. (If I live that long, I'll have to remember to issue another data subject access on my 100th birthday to check if it is then effectively deleted.)
I pop in the Independent Police Complaints Commission (IPCC) and give a filled in complaint form (dated 2006-04-17) to the reception. The form asks the ‘where?’, ‘when?’, ‘what?’ and ‘who?’ of the incident that led to the complaint. It does not ask about the specific police misconduct one is complaining about or what outcome the complainant is wishing for. I presume this is discussed further with the IPCC when the incident is considered serious enough for a complaint to proceed. I also decide not to proceed any further, at this time, with a civil law solicitor.
A more positive entry on this now long tale on how several helpful individuals have been of great assistance.
Last November, AlistairT, a reader of this page contacted me to let me know he had written to his London Assembly member to ‘ask what they thought the police were doing and what they were doing to make sure this kind of outrage didn't happen more often.’ His London Assembly Member Jennette Arnold, also a member of the Metropolitan Police Authority (MPA), replied that the MPA had requested and obtained a full explanation from the police and would continue to monitor the actions of the police as they relate to the Terrorism Act. With the assistance of Jennette's team and with another data subject access I managed to get a redacted copy of the briefing note last month.
I eventually met Jennette at her office last Wednesday. We had a fruitful discussion and she suggested I use my right as a member of the public to put a written question to the MPA. This had to be done by the next day to be in time for the May 25 full Authority meeting. I couldn't find any guidelines on how such question should be formulated so my first attempt, written Wednesday night, was two-page long and included a mix of personal and more general context. The MPA helpfully explained that such questions should not be on personal issues and that usually they are no more than a paragraph. My second attempt is focusing on policing in London and is much shorter (see next entry)
Beginning of April, KenT, another reader of this page emailed me to suggest I write to Lord Carlile of Berriew QC, the Independent Reviewer of the Terrorism Act 2000, as he was quoted by BBC News as saying: ‘People should not be arrested under the Terrorism Act unless there is a real terrorism issue [...] The most important thing is if there has been an error, then there should be fence-mending at once and it may have to start with an apology’.
To my surprise, Lord Carlile replied, on a Sunday, less than an hour after I had emailed him! He explained that even though individual cases are generally outside his terms of reference, he would attempt to obtain a response from the Home Office to the questions I raised. Unfortunately the Home Office proved less helpful. As there are factual issues in dispute between myself and the police, as explained in details in previous entries, Lord Carlile suggested I pursue a complaint via the Independent Police Complaints Commission. I initiated such a complaint last month.
It does make a positive difference to receive so much support from readers and occasionally from people with some authority.
The agenda for the May 25 MPA full Authority meeting has been published. It includes the text of my question followed by a proposed response from the Chief Executive and Clerk. See below for a copy of my question.
The proposed response mentions that the ‘MPA does not consider the Metropolitan Police Service (MPS) to have overreacted to the horrific terrorist attacks [...]’ This is obviously an essential disagreement. On the consultative activities of the MPA, the response starts by mentioning the ‘Together Against Terror?’ conference of last December. Unfortunately attendance was by invite and the process by which the list was created lacking in transparency. Before going into generalities, the response mentions that ‘as a result of public feedback, the MPA has secured the agreement of the MPS to publish its statistics on Section 44 (Terrorism Act 2000) stops and searches’. This is most welcome. Getting these statistics will help getting a better understanding of the wider picture and of the propaganda. It is unfortunate that the MPS is several months behind in publishing such statistics.
The MPA Standing Orders section 2.7.4 explain that ‘following the Clerk’s response, the person asking the question may speak further for no more than three minutes’. I intend to attend. If you're interested in the May 25 agenda, the full Authority meetings are open to the public, however this is only to view proceedings and not take part in any of the debate. Seats are limited so you should arrive before 10.00 am. You are apparently free to leave the meeting at any stage and do not have to wait until the meeting is finished.
The full Authority meeting of the Metropolitan Police Authority (MPA) is an impressive affair with about thirty persons seated at tables arranged as a large rectangle. Everyone has a name plate and a microphone. I am in the 'speaker' chair. It seems the public consists mostly of assistants to the MPA members and of journalists. My question is early in the agenda, first item after approving the minutes of the previous meeting.
I briefly introduce myself and refer the audience to my question as printed in the agenda:
‘To be a Londoner these days is to feel one is considered guilty until proven innocent. The overreaction of the Metropolitan Police Service (MPS) to the horrific terrorist attacks of last July has resulted in many innocent Londoners suffering from the long-term effects of having been arbitrarily detained and/or arrested. Another consequence of this worsening policing of London is intimidation, increased mistrust and even fear of the MPS. This has not enhanced our security, to the contrary.
What is the MPA doing to ensure that police powers are more balanced and checked so they are not further abused against innocents Londoners? Is the MPA actively consulting with the innocent Londoners that have been arrested and released without further action? What actions are taken by the MPA so that Londoners can stop being paranoid about which aspect of our behaviour or clothing, or which picture we take will be used as an excuse for detainment, arrest or shooting by the MPS? How does the MPA plan to restore trust in the police?’
The response from the Chief Executive and Clerk is read. The final response is the same as the proposed one that was published in the agenda:
‘The Metropolitan Police Authority (MPA) is fully committed to the principle of innocence until proven guilty. The MPA is also acutely aware of the need to strike a balance between robust counter-terrorist policing, the protection of fundamental civil liberties, and the maintenance of public trust and confidence in the police.
The MPA does not consider the Metropolitan Police Service (MPS) to have overreacted to the horrific terrorist attacks which killed 52 innocent people in London on 7 July 2005 and the attempted bombings a fortnight later. The MPS responded with the seriousness that these acts of indiscriminate murder demanded. Notwithstanding the tragic death of Jean-Charles de Menezes on 22 July 2005, the MPS response in terms of both disaster-management and investigation has drawn respect and recognition from around the world. A MORI survey in September 2005 suggested that 86% of Londoners believe that the MPS responded well to the attacks.
Recognising the potential which Londoners themselves have to contribute to the safety and security of the capital, the MPA has undertaken to deliver a series of consultative activities in the field of counter-terrorism. The first of these activities was the MPA's ’Together Against Terror?’ conference in December 2005, attended by over 150 community members. Planned activities in 2006 include a series of public hearings, focus groups in universities and colleges, and local consultation in all 32 London Boroughs.
The MPA consults Londoners in order to understand what the public expect from the police. It does then respond to their views. For example, as a result of public feedback, the MPA has secured the agreement of the MPS to publish its statistics on Section 44 (Terrorism Act 2000) stops and searches.
Separate arrangements, defined by statute, are in place for dealing with public complaints and specific allegations of police misconduct. The MPA works closely with the MPS and the Independent Police Complaints Commission (IPCC) to ensure that complaints against the police are handled properly.
In counter-terrorism, as in all other fields of policing, the MPA remains committed to securing an effective, efficient and fair police service for all of London's communities.’
As the MPA's response is the one that was published, the response to the response I had prepared is fully valid and I read through my notes, hopefully in the allotted three minutes:
As ‘The Metropolitan Police Authority (MPA) does not consider the Metropolitan Police Service (MPS) to have overreacted to the horrific terrorist attacks’ of last July 2005, and that ‘the MPS response in terms of both disaster-management and investigation has drawn respect and recognition from around the world’ we have an essential disagreement. If the MPA finds the MPS is doing a perfect job in respect to its anti-terrorism response then a discussion on how it can be improved is not possible.
This satisfaction can not be shared by all Londoners when there are so many stop and searches under Section 44(2) of the Terrorism Act 2000, and subsequent arrests of innocent Londoners. This does not make us any more secure but does impact the lives of Londoners.
Even Sir Ian Blair, the Metropolitan Police Commissioner, appears to disagree with MPA's assessment. He is reported by Bloomberg to have said at the MPA's own 'Together Against Terror?' conference last December: ‘London police have arrested 130 suspects since suicide bomb attacks in July, yet the threat of terrorism continues to increase’.
That's more than all the arrests, whether in connection with terrorism or not, resulting from stop and searches conducted under Section 44(2) during the combined financial years 2003/4 and 2004/5 (the Met arrested 125 persons during this period according to the Statistics on Race and the Criminal Justice System). And that's only for five months.
Former Home Office criminologist and visiting professor at Kent University, Professor Marian Fitzgerald mentioned on BBC One, on 22 January 2006, that ‘under the Terrorism Stop and search [legislation], the arrest rate there is only 1% and very few of these arrests are anything to do with terrorism.’
This shows that that the MPS must work more effectively with more intelligence instead of stopping, searching and arresting Londoners, without reasonable cause, on the basis of a stereotypical profiling.
How can the MPA be satisfied that the MPS keeping DNA samples, fingerprints and palm prints of innocents forever, and PNC records, including mentions of non-conviction, until the Londoner reaches 100 years old increases our security.
The MPA is to be commended on getting the MPS to publish statistics such as the Statistics on Race and the Criminal Justice System. May I suggest the MPA puts further pressure on the MPS for the statistics to be published earlier and to include the number of arrestees being tried and how many are convicted.
The MPA's 'Together Against Terror?' conference was I'm sure a very interesting. It is unfortunate that its existence was announced by a press release only three days earlier and that the selection of the over 150 (100 in the press release) community members has not been open and transparent. I couldn't find transcripts or videos of the event, either. Hopefully lessons have been learned from organising this event and the forthcoming events will be more open to Londoners.
I am disappointed that your response has not convinced me that ‘in counter-terrorism, as in all other fields of policing, the MPA remains committed to securing an effective, efficient and fair police service for all of London's communities.’
According to MPA's standing orders, members may also comment on or discuss the issues raised by the question and answer. In addition to the Chair, three members take this opportunity and are on the whole more favourable with the issues I raised than the rather generic answer from the Chair:
The Chair corrects the fact that some transcripts from MPA's 'Together Against Terror?' conference are available here and here, and otherwise reiterates that stop and search is just one of tactics at the disposal of the police and that 'we can't rule out any tactic'. The Chair also refutes my argument that stop and searches happen on the basis of a stereotypical profiling, arguing that there's no profiling: all races are likely to be stopped and searched (but possibly one faith).
Independent member John Roberts, Chair of the Stop & Search Scrutiny Board, offers to meet up at a later date.
London Assembly member Jenny Jones is grateful that my question was asked and comments further that it is a balancing act between civil liberties and security.
London Assembly member Jennette Arnold, who suggested I send a question to the MPA in the first place, reminds everyone that my question only scratches the surface about the experience innocent Londoners face when being caught up in such circumstances.
The Chair concludes this agenda item pointing out that he wouldn't want anyone to think the MPA is a soft touch when some people lose their life.
I leave the 'speaker' chair and move to one a the few remaining free chairs reserved for the public.
My notes are far from extensive and are here just to give a flavour of the discussion. The minutes published by the MPA have even less details. Be sure to check these out as they'll most probably have more details on the comments to my questions and other interesting information (such that it took 78 officers – more than has been reported so far by the press – six hours at a cost of £7,500 [apparently Sir Ian Blair misled the MPA and the cost is in fact £27,754] to seize Brian Haw's placards; and also an interesting discussion on the increased number of young Londoners carrying knives and the rise of knife crimes.)
Last week I received a letter from the Independent Police Complaints Commission (IPCC) acknowledging receipt of my complaint form. The casework manager looking after my case has ‘referred the matter to the Professional Standards Department of the Metropolitan police for consideration’ and the police should be contacting me in about a month.
The Independent Police Complaints Commission (IPCC) casework manager looking after my complaint form calls to inform me that it was considered my complaint is serious enough to warrant the IPCC to supervise the investigation by the Internal Investigations Commands (IIC), Directorate of Professional Standards (DPS) of the Metropolitan police.
Today, the Report on the operation in 2005 of the Terrorism Act 2000 by Lord Carlile of Berriew Q.C. is published by the Home Office. One of the point made by this report with which I am in full agreement:
‘Terrorism related powers should be used for terrorism related purposes; otherwise their credibility is severely damaged. [...] In a diverse community the erroneous use of powers against people who are not terrorists is bound to damage community relations.’
Lord Carlile includes a list of 86 ‘persons and organisations seen and/or involved in consultations and activities and correspondence’ and is welcoming further relevant information:
‘However, there is a steady increase in the number of informal contacts and suggestions I receive from members of the public. They are sometimes of real value, and I welcome them all.
I do not offer any kind of appeal procedure for individual cases. However, I do read some documents referring to individual cases, and I do ask questions about them and can offer advice and comments. I am particularly anxious to obtain the assistance of more members of the public who have had some contact with the TA2000, whether as observers, witnesses, persons made subject to powers given under the Act or as terrorist suspects. It is not always as easy as one would wish to make contact with those who have had these real-life experiences.
Anyone wishing to provide me with information is very welcome to do so by writing to me at the House of Lords, London SW1A 0PW or sending me information via the Internet on email@example.com.’
I meet John Roberts, Chair of the Stop & Search Scrutiny Board at the Metropolitan Police Association (MPA). This was agreed when I asked my question to the MPA. I learn that this board has recognised some issues with Stop & Search and has addressed them primarily through Police training (some officers had their initial training long before Stop & Search came into existence) and public education (close to 60,000 thousands leaflets have been distributed). The former initiative is aimed at improving the standard of Stop & Searches while the latter aims to inform the public of its rights. I suggest complementing this, within the small budget available, with online participation in political blogs and online communities frequented by young Londoners (if you are under 26 years old , you are more likely to be stopped and searched). One concern I have is that this board's remit is Stop & Search under PACE, hence Stop & Search under Section 44 of the Terrorism Act is not its focus. This explains why not much effort has been spent finding ways to reduce or even eliminate the long term negative impacts of Stop & Search especially when it leads to an arrest as in my case. Another aspect I believe could still be improved is getting more feedback on Londoner's experience with this tactic as there are apparently very few complaints being made (and John Roberts has explored the possibility of proactively seeking feedback; this is made difficult by the fact that many name and addresses given are apparently invalid). I should receive more documentation on some of the results of this board.
Later in the day I get a call from the Investigating Officer, a Detective Inspector, tasked with my complaint against the Police. He explains that I have four options: a/ complaint logged on file (and not pursued), b/ complaint made (and explanation of the police action obtained), c/ full investigation and d/ local resolution. We agree that the first two options are inappropriate. For the latter two options, the procedure will start with the Investigating Officer taking a statement from me. From the discussion, my understanding of the last option is that the statement is brought to the police officers involved, for them to respond to the allegations. A record of this is made to their file, and the result is communicated back to me. At this stage, I am unclear as to which option is most appropriate. After reading more information, such as Part 2 of the Police Reform Act 2002, an Independent Police Complaint Commission (IPCC) leaflet on what to expect when a complaint is dealt with by Local Resolution and part of another one for the Police, I am getting even more confused as these documents don't seem to fully match my recollection of the earlier phone conversation. The Investigating Officer should call me early next week. By then I need to make a decision as to which option is most appropriate and start working on my statement. I will be seeking guidance from the IPCC.
At a very broad level, actions I'd like taken are: getting a formal and public apology; obtain the rank, and name if possible, of the officer that decided to arrest me, getting a complete list of all the data and records the Police has on me; get a copy of all that I can have a copy of; have all that can be deleted and expunged, destroyed; get explanations of the inaccuracies and inconsistencies in the little information I got from the police... My motivation is part obtaining reparation and part helping ensure no-one else has to go through the same ordeal, again.
The Investigating Officer mentioned that to get a list all the Police has on me (and I know they have information not listed in the data subject access I obtained) I would need to separately issue a request under the Freedom of Information Act. He also offered to ‘apologise now on behalf of the Police if I feel I was mistreated’. It was a nice gesture, but I am after an apology for the actions of the Police (the unnecessary and possibly unlawful stop and search, arrest, search of my flat, seizure of property, etc.) not for how I feel.
I receive a letter from the Detective Sergeant (DS) that has been appointed to deal with my complaint (on behalf of the Detective Inspector that initially contacted me). The letter confirms that my ‘complaint has been formally recorded’ (on 2006-06-28) and also expresses that they're keen to ‘progress this enquiry in an expeditious manner’. This seems to be very much the case as I got a call on Tuesday and another one this morning to check on my progress.
Following last week's explanations by the Detective Inspector (DI), I got in touch with the IPCC. Unfortunately, the caseworker explained that the IPCC cannot offer guidance on how to proceed in a complaint procedure and suggested I seek legal assistance. Last Sunday I emailed a solicitor firm known for its strong experience with actions against the Police. I got called back on Wednesday by a solicitor who suggested that with all the documentation I had accumulated on this site I could prepare a statement on my own without the need to pay for a solicitor's time. She volunteered very clear explanations on what I need to do. Another really nice and helpful person!
I have decided that a full investigation (option c) is the most appropriate option for my complaint and have started work on a draft statement.
I agree to meet next Wednesday the Detective Constable (DC) taking over from the DS while he's on holidays. As the Internal Investigations Commands (IIC), Directorate of Professional Standards (DPS) of the Metropolitan Police is in Norbury we decide we'll meet up at Southwark Police station instead.
My understanding is that the sole objective of this meeting is to go through my statement. The DC will then start the full investigation and keep both the IPCC and myself informed of the progress of the investigation.
Today marks the first anniversary of the horrific terrorist attacks on the tube and bus system in London. Our thoughts go out to the victims of the atrocity, their families and friends.
Demand a public inquiry into the July 7th 2005 London bombings. If you haven't done so yet, sign the petition. See below for some other suggestions on what you can do.
I arrive at Southwark Police station just before 1pm. The Detective Constable (DC) who arranged the meeting lets me in the restricted zone of the station. We join the Detective Inspector (DI) in charge, who has also made the trip from Norbury, and leads the way to a small room. Both are in plain clothes. I sit across a table from them, take out my statement and exhibits. They had apparently had a look at the draft I published earlier on this website. The DC has in front of him a several centimetres-thick file, presumably related to my case.
The DI asks me if I keep publishing what's happening on my website. He then requests that I do not mention names of Police officers and that I do not write about the investigation while it is ongoing as it may be detrimental to its progress. I agree to his requests.
The DI suggests again that I may want to opt for a local resolution instead of a full investigation. I remain firm as I believe only a full investigation will have a chance to explain all the inconsistencies and inaccuracies of my case, identify any and all illegal actions of the Police and ensure it is visible enough so that other innocent Londoners may be spared similar treatment in similar circumstances. The DI and DC go through the process and provide me with many explanations: e.g., each identified officer will be sent a written notice; they can provide a written reply; if more information is needed they may be interviewed or a statement may be taken under caution. The DI tries to lower my expectations; for example, if their investigation finds my version of events incorrect I would have little chance of obtaining an apology. He also queries whether I really want all the bullet points I included in my statement to be investigated. I keep my statement as is but explain that I'd expect them to be proportionate in their investigation and spend more time on the more damning issues. I still have a right to appeal if I do not find the investigation report acceptable.
Guidance for such investigations suggest they are completed in 120 days starting from the date the complaint is received. I didn't write down the start date mentioned in the discussion, but my complaint was received by the IPCC on 2006-05-31 and by the MPS on 2006-06-28. So it is likely that the investigation will be over by October. I will be kept informed of progress on a monthly basis and the final report will be sent to the IPCC and myself. As mentioned I will not report further on the investigation until after its conclusion.
Eventually I sign all the pages of my statement, give it to the DC who signs it as a witness and the meeting ends. The DC had warned me the meeting could last up to four hours. As I came with a prepared statement, I'm out of the station by 1.40pm!
Apparently LGC, a private company used by the Police to analyse DNA samples, has been building its own mini version of the national DNA database. My DNA sample and or record may be held by this company and used without my consent. My first reaction was to search the public register of data controllers for entries for LGC to find under which purpose they are keeping DNA records and the details of their data controller so that I could send yet another data subject access. I found five entries for LGC and there's also an entry for The Government Chemist, its old name. However, none of these entries have a purpose that covers this DNA database. I emailed the Information Commissioner to query whether LGC is in breach of the Data Protection Act and what should be my next move.
In my statement to the Police I wrote that one of my desired outcome is: ‘7. All that the Police have on me that can be deleted and expunged, destroyed (in particular the DNA samples and the PNC record).’ Last week, the Detective Inspector reminded me that the Police delete DNA records only in exceptional cases and I shouldn't anticipate the exceptional to happen. This is detailed in Appendix 2 of the ACPO's Retention Guidelines for Nominal Records on the Police National Computer, which makes it clear that ‘exceptional cases will by definition be rare’. This week's revelations about what's happening to DNA records captured for the Police shed new light on this part of my statement.
The Detective Sergeant (DS) conducting the investigation into my complaint agrees with the IPCC the terms of references for his investigation. As detailed in a letter, these are a subset of the issues raised in my statement:
‘Following a meeting with the IPCC yesterday, I am now in a position to update you with regards to the 'terms of reference' for the investigation into your complaint. [...] we are unable to deal with every point raised in your statement and that in order to ensure that any inquiry is proportionate and timely we will concentrate our efforts on the main areas of concern.
With a view to this, please see the 'terms of reference' below: -
Terms of reference
To investigate the allegations made by Mr Mery with a view to proving or disproving the following: -
- That his stop, search and subsequent detention were an abuse of authority.
- That he was not issued with a copy of the search record.
- That the s.18 PACE search on his home address was an abuse of authority.
- That statements made by the interviewing officer were incorrect and not supported by the facts.
- That this investigation was not conducted in a professional manner. Specifically that his property was retained for an extended period, for no good reason, he was not served with a bail cancellation notice until some time after the decision had been made to take no further action and that the Police National Computer was not updated in a timely manner.’
Over the last couple of weeks I exchanged a few emails with casework and advice officers at the Information Commissioner's Office (ICO). They explain that ‘from the information available it appears that the LGC provides forensic services to the Police including DNA analysis. As such it is likely that they would constitute a data processor under the Data Protection Act 1998 i.e. they only process personal data under instructions from a data controller which in this case will be the Police Force who has requested them to analyse a DNA sample. As the LGC appears to be a data processor the responsibility for complying with the Data Protection Act 1998 would remain with the Police Force who took a DNA sample from you and it would be the Police Force's register entry that would need to show they process DNA samples.’
This means that if I have concerns about the retention of my DNA sample, which I obviously do, then I should raise it with the Police Force who took the sample. As I explained to the ICO officer the difficulties I had and have to obtain information on what data the Police have on me, they recommend I follow the ICO complaint procedure. I just sent a filled in form. Documentation on when and how to complain as well as the needed forms are available on the ICO website.
An Information Commissioner's Office (ICO) compliance officer sends a very detailed response to my data protection complaint:
‘[...] I should first explain that almost all of the information processed by the police about members of the public is processed by them for the purposes of 'Policing'. This term covers essentially all the things they are empowered and instructed to do by law as a police force. This includes conducting investigations, recording suspects' details and maintaining criminal records on persons convicted. DNA evidence obtained by the MPS from an individual will normally be processed by the force in accordance with the policing purpose. The force is entitled to decide upon the 'weeding policy' by which they choose to retain information. The DNA information they keep cannot be reused for other incompatible purposes irrespective of whom they have decided to employ to look after it for them. I would not consider there to be any more detailed information about your DNA sample likely to be retained by the force that they would be able to provide to you in any intelligible form. Information gathered by the MPS for 'policing' is - under the second Data Protection Principle - required to only be used for policing compatible purposes. The Information Commissioner is aware of no evidence indicating that the MPS are inappropriately giving away DNA information to third parties or are allowing such information to be used for purposes incompatible with the police forces statutory functions. [my emphasis]
The handling of the information processed in the name of the MPS does not have to be done solely by MPS staff. The organisation may choose to employ outside IT contractors, private sector secure information disposal companies, private sector forensic laboratories, or even agency administrative staff. The MPS do not have to obtain people's information to employ such 'third parties' to process personal data. Such contractors fall within the legal definitions of data processors: data processors are in effect an employee of the data controller (MPS). The data controller is required to ensure its data processors process their information suitably securely and do not abuse the information. The data controller does not however have to advise members of the public of their use of data processors nor seek permission for such use. The MPS may employ data processors to work on their information on their behalf and in accordance with the purposes the MPS process the information themselves for, e.g. 'policing'. Organisations are not obliged to list their 'data processors' on their Data Protection Register entry.
From the arrest information you have provided a copy it appears that the force keep DNA information in relation to you. The information includes a DNA sample reference number. The information can continue to be kept as long as it is in accordance with the MPS's 'policing' function and other law. Irrespective of whom the MPS have employed to look after the information for them the information will still be the responsibility of the MPS to ensure its continued security. [...]’
That clarifies the role of LGC and why I couldn't find a relevant purpose in their public register of data controllers entries. I am surprised by the statement I emphasised. As it can be interpreted in several different ways I ask for clarifications:
[...] You mention: "The Information Commissioner is aware of no evidence indicating that the MPS are inappropriately giving away DNA information to third parties or are allowing such information to be used for purposes incompatible with the police forces statutory functions."
Does that mean that Information Commissioner considers the statements published [by] The Observer and GeneWatch to be inaccurate, that none of these have been raised with him, or that it is an appropriate use (which the rest of your reply clearly agrees that it is not)? [...]
Even though the compliance officer mentioned in his previous reply that the ICO is unable to assist me further at this time, he does send another detailed reply addressing to some extent my further requests:
‘Within the information you have provided there was insufficient evidence for this office to take investigatory or enforcement action on the basis of your specific submission and regarding your personal information. This is not to say however that the Information Commissioner is unaware of media reports or does not respond to them when he becomes aware of things. It would be the responsibility of the Chief Officers of Police and the Home Office to ensure that the content of the Police National Computer, including DNA information, are not being reused for unauthorised purposes. It would be the legal obligation of the Chief Police Officers to ensure they have an adequate contract in place with their contractors to prohibit abuse of the information.’
I still don't know if LGC has my DNA record and if it has what it is using it for. Apparently the Information Commissioner cannot state clearly what he's aware of and what is his response when it concern the potential misuse of my DNA – the most personal data of all – and that of many others.
I receive a letter from the Detective Sergeant (DS) conducting the investigation to inform me that it is close to conclusion (I hadn't had any news of the progress of the investigation into my IPCC-supervised complaint for close to three months.) ‘The IPCC [...] will need to satisfy themselves that the terms of reference have been met before [I can] receive a copy of the final report.’
The letter contains a few other details on the investigation but I promised not to write about the investigation while it is ongoing.
To my readers from the Internal Investigations Command, you may want to
bookmark this page or remember that no page on this site ends in .htm.
P.P.S. Here's a list of governmental, intelligence service and military organisations that have visited this site.
I receive a further letter from the Detective Sergeant (DS) conducting the investigation to let me know that:
‘[...] the investigation into your complaint is now complete.
Because the matter is supervised by the IPCC, I have forwarded a copy of the final report and supporting documents to them.
Once the findings have been confirmed you will be provided with a copy of the report.’
The operational details from last month's letter I didn't write about as the investigation was still ongoing, was that the DS had by then ‘interviewed all 5 of the officers concerned and [was] waiting receipt of two further statements’.
Via GeneWatch, I discover Parliamentary answers that make it clear that if my circumstances are not considered exceptional enough, my DNA will be retained until my death: ‘A DNA sample is normally destroyed and the DNA profile derived from it is normally deleted from the national DNA database upon notification of the death of the individual concerned.’ (My PNC record should be deleted when I become 100 years old.)
The Nuffield Council on Bioethics just started a consultation on the ethical issues in the forensic use of bioinformation, such as DNA sampling by the Police. This is a way you can express your concerns. I plan to do so.
According to figures received by Olly Kendall following a Freedom of Information Act (FOI) request, it looks like my arrest was one of ‘11 arrests [in 2005] under legislation other than the Terrorism Act, where the investigation was conducted as a Terrorist Investigation’. ‘266 people were arrested under the Terrorism Act 2000 and Terrorism Act 2006’ during the same period. ‘187 [other CJ arrestees were also] released without charge’; there's no mention of how long they were detained or on bail. There have been ‘8 Terrorism Act convictions to date’. (It is unclear whether this data is for the calendar or the financial year 2005.)
As mentioned in the entry two weeks ago, Andy Burnham (Parliamentary Under-Secretary, Home Office) stated in a written answer dated 18th April 2006: ‘A DNA sample is normally destroyed and the DNA profile derived from it is normally deleted from the national DNA database upon notification of the death of the individual concerned.’ The Association of Chief of Police Officers (ACPO) says otherwise in the DNA Good Practice Manual, Second Edition 2005 it published today:
‘An Arrestee sample should be taken, using a PACE DNA sampling kit, from anyone who is detained at a police station and has been arrested for a recordable offence [...] The profile will not be removed from the NDNAD after the death of the individual.’
Either the retention period has been extended since last April – to eternity – or Andy Burnham or the ACPO is mistaken? So unless the Police exceptionally remove my DNA profile, it will survive me forever. This arrest has a lasting effect.
The DNA Good Practice Manual also includes the following recommendation:
‘The DNA page may show one of the following markers. These indicate the status of any previous samples taken from the individual.
DC DNA confirmed - on the database and a conviction has been achieved DP DNA profiled - on the database DR DNA required - sample to be taken if the individual is in custody DT DNA taken - but not yet profiled DF DNA held in force - not submitted to a laboratory for analysis DS DNA rejected - DM DNA missing - sample not received DD DNA destroyed -
[...] It is essential to update the PNC as to the status of each DNA sample. Some of the markers will be entered or changed by the force and others by the NDNAD.’
The information in my PNC record lists in the ‘DNA REPORT SUMMARY’ section: ‘DNA STATUS :CONFIRMED’ which according to the ACPO table above would indicate that ‘a conviction has been achieved’ contradicting reality and the listed details of the non conviction. I'll wait for the report from the enquiry into my complaint to see if the Police offer to delete this information before looking into getting it corrected.
The IPCC has confirmed the findings of the Police investigation and I should now expect to receive a copy of the report from the Police:
‘As you are aware the IPCC has been supervising the investigation of your complaint of 17 April 2006 concerning the conduct of officers from the Metropolitan Police. I am writing to confirm that the investigation has been completed. The Commission has confirmed that the terms of reference for the investigation have been satisfied and as such the Commission's supervisory responsibility is now at an end.
It is the responsibility of the police to inform you of the findings and outcome of the investigation. You may be aware that you have the right to appeal to the IPCC on certain specified grounds if you are not satisfied with the investigation. Those grounds are:
- You have not been provided with adequate information about the findings of the investigation or the actions the police propose to take (or not to take).
- You have reasons to disagree with the findings of the investigation.
- You have reasons to disagree with the action the police propose to take as a result of the investigation.
If you decide to take up this right, the appeal will be dealt with by a different Commissioner in another part of the country.’
There's one more step, I wasn't aware of. The Detective Sergeant (DS) conducting the investigation writes:
‘You will now be aware that the IPCC have looked at my final report and are satisfied that the terms of reference have been met.
The report and supporting documents have now been passed to our misconduct office. They are responsible for deciding how the matter should be resolved and what action, if any, should be taken against the officers who are subject to this investigation.’
I call the Detective Sergeant (DS) conducting the investigation, the Detective Inspector (DI) answers. He explains, they can't send me a copy of the report until the misconduct office finishes its work, but that they will send me the report at that point. The misconduct office's work apparently takes a few weeks, so I should expect to hear further from the Police at the end of January.
After many edits, I eventually submit my response to the consultation, conducted by the Nuffield Council on Bioethics, on the ethical issues in the forensic use of bioinformation.
I receive a copy of the Investigation Officer's Report, dated 2006-11-02, for the investigation following my complaint to the IPCC. It is 18-page long, protectively marked ‘Restricted’ and composed of an introduction, a summary of investigation, and conclusions and recommendations. (So far I haven't been able to find out how the protective mark ‘Restricted’ limits what I can publish of the report.)
The report is accompanied by a cover letter dated 2007-01-17 written by the Inspector managing this case at the Misconduct Office (I have anonymised all the names of the officers involved):
I refer to your complaint concerning Supt E, PC's R, T, DS Y and DS D and Inspector S, made to Southwark Police Station.
The investigation is now complete and I enclose for your information a copy of the Investigating officer's report. You will see that some parts of the report have been redacted, this is because the information is from police databases and is restricted.
I wish to draw to your attention to paragraphs 108-119 of that report that concludes that there is no case to answer in relation to the stop and search and subsequent detention. I disagree with that conclusion in respect of the arrest. I agree that the stop and search were lawful under that Act but I believe the arrest was unlawful. I agree with all the other conclusions in this report.
In relation to Superintendent E, he has retired from the Metropolitan police Service and no action can be taken against him under the Misconduct Regulations.
PC R appeared to follow instructions from Superintendent E concerning your arrest and it has been decided that he should receive words of advice. code 5 performance of Duties.
PC T failed to issue you personally with a copy of the stop and form [sic]; He is to receive words of advice. Code 5 Performance of duties.
Inspector S authorised a search of your premises under S18 of the Police and Criminal Evidence Act 1984, I agree that this search was unlawful. He is to receive words of advice. Code 4 Abuse of Authority.
DS Y carried out a search of your premises upon instructions from DS D. It is agreed that nor [sic] further action will be taken in relation to him.
DS D failed to conduct this investigation in a professional manner and failed to obey orders from a senior officer. He is to receive a written warning. Code 5 Performance of Duties and Code 6 Lawful Orders.
A written warning will be placed on DS D's personal record for 12 months from the date that it is administered.
You have a right of appeal to the Independent Police Complaints Commission (IPCC) under the Police Reform Act 2002. The appeal process and how an appeal should be made are fully explained in the enclosed IPCC leaflet. The appeal must be made in writing and will need to be made within 28 days of the date of this letter and sent to the Independent Police Complaints Commission, 90 High Holborn, London, WC1V 6BH.
Please be assured that the Metropolitan Police Service is committed to successfully resolving your complaint to your satisfaction.
If I can be of further assistance please contact me on the above telephone number.
I have until 2007-02-14, to decide whether to accept the outcome or to make a written appeal to the IPCC.
I am interviewed for The Files, a Greek television news programme. The filming is done in front of Southwark tube station. Sophia Papaioannou, the reporter asks me to describe the arrest, its long lasting effects and then whether I consider CCTV useful (the use of surveillance camera footage by the Greek Police is currently a controversial topic).
The show is aired on Tuesday 2007-02-06 on Mega TV.
The Section 44 Terrorism Act Standard Operating Procedures state that ‘The National Joint Unit (NJU) must be informed of: [...] any person(s) arrested under different legislation following a stop under the Terrorism Act 2000’, which means there must be some information about me in the database the NJU is using, as well. And this data may not be accurate or up-to-date. The NJU was part of SO12 (Anti-Terrorist Branch), which has been merged into the Counter Terrorism Command so this database must be maintained by the Metropolitan Police Service.
I email the Public Access Office of the MPS to ask for:
I eventually reach the conclusion that I have no option but to appeal. Instead of writing the appeal in the provided form (you don't have to), I attach a letter. This is the letter I brought to the IPCC on my way to work this morning (I have anonymised the Inspector's name, removed the references to the report and the cover letter, and added some hyperlinks):
I am writing to you to appeal the outcome of the IPCC-supervised enquiry into my complaint.
Inspector TT, Case Manager (MPS DPS) writes in her cover letter “I agree that the stop and search were lawful under that Act but I believe the arrest was unlawful” and “I agree that this search was unlawful”.
The arrest being unlawful, the subsequent taking of my fingerprints, palm prints and DNA samples were an assault on my person, the overnight detention was false imprisonment and the search of my flat was illegal.
Considering the seriousness of the Police actions and their long lasting effects, I have no option but to appeal for the outcome to include further actions:
Firstly, consistently with the desired outcome I included in my witness statement, I request the IPCC to demand from the Police:
- They issue a formal and public apology for their actions.
- For my fingerprint and palm print records, my DNA samples and my DNA profile in the NDNAD to all be physically destroyed or electronically deleted.
- For the DNA and fingerprint summary information in the PNC to be deleted (in the PNC extract dated 2006-02-28 I obtained under a data subject access, the DNA status is marked as “confirmed” which, according to the ACPO's DNA Good Practice Manual, wrongfully implies “conviction has been achieved”).
- For a copy of the stop and search form 5090 to be provided.
Secondly, I am concerned by paragraph 172 of the Investigating Officer's Report dated 2006-11-02, which states that there are no learning points for the Force.
Paragraph 116 includes “he did not want this incident to escalate in the way that the incident at Stockwell tube station has”. If the Police sees only two options: arrest or the possibility that of a fatal shooting may occur, some lessons must be learnt to ensure that other options, such as release after the stop and search or after the search of premises or after interview, are given full consideration.
The report shows that at best there has been a great deal of confusion with misinformation and flawed intelligence exchanged between officers to the point where some officers believed my arrest was on suspicion of terrorism while others believed it was for causing public nuisance (hoax), unclear responsibility for urgent processes such as getting CCTV tapes, and a lack of urgency and consideration in dealing with a cleared suspect (even after the apparent sudden urgency caused by the publicity of the Guardian article). Surely the Police can learn lessons to improve some of its policies and processes to hopefully ensure that similar cases are better handled in the future.
I understand that your office is extremely busy, so I have limited my appeal to what I consider are essential outcomes that have so far not been addressed.
An IPCC casework administrator sends a letter the same day:
Thank you for your appeal application of 09 February 2007 asking us to review the decision Metropolitan Police made regarding your complaint against them.
Should you have any further information or documentation in support of your appeal, please send it into me as soon as soon as possible so that it can be taken into consideration when reviewing your appeal.
Please note that the decision made by the IPCC about your appeal is final.
We will be writing to you about your application shortly.
I recently asked the Public Access Office about obtaining a copy of the information that should have been passed to the National Joint Unit (NJU), when I was arrested, to check its accuracy. Eventually, the Public Access Office passed on this request to SO15 (Counter Terrorism Command) where a Detective Inspector provided me with a helpful reply:
What you seem to be asking is this. Did Southwark Police notify the NJU of my arrest on the 28th July 2005 as the published police guidance suggests they should? And if so, can I have a copy of the report so that I check check its accuracy. It is police guidance that says that the NJU should be informed, that isn't the law but simply internal Metropolitan Police policy which ought to be followed.
As will be obvious, our answer has to be that the material you request is exempted under the Act therefore it cannot be supplied whether it exists or not. That said, in the context of your case if it helps to bring this e-mail exchange to an end, I can find no record to confirm that Southwark Police did submit a report to the NJU about your arrest.
As positive a news about what may have ended in their files I'll ever be able to get. This was preceded by a clear explanation of why exempting this specific kind of data from release is beneficial to our security:
Let me try to explain, if someone was to ask 'What information does the Counter Terrorism Command hold about me?' regardless of what that information was, it would almost always be exempt from release or confirmation under the DPA [Data Protection Act] or any other access route (e.g. FOIA [Freedom of Information Act]). You must realise that if information is gathered by the police it is 'for the purpose of the prevention and detection of crime, or in the case of this part of the police often relating to National Security'.
The inevitable answer for this department is therefore to neither Confirm nor Deny whether we hold information. Let me explain why - If a group of men were planning a terrorist attack and they needed to know whether the police were looking at them, following your rationale, they could submit DPA requests and find out what the police held so that they can check that it is held in accordance with Data Protection principles. If the police were to tell the applicant that they didn't hold anything, then the person would know they weren't being looked at. If the police said we do hold something (or provided something) they would know that they were being looked at. As you must realise we can't confirm this one way or the other. That is why the exemptions are entered into the relevant Acts.
On 2005-11-28, I met with Dan Kieran who interviewed me for his book I fought the law. It is published today. The chapter called Britain's Ten Worst Laws, written in conjunction with civil rights campaign group Liberty, opens with this interview.
In other news, last time I called the IPCC, the caseworker said that my appeal would now be decided in weeks.
I receive a letter dated 2007-05-03 from the IPCC with its decision about my appeal:
This letter is about your appeal against the outcome of a police complaints investigation, which we received on 9 February 2007.
After considering all the information available, I have now made a decision about the appeal. I have not upheld your appeal. The reasons for this decision are set out in the attached report. This report sets out our decision against three different issues that, by law, we must consider when deciding on an appeal against a police investigation.
Despite the decision made, we have however requested that the Metropolitan Police Service reconsider your request for your records and samples to be physically destroyed and electronically deleted, and for the summary information in the Police National Computer to be expunged. We have also informed the service that a copy of the Stop and Search form 5090 should be provided to you.
You should now expect the Metropolitan Police Service to contact you regarding the actions that I have asked them to take.
If you have any questions or need more information about this please contact me. However, this decision is final.
This letter is accompanied by an 8-page 'Appeal against investigation: Statement of findings' report.
The next step is to wait for the Metropolitan Police Service to contact the IPCC and myself about this report.
As the IPCC did not uphold my appeal, I email a solicitor for advice.
I send the following email to the IPCC caseworker in charge of the decision about my appeal:
It is now 28 days since your decision. Have the MPS responded to you as to what steps they will take to comply with your requests? If so what is their response, and if they haven't how will you chase them?
For your information I have not been contacted by the MPS and they haven't sent me a copy of the form 5090.
The caseworker replies:
Further to my previous email, I have now spoken with Metropolitan Police Service.
For some reason, the force were not in receipt of my letter dated the 3 May 2007 until last week.
I can confirm that the force are in the process of considering the circumstances presented in this case with a view to physically destroying and electronically deleting any records/samples relating to you, and for the summary information in the PNC to be expunged.
With regards to the 5090 form, I have been informed that it may not be possible to provide you with a copy of this as usually these records are destroyed after 12 months. Nevertheless, the force are making extensive enquiries and I have been informed that they will contact you shortly in this regard.
I have asked to be kept updated as to the progress of their considerations. Should you have any further queries please contact me.
I receive a copy of the Stop and Search form 5090. It is accompanied by a cover letter dated 2007-06-11 from the Detective Sergeant (DS) that investigated my complain. The form states that the stop and search started at 19:40 on 2005-07-28 and lasted for 60 minutes. The grounds are stated as follows:
S44 Terrorism Act. Seen carrying large daysack into underground. Observed on CCTV to fidget with bag. Appeared nervous.
It is interesting to note that there's no mention of how many tube trains passed by. If several trains had passed before I attempted to board one, as the Police repeatedly claimed, I would have expected it to be mentioned on the form 5090.
The details of five other officers (four Police Constables and one Police Sergeant) present, in addition to the one (Police Constable) that filled in the form, are included. The reason for stop is given as 'J – Other' i.e., Section 44(2) of the Terrorism Act 2000, the reason for search as 'D – Offensive weapons' and the outcome code as '4' (I haven't found a table describing the outcome codes yet).
The Police said earlier this month that the form 5090 is part of records usually destroyed after twelve months. The original may indeed have been destroyed as the copy sent to me has been printed from a browser and the two pages are hand marked '79' and '80' so obviously part of a bigger file (likely to be a scan of the file the Police had started when I met them to give them my statement).
The IPCC considers its work in this procedure over. The caseworker in charge of the decision about my appeal writes:
As per my previous email to you, the Metropolitan Police Service have already complied with my requests, in that they have now provided you with a copy of the 5090 form, and that they are currently considering the circumstances presented in this case with a view to physically destroying and electronically deleting any records/samples relating to you, and for the summary information in the PNC to be expunged.
As per my statement of findings, we cannot direct the MPS to do this, but only request that they consider it.
As such, the IPCC's role in relation to this matter is now complete. Any further correspondence or any enquiries about the progression of their considerations should be addressed to the force directly.
As I haven't received confirmation that the MPS is effectively following up on the IPCC's request to considering the circumstances of my case, I ask for further clarification. The caseworker promptly replies:
To clarify, we have asked MPS to confirm the outcome of their considerations to us, i.e. to confirm whether or not they will delete/expunge the records relating to you, as well as confirming the same to yourself.
I can confirm that at present, and as per my previous emails, the MPS is complying with our request and are actively considering the circumstances presented in this case.
After exchanging several emails and phone calls, I eventually meet with Sarah McSherry, Head of Actions against the Police Department at Christian Khan Solicitors.
The Inspector that managed my case at the Misconduct Office sends me a letter dated 2007-08-21 answering the IPCC request:
I apologise for the delay in writing to you but I confirm that it has been agreed that your fingerprints and DNA should be destroyed.
I have sent the file off to the relevant department within the Metropolitan Police Service and await confirmation that this has been completed.
As soon as I have confirmation of this I will contact you. If I can be of further assistance please contact me on the above telephone number.
This is an exceptional procedure for the Police. I write to the Inspector to get some more details about the process in order to have confidence in it:
Many thanks for your letter dated 2007-08-21 confirming that you have taken the decision to destroy my fingerprints and DNA.
I understand that you will get back in touch when you hear further from the relevant department within the Metropolitan Police Service, however I do have a few concerns that I would appreciate you answering prior to effective progress.
Can you please provide me with:
1/ a list of what exactly will be destroyed (DNA samples, …),
2/ a list of what exactly will be deleted (NDNAD entry, IDENT1 entry, …), copies of the entries before deletion,
3/ a list of what exactly will be updated (PNC entry, …) and copies of the entries before and after updating.
I would also appreciate if you could consider for me to be present when the physical samples are destroyed and electronic data deleted and updated. Witnessing this happen would go some way to help restore my confidence in the Metropolitan Police Service dealing with its databases and samples.
The department dealing with ‘exceptional cases’ is the Specialist Crime Directorate (SCD12). They get my earlier letter only after having received instructions from the Misconduct Office's Inspector. I receive a first letter dated 2007-08-30 signed ‘for Commander Operational Information, Intelligence and Training, On behalf of the Commissioner’:
I have considered all the facts of your case and am of the view that you have provided the information, which suggests that your record should be treated as exceptional.
Based upon these facts your fingerprints, DNA samples and PNC record have been destroyed.
This is followed by a letter from the Senior Information Manager dated 2007-09-05:
I can confirm that your fingerprints were destroyed and the entry on the fingerprint database was deleted on 24/07/2007, your DNA sample was destroyed and the entry on the DNA database was deleted on 20/08/2007 and your Police National Computer [PNC] record was deleted on 30/08/2007.
Correspondence from this unit was sent to you on 30/08/2007 confirming that destruction / deletion had taken place; therefore it will not be possible for you to witness this.
As this still does not list the individual actions taken or the specific pieces of information that were deleted or destroyed I enter in an email conversation with the Senior Information Manager requesting the relevant policies describing the processes of destroying bio-information and database records in exceptional cases that were followed in this instance. He sends me two documents that are part of Appendix 2 of Management of Police Information (MoPI) Guidance - Step model - Retention Guidelines (also known as the Retention Guidelines for Nominal Records on the Police National Computer, incorporating the Step Down Model). These describe the process followed to decide if a request for ‘removal of DNA, fingerprints and PNC records’ is for an exceptional enough case to be warranted, and the document makes it clear that ‘exceptional cases will by definition be rare’; last year only 115 such cases were considered exceptional. I explain that the process documents I am interested in are the ones for the steps that follow after a case has been deemed to be exceptional.
My solicitor sends a letter of claim to the Metropolitan Police Directorate of Legal Services. The intended claim is for:
Damages for false imprisonment, assault & battery, trespass and a breach of the Data Protection Act 1998 as a result of the actions and/or omissions of police officers acting in the purported performance of their police functions under the direction and control of the Commissioner of Police for the Metropolis on and after 28 July 2005.
We also request copies of documents that meet the Part 31 disclosure test and request confirmation that all documents of potential relevance to our claim have been maintained and preserved, to include photographic evidence, computer records and audio and visual records. By virtue of the pre-action protocol, the Police have normally three months to investigate and respond to my claim.
The Metropolitan Police sends a letter to my solicitor informing us that:
There is currently no specific pre-action protocol for civil actions against the police. It is therefore our practice to adopt the spirit of the personal injury pre-action protocol.
My solicitor sends a letter to the Metropolitan Police noting that they have failed to respond in accordance with the Protocol Practice Directions. If we do not hear from them by 2008-06-26, we will issue court proceedings.
The police make a Part 36 offer to settle valid for 21 days. They still haven't sent any of the documents we requested.
My solicitor reiterates our request for claimed disclosure and makes a Part 36 counter-offer that would reflect a more genuine interest in compromising this action.
My solicitor sends a letter of claim and a Part 36 offer for my wife as, apart from the distress she had to go through, the search of our flat was conducted at an unreasonable hour, my wife and our flat were photographed, and an officer looked at documents on her laptop.
The police want more time, three months, as they'll treat our claims jointly and haven't yet investigated the section 18 PACE search of the flat as part of my civil claim since it happened when I was in a cell at Walworth police station. They're keen to have a 'roundtable without prejudice meeting'.
My solicitor reiterates once more that we have yet to receive the disclosure of relevant documents, and explains that a 'roundtable without prejudice meeting' would be premature and unproductive.
I am visited by photographer Piero Martinello and video artist Heloisa Sartorato to take some pictures to accompany an article in the Italian multiligual quaterly Colors Magazine. I was interviewed earlier on by journalist Elena Favilli. This magazine issue is about how innocent individuals are affected by counter-terrorism policies around the world.
Issue 75, titled 'Cease-Fear' became available on 2009-03.
After several more letters sent by my solicitors to remind the police that they haven't sent us the relevant documents and haven't responded within the last three months deadline they decided on, they eventually send copies of a series of documents:
As the police have not offered any admission of liability in open correspondence, my solicitor is preparing to issue court proceedings. Counsel sent legal advice on our claims.
To the police avoidance of sending us the documents we request and insistence on meeting up, my solicitors responds: 'In view of the position you have taken, we can only proceed to round table discussions on the assumption that the documents you hold do not support your client’s position and that we will succeed in proving all of our allegations and it is on this basis that we will assess damages.'
A reader points out yet another inconsistency, between: 'Observed on CCTV to fidget with bag. Appeared nervous.' and 'DP is calm on arrival, almost too calm.' The first observation was made when I was stopped and search on the platform of the tube station, and the second observation was made when I was processed at the police station. If I had really been nervous when being stopped and searched, surely I would have been even more nervous once arrested and driven for the first time in my life to a police station. As I never took the rucksack off my back before being asked to do so by the police officers, I couldn't have fidgeted with it. I was calm the whole time.
The police are still very keen to have a 'without prejudice meeting'. They enclose copies of 11 witness typewritten statements 'which are primarily relevant to the circumstances of the stop and search but are also relevant to the basis and circumstances of the arrest.' Nine are from Police Constables and two are from Police Sergeants. Eight are dated from 2005-07-28, two from the 29th and one from the 30th. Only three statements are signed!
The witness statements are of different levels of quality. Some are precise and consistent, some much less so. When a statement lacks details, includes inconsistencies with that of another officer, and the other officer is usually correct, this creates doubts in the observation power, recollection or notes taking of some officers.
Some of the typos appearing in the statements are typical of misreading handwritten notes (or of poor OCR): 'while male' for 'white male', 'other officers were cleaning the platform' for 'other officers were clearing the platform', 'appeared carm' for 'appeared calm', 'imformation' for 'information', 'distreet' for 'discreet', etc. One more serious error is the likely misidentification of an officer. There are several mentions of one shoulder number in the statements for an officer who is not identified otherwise, however there's a witness statement from an officer with a very similar shoulder number; the only difference is one digit being '3' in some instances and '5' in another. This raises question as to what other less obvious mistakes may have happened during the transcription. If the statements had been read and signed, some of these errors should have been caught.
I discover in one of the statements that the infamous Met's Terrestrial Support Group (TSG) was called in: '[The Superintendent] instructs officers to conduct a visual search, for satefty [sic] reasons, the route from the RVP [rendezvous point] situated approx. 200M towards the river in BLACKFRIARS ROAD. Requests TSG reserve to assist with cordons.'
My solicitor points out to the police that 'despite your acknowledgement that you are under a duty to provide them, you continue to refuse to disclose "documents 'material to the key issues' in the claim, i.e. contemporaneous factual records"' In the batch of witness statements recently received, there are no copies of the original statements as they were handwritten in pocket notebooks and statements from other officers involved are missing.
I am interviewed live on the Sky News Sunrise television programme at 08:15. The interview is about my about my experience getting off the National DNA Database and my reaction to the launch of the Home Office consultation on the retention of DNA profiles, DNA samples and fingerprints. This consultation is part of the government's response to comply with the unanimous ruling by the European Court of Human Right condemning 'the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences'.
As the police questioned why we need disclosure of further witness statements and what is our claim, my solicitor sends a letter re-explaining what this is all about:
You again, seek clarification regarding the heads of claim. We are of the view that the letter of claim dated 13 March 2008 could not be clearer in this regard but reiterate that whilst the initial stop of Mr Mery may have been lawful:
- the handcuffing, confinement and removal of Mr Mery to a different place within the station was a deprivation of his liberty in contravention of Article 5 of the European Convention of Human Rights;
- the detention of Mr Mery after the search of his rucksack was completed was unlawful, (hence the importance of the statements of the explosive officers), not being founded upon reasonable suspicion that he committed any offence for which he could lawfully be arrested;
- he was held in police custody for an unreasonable long period of time;
- any use of force on him amounted to assault and battery considering the unlawful nature of his detention;
- likewise, the entry to his home was unlawful and constituted trespass; and
- Due to the inaccurate information which was recorded on the Police National Computer, Mr Mery is entitled to compensation under s13 of the Data Protection Act 1998.
The Metropolitan Police Authority publishes misconduct and complaints proceedings statistics in the Policing London Annual Report 2008/09 (draft): in 2008/09, 504 threatened actions and 132 civil actions were received; there were 89 settled threatened actions, 44 settled civil actions and 0 court awards. The MPS paid £492,808 for settled threatened actions and £723,883 for settled civil actions.
The police make part 36 compensation offers as well as offers of apologies to my wife and I, valid for 21 days.
Following earlier questions from our solicitor, the police confirm that 1. my palm prints would have been destroyed at the same time as my fingerprints; 2. my PNC records was destroyed (by providing a search extract showing there are no entries for my name); 3. all litigation files maintained by the Directorate of Legal Services and relevant files maintained by the Directorate of Professional Standards (DPS) are destroyed after six years; and 4. the photographs of my wife, me and our flat will be destroyed in accordance with 3., and that they refuse to hand them over to us.
My solicitor will proceed to accept the offer and ask again for the original photographs to be returned. She sends a draft apology letter.
The police prefer to write their own apology letter and send us a draft. They are 'not prepared to hand over to the Claimants original documents (in this case, photographs) for the Claimants to destroy.'
We suggest two changes to the draft apology and insist about the photographs:
With regard to the photographs taken during the unlawful search of our clients' home, particularly that of [his wife], we remind you of the recent decision in Wood v The Commissioner of Police for the Metropolis  EWCA Civ 414 where it was held that the interference with Claimant's article 8 right to a private life constituted by the taking and the retention of the photographs was not justified pursuant to article 8(2). Similarly, it is arguable that by virtue of the recent decision in S. and Marper v The UK  ECHR 1581, the continued retention of the photographs is a breach of Article 8. We remind you that [his wife] was not even a suspect in the context of her husband's unlawful arrest.
The police have agreed to our amendments to the letter of apology and are getting it signed. They already sent to my solicitor a cheque and the original photographs they had refused to send so far.
The compensation money appears on my bank account. I make donations to six small organisations that have done a great job supporting individuals and communities, and ensuring we retain some of our human and civil rights.
My wife and I visit our solicitor, and receive the photographs and the signed apology letter. After four years, one month and twenty-six days, the Metropolitan Police Service has apologised to us:
2 September 2009
Mr and Mrs Mery
c/o Christian Khan
5 Gower St
London wc1E 6HA
Dear Mr and Mrs Mery,
Re: David Mery & [my wife's name] - v- The Commissioner of Police of the Metropolis
I would like to apologise on behalf of the Metropolitan Police Service for the circumstances that arose on 28 July 2005 including your unlawful arrest, detention and search of your home. I appreciate this has had a deep and traumatic impact on your lives and I hope that the settlement in this case can bring some closure to this.
I shall ensure that the officers concerned are made aware of the impact of the events of that day and also the details of the settlement in this case.
[signature of Chief Superintendent Wayne Chance]
(The italics are in the original and higlight the two changes we requested.)
On 28th July 2005, I was unlawfully arrested at Southwark tube station when attempting to take the tube after work to meet my wife. Chief Superintendent Wayne Chance, Metropolitan Police Service Borough Commander for Southwark, has eventually apologised to my wife and I for their actions and the trauma it caused us. We are happy to be able eventually to put this behind us.
Just over four years ago, I entered the tube station without looking at the police officers who were standing by the entrance. Two other men entered the station at the same time. My jacket was allegedly too warm for the season. I was carrying a backpack. While waiting for the tube, I looked at people coming on the platform, I played with my mobile phone, I took a piece of paper from inside my jacket.
The police found my behaviour suspicious and instigated a security alert. They surrounded me. They asked me to take off my backpack. They handcuffed me in the back. They closed and cordoned off the tube station. They stopped and searched me under section 44 of the Terrorism Act 2000. They emptied my pockets. They loosened my belt. Explosive officers checked my backpack, gave the all clear and joked about my laptop. The handcuffs were taken off (for a few minutes) and some of the stuff I was carrying in my pockets was given back to me.
This should have been the end of the matter. Instead, an officer informed me “[I] was under arrest on suspicion of causing a Public Nuisance”. They then took me to Walworth police station. They processed me. They took photographs, DNA samples, fingerprints and palm prints. They searched our flat. They interviewed me. Nine hours later I was granted bail. One month later when I surrendered to custody, they said they have decided to take no further action. It takes a further month and half to get my possessions back. Three months after the arrest, the Police National Computer was still listing me as under arrest.
I was arrested for a made up offence most likely in order to justify their having closed the tube station. This unlawful arrest caused further unnecessary expense from public funds and considerable distress to my wife and I. Despite all the available evidence (bar CCTV footage in the station, which the police never seized), investigators from the Met’s Directorate of Professional Standards failed to find that my arrest was unlawful: “there were 'reasonable grounds' to suspect an offence had been committed by Mr Mery and as such the arrest was both lawful and justified”. The intervention of a senior officer was required: “I disagree with that conclusion in respect of the arrest. I agree that the stop and search were lawful under that Act but I believe the arrest was unlawful.” That was still not enough for the police to apologise. The Independent Police Complaint Commission was of no help as “[i]t is not within the remit of the IPCC to direct the Metropolitan Police Service to issue a formal and public apology for their action”.
The police apology will be shown to the officers who were involved in my arrest and the subsequent search of our flat. Being aware of the long term impact of their actions will encourage police officers to realise that arresting innocents is not the only option available to them. Letting innocents go free and safe must be possible and has to be the preferred option. I hope that lessons will be learnt and that in future when mistakes are made they will be acknowledged immediately.
My DNA samples were destroyed and my DNA profile, fingerprints, palm prints and PNC record deleted two years ago. The litigation files maintained by the Directorate of Legal Services and the investigation files compiled by the Directorate of Professional Standards will be retained for a further six years, after which there should be no trace at the Metropolitan Police Service about this innocent.
We are very grateful to Sarah McSherry, Head of Actions against the Police Department at Christian Khan, for her formidable support in achieving this result. We would also like to take this opportunity to express our thanks to the many individuals who encouraged us in this long fight for our rights.
A correspondent, who also went through the process of complaining to the Independent Police Complaint Commission (IPCC), suggested on several occasions that I request my IPCC case file by sending a Data Protection Act subject access request. I followed his advice and sent a request on 2009-11-04. The act specifies that the organisation must respond within forty days, however the IPCC has only two staff dealing with all the Freedom of Information and Data Protection requests they receive, and obviously this means requests can end up delayed. The IPCC press office contact page lists six phone numbers indicating that the budget to manage information they want to make public must be much bigger than that for the department providing information that people do want and ask for.
The request was completed today. I received two bundles of A4 pages each stapled in the top left corner : one approximately 21 mm thick of 'documents received by the IPCC from the Metropolitan Police Service', and the other, 16 mm thick, composed of IPCC correspondence and some more MPS documents. The cover letters explain that these are all the documents that 'you are entitled to receive under the provisions of the Data Protection Act contained in your IPCC case'. 'The documents have been redacted under section 7(4)(a) of the Data Protection Act' and documents containing legal advice are not included as 'these documents are exempt from disclosure under schedule 7 paragraph 10 of the Data Protection Act 1988.' The amount of redactions means someone must have spent days blacking out the documents. Some of the redactions are over-zealous. For instance some of the questions the officer who conducted the search of our flat asked my wife are redacted in his witness statement but included in the copy of his scene notes. There are no page completely blacked out, but there are pages obviously missing, possibly because they've been entirely redacted.
Many documents I had not seen. Some make for very interesting reading, especially the statements my solicitor tried to obtain in vain during our civil action against the police. Here are a couple of highlights spotted in the little time I've spent so far browsing through.
Below are a few extracts from the statement of a DS. This transcript is 49-long with page 1 and 49 missing.
[...] get a phone call to say man coming in for terrorism, suspected terrorism. [...] He's been arrested for public nuisance, I said 'he should be arrested for terrorism then'. I was told that the Superintendent doesn't want terrorism on the custody record in case it frightens people. Go in there, see the fella standing at the counter speaking to the PS, officers are giving the facts for public nuisance, custody officer accepts the facts, my remit was is this man a terrorist. It was said to me then that Mr Mery should have his clothing taken, white suit and hands bagged, all the things, I said 'he needs to be arrested for terrorism then'. [...]
Uniformed officers who brought the prisoner back, they told me that this was the case and he was a suspected terrorist and they were using public nuisance to bring him in. [...]
I was told by uniformed officers who briefed me that that's what we should be doing [seizing clothing] and I said 'well let's arrest him for terrorism, take him to Paddington Green and call out SO13 [the Anti-Terrorist Branch]'. They said the Superintendent doesn't want that, so I said, I made the decision, 'well we're not seizing his clothing, [some words redacted] If they had been interested in him, they would then have said, 'let's go'. Soon he was brought in, done that, placed in a cell. [Rest of paragraph redacted]
That's the first time I realise how close I have been to have been bundled up to Paddington Green police station. Another statement below, worth retyping in full, shows that during the IPCC supervised enquiry, the Met fully realised their errors. Unfortunately the investigation report did not acknowledge these findings, necessitating two more years of fighting before eventually getting a formal apology.
Statement of [redacted]
Police Officer [redacted]
Date: [missing, but most likely end of 2006 during investigation by the the Met's Directorate of Professional Standards]
I have been asked to review the custody record and CRIS reports relating to the arrest of David Mery on the 28th of July 2005.
Opened by PS T.
The reason for arrest is given as 'Causing a public nuisance. Caused a major evacuation of three mainline railway stations after his deliberate actions caused police to believe he had explosives'. This is not borne out by any of the evidence presented by the officers. There are grounds for stop and search but I can see nothing to substantiate the deliberate actions, the closure of the underground network and evacuation were the decision of the police and not caused by the suspect.
The legal database quotes the offence as: -
A person is guilty of the offence if he/she
(a) Does an act not warranted by law, or
(b) omits to discharge a legal duty,
The reason for detention is given as to obtain evidence by questioning.
Item 2 on the front page indicates that Mr Mery made no comment when the facts of arrest were explained, however the first entry in the custody log of events at 21:08 is a comment made by Mr Mery. This has been correctly endorsed and signed.
The second entry is timed 21:53 stating that Mr Mery arrives in custody handcuffed, there is no explanation for the time gap between these two entries but it may be that all of the normal booking in procedures were completed before this entry was made.
A request for someone to be informed of his arrest is recorded at 21:53 and given at 22:09.
At 23:00 Inspector L authorises a Section 18 PACE search of the home address, I cannot read the handwriting giving the grounds or nature of the evidence sought. S.18 PACE gives police the power to search for evidence relating to that offence or a similar offence, as the suspect had aroused suspicion by his dress and demeanour it is hard to understand what further evidence could be obtained from a search. Also the only reason recorded for his detention was to interview.
The first review of detention was due at 02:57 but was not carried out until 04:20 with no explanation as to why it was delayed, but as interview started at 03:06 this could be the reason.
At 04:27 Mr Mery was released on bail to return on the 31st August 2005 at 09:00, the reason given on the circumstances page was 'Forensic checks on his computers and CCTV needs to be viewed'
There is no mention on the custody record of what happened on the 31st August 2005 when Mr Mery was due to return to answer his bail. The custody record should have been updated with details of a rebail or disposal.
The activity log does not show anything for the day.
[3 paragraphs redacted] There is no record that any of Mr Mery's property has been restored to him. It would appear from the nature of the items marked that they were restored to Mr Mery on his release on the 29th July 2005 [they were restored on 2005-10-13].
[3 paragraphs redacted] the OIC [officer in charge] must complete form 60C bail cancellation notice and send it to the Mr Mery. OIC should also inform the custody officer of the decision so that they can close the record. According to the custody record activity log none of these things happened until the 5th of October 2005 when the custody record was opened and the bail record cancelled. On the 13th October 2005 the form 60C was printed along with the property sheets 57G and H.
[1 line redacted]
The circumstances of finding states that the items were "Left at above location following call to suspect package and susp person" The above location being Southwark LT [London Tube] station. This is completely at odds with the evidence provided by the arresting officer who states that an officer removed the rucksack from Mr Mery and then moved it away from him in the underground station.
CRIS [Crime Report Information System] REPORT 3029675/05
The allegation is recorded as 'Bomb Hoax' this is incorrect and should have been corrected. A bomb hoax requires the dispatch or placing of an article or communication of false information, none of these things happened. Mr Mery was arrested for causing a public nuisance, not causing a bomb hoax.
The crime is screened in as a suspect has been arrested but then the report is "No crimed" the next day with no reason given, the no crime is confirmed on the 5th of August 2005.
The method shown on the classification page is "The suspect evaded officers at an underground station, causing a major terrorist incident alert. Thus causing a public nuisance" this is misleading and not borne out by any of the evidence provided. [Entering a closed space, such as a tube station, with lots of police officers around, but not looking at them is 'evading officers'!]
DS B records the results of the S.18 PACE search and the interview of Mr Mery following a briefing from DS W. He notes that there was no evidence visible of causing a public nuisance but the computers will have to be examined. He also records the fact that Mr Mery was bailed to 31st August 2005 so that the computers and CCTV could be examined.
Although DS W was assigned the case at the time of arrest on the 28th July 2005 the CRIS was not allocated to him until 28th September 2005 and he did not acknowledged this until the 4th of October 2005.
[1 paragraph redacted]
In light of this and the account given in the interview he believes that Mr Mery's action do not amount to an offence, he considers this suitable for no further action [NFA]. This has been discussed with DI C.
There's no separate entry from DI C confirming the NFA authorisation.
There's no mention of any forensic analysis of the various items of computer equipment that were seized from Mr Mery nor of the viewing or seizure of the CCTV evidence from Southwark Underground station, both of which were given as the reason for Mr Mery bail to return.
There's no mention of what happened on the 31st of August when Mr Mery returned on bail.
On the 14th of October DS W makes an entry in the DETS [‘Details of the Investigation” section of a crime report] page to show that Mr Mery has attended with his legal rep and has had his property restored. There is no record of the property being restored or signed for on the custody record property receipts.
[1 line redacted]
Observations conducted in the CCTV control room were very important in forming the suspicion that led to the stop and search and then arrest of Mr Mery.
[2 paragraphs redacted]
In my opinion Mr Mery's actions at the underground station were reasonable grounds for the stop and search of him and his bag. The fact that officers at the scene made the decision to elevate this to a full evacuation and closure of the rail network in order to have the bag examined by explosive officers was one for them and should have been recorded elsewhere.
I do not feel that the court would accept that to walk into the tube station as a dark skinned male wearing a baseball cap and a heavy jacket carrying a rucksack and stand on the platform would constitute an unlawful act. The reaction of the police officers caused the disruption to the public and is understandable in the circumstances; to make it the fault of Mr Mery is not.
Given that the reason for detention was to obtain evidence by interview this should have been done as soon as possible so that Mr Mery could account for his actions that were observed.
There is no mention as to what evidence it was hoped would be obtained from the forensic analysis of the various items of computer equipment seized from Mr Mery and his home address, however it is at odds with the fact that it appears that a USB memory stick and an I-Pod were restored to him on his release without being submitted for forensic examination, both being large digital memory storage devices.
None of the property on the custody record has been signed for when restored either at bail stage or at the finalisation of the case.
[1 line redacted]
The CRIS report should not have been no crimed as there was a suspect on bail and further lines of enquiry had been identified.
[2 paragraphs redacted] before Mr Mery was due to return to answer his bail.
[2 paragraphs redacted]. Having decided to NFA the matter Mr Mery should have been informed of his bail being cancelled [several words redacted] NFA letter to inform him of the reason and to arrange for the restoration of his property. [Rest of this paragraph redacted]
The custody record should have been opened on the 31st of August 2005 to record what happened and whether a new bail date was set or the case the case is NFA'd. From Mr Mery's statement he was told on the 31st August 2005 that the matter was NFA's but no paperwork was served nor was the custody record updated.
[emphasis added; name of the officers anonymised; some obvious typos corrected when retyping this statement, some possibly added]
Other threads apparent in these documents include the news that, though the Met claims never to have obtained the CCTV footage, the British Transport Police did request it the next day (I never received a substantive answer to the subject access request I sent them on 2005-08-31); how my normal usual behaviour, termed 'eccentric' by one officer, is what many couldn't accept as normal and hence had to be suspicious; how some of the police actions and decisions appear to be media-driven... Topics to be explored further on the blog.
The IPCC still has to inform me on its retention policy, i.e., when my case file will eventually be deleted.
I meet the Head of Casework and Customer Services, London and South East, at the Independent Police Complaints Commission (IPCC), who informs me that the IPCC has a seven year retention policy. This means the documents related to my IPCC complaint will be destroyed in 2014.
Two months ago I queried why no page was completely blacked out in the documents obtained from the IPCC through my subject access request and why some pages were obviously missing. I suggested the possibility that entirely redacted pages might not be included, though keeping black out pages would give greater confidence to the recipient that nothing is missing. My guess was correct: if no information at all on a page can be communicated, the page is not included. This happens when a page contains only personal information about someone else or legally privileged information. As several instances of faxes have the first page missing, it is also possible that fax cover pages are not kept in the IPCC's computer system.
Before attending the meeting I had marked the many instances where the numbering present showed missing pages. I leave these documents with the IPCC and in the next couple of weeks staff will check that these missing pages were not included for valid reasons. In some cases it is likely to be the case, however it is difficult to see how pages missing in witness statements of officers would fit any of the valid reasons to be excluded.
Another reason for meeting up was to discuss joining the IPCC London Community Advisory Group, an independent group that meets quarterly to advise the IPCC on strategic community matters.
The 'review of the undisclosed information has been completed' by the Independent Police Complaints Commission (IPCC). I collect the new disclosures and the two bundles of already disclosed information I had left with them. The new bundle is 10mm thick. With the already disclosed information, this adds up to 47mm thick of single side printed A4 paper.
After inserting the additional disclosures in the original two bundles, I discover that pages are still missing. Having to check and go back to the IPCC until all the disclosures I am entitled to are eventually released is an inefficient time-consuming process for both the IPCC and myself.
The Independent Police Complaints Commission (IPCC) freedom of information officer wrote:
The sequence may appear out of sync because the bundle of documents were given to you in the order they were received; I decided not to alter your case file order as I assumed this may have confused matters even further.
However in the interests of allaying your concerns I have decided the best course of action is to simply provide you with all the information you have listed again, omitting of course any information which is not your personal data, namely pages 16-20 from the section marked 'Documents received by the IPCC'. This measure is being carried so as to remove any possible doubt that we have not provided you with the correct information which we hold on file for you.
I collect yet another bundle. Seventeen pages (excluding the five explicitly omitted ones) are still missing.
I collect from the Independent Police Complaints Commission (IPCC) the last remaining pages I noticed were missing from the disclosed information. My whole IPCC case file ends up being 60mm thick. The first delivery was only 37mm thick. Obviously a signifiant amount of information was initially missing. (I've kept a few duplicated pages when they were provided both with paragraphs redacted and in full.)
Among the mass of documents collected by the Independent Police Complaint Commission (IPCC) during the investigation it supervised, I noticed the following paragraph on a page titled 'Meeting at IPCC on 25 July 2006':
CCTV has gone missing or was not seized. Log shows that CCTV seized by BTP [British Transport Police] on 29/7[/2005]. [Detective Inspector] DI P is in the process of trying to establish whether this was OBO the Met.
I had tried in August 2005 – without success – to get a copy of the CCTV footage of my unlawful detention in Southward tube station, from the Metropolitan Police, the British Transport Police (BTP) and Transport for London. According to the paragraph above, there is a chance the footage is still held by the BTP, so I send a subject access request to the Data Protection Registrar of the BTP.
A Data Protection Officer from the Information Standards Unit of the British Transport Police (BTP) explains they do not have the CCTV footage:
I am writing in response to your request for CCTV footage regarding an incident that took place on 28 July 2005.
I have made enquiries and have been informed that British Transport Police (BTP) do not hold the requested CCTV footage. The footage may have been requested by BTP from Transport for London but it would subsequently have been handed over to the Metropolitan Police as part of their investigation.
Unfortunately I do not have any information regarding a hand over of CCTV footage from MTP [sic, obviously BTP] to the Met Police and am only surmising a possible reason for why we do not hold the requested information.
Even though 'Observations conducted in the CCTV control room were very important in forming the suspicion that led to the stop and search and then arrest of Mr Mery', the IPCC-supervised investigation established that the Metropolitan police officer in charge failed to seize the CCTV footage. I reply explaining that a hand over never happened and hence couldn't be the reason they don't have the footage. I further ask for a confirmation of how and when the BTP stopped holding this CCTV footage, and the BTP retention period policy for CCTV footage. The Data Protection Officer sends the following email:
As mentioned I could not locate any information regarding the holding and retention of the footage. The retention period for holding data is usually 6 years.
We are still within BTP's six year retention period for CCTV footage, but they do not have it or any record about where it might have gone.
As the seven year retention period for my Independent Police Complaint Commission case file is soon coming to an end, I had written to the IPCC to request to witness the destruction of any paper version and the deletion of any electronic version of my case file. The IPCC Records & Archives Manager replied:
Thank you for your email of 24th March regarding the deletion and destruction of the file relating to your case. Your file will be reviewed in June as the date of the last correspondence that we have with you is 19th June 2007.
Unfortunately, it is not possible for you to witness either the destruction of the hard copy file or deletion of the electronic file but we will send you confirmation of their destruction once this has been done.
At a time when the IPCC (and the police) are trying to regain the trust of the public, it is disappointing that my request cannot be accommodated. I asked for the confirmation to list all pieces of information either deleted or destroyed.
The complaint files maintained by Independent Police Complaint Commission's are due to be destroyed. The IPCC has a seven year retention policy and its letter informing of the decision not to uphold my appeal, closing the complaint, was dated 2007-05-03, however the last correspondence from the caseworker was dated 2007-06-19.
The Independent Police Complaint Commission's Records & Archives Manager wrote:
I am pleased to confirm that the documents held in the electronic file of your case were deleted yesterday morning. I confirm that four paper files were also destroyed at the same time.
I attach a spreadsheet detailing the electronic documents that were deleted. I am unable to list the contents of the paper files as we do not maintain an index of each paper document destroyed, only the fact that the file has been destroyed. Included in the spreadsheet is reference to the destruction of the 4 paper files.
The attached spreadsheet listed the creation date, record number, title and container title (the case reference number) of 32 electronic documents that had just been deleted and the box numbers of the four paper files that had been destroyed.
I found it difficult to verify whether the spreadsheet listed all the documents I knew the Independent Police Complaint Commission (IPCC) held. Some of the dates did not match that of the documents I had obtained with a subject access request and most of the documents I had did not have titles. I was concerned that the IPCC might still be retaining some documents and requested a review of the deletion process. The IPCC's Records & Archives Manager explained:
In 2006 the use of a Electronic Document Records Management System (EDRMS) was in its infancy at the IPCC. At this time the majority of information was filed in paper files. Your case was allocated a case number 2006/007520 and documents for your case, whether in electronic or hard copy format, were filed against this number. The whereabouts of paper files were also recorded onto the EDRMS.
Electronic documents were either scanned or saved directly to the case file and dated with the date that they were added to the system, not the date of the document. As an example of this, the document cited in your email "Final Report Minute - Supervised Investigation' from the Casework Manager to the Commissioner dated 23/11/2006," is shown on line 18 in the spreadsheet as FR minute and dated 4 December 2006.
There were four paper files allocated to your case file number, these were files of some substance I am unable to say what documents were contained in the files as they have now been destroyed.
Following receipt of your email, I have carried out a search on the EDRMS which reveals that there are no electronic or paper files still in existence for this case.
Although all documentation is filed to the appropriate case file, in order to allay your concern that some documents have been inadvertently retained, I have spoken to the casework manager who had conduct of your case and to the commission secretariat to ensure that they have no documents relating to your case in their possession. In both cases they confirmed that they do not have any documents.
I am therefore able to confirm that all documents relating to your case have been destroyed in accordance with our retention policy.
And added a week later:
I did carry out some searches using variances of both your name and the case number. These were done both on my initial search and the further search carried out last week.
As the litigation files maintained by the Directorate of Legal Services and the investigation files maintained by the Directorate of Professional Standards are due to be destroyed soon (The Metropolitan Police Service have a six year retention policy and their apology letter was dated 2009-09-02) I send a subject access request to the Metropolitan Police Service.
I ask them:
All the personal data held by the MPS about me, in particular:
- the case file L27086/RAB (your latest ref) archived from the Directorate of Legal Services. This case was finished on 02.09.2009. I would also appreciate to be informed of the process to witness the destruction of this file which is due on 02.09.2015 as the retention policy is of six years.
- any personal data gathered or held by the NDEDIU.
- any other personal data gathered or held by the MPS.
Ten years ago I was unlawfully arrested when attempting to take the tube after work. The police noticed that my behaviour was different, found it suspicious and decided I must be a terrorist. In the book Being Autistic – Nine adults share their journeys from discovery to acceptance I explore this difference:
[...] The diagnosis also helped me to reinterpret some traumatic experiences. It has made me realise that when police officers had found my behaviour suspicious, it was because of how they had interpreted some of my typical autistic behaviour, such as a lack of eye contact with them (i.e., I was ‘avoiding them’) and how I was dealing with the sensory-rich environment of the tube station. When I was made to wait in the entrance of the station before being led to a police van, some station’s alarms were ringing; I am hypersensitive to sound, but as my hands were still handcuffed I could not block my ears. When I was eventually processed, the custody sergeant found me ‘calm on arrival [at the police station], almost too calm’ and as a consequence I was ‘placed in a video cell on half hourly checks’. Again, my behaviour was found to be atypical.
During the police interview, some questions about my laptop, such as ‘has it got anything on there about plans for any terrorism act?’ and ‘has it got anything on there that might be construed as causing a public nuisance?’, particularly bothered me. The correct answers would have been ‘yes’ as I have a word processor, an email client, etc. that could all be useful to a terrorist and most likely can be construed to be of use for anything including causing a public nuisance, however, I realised that such answers would not have been been helpful to me and challenged the questions when the investigating officer just wanted answers.
Since the arrest I have become alcohol and fructose intolerant and I suspect this was a reaction to the stress. Policing in London and what happens to innocent individuals when they encounter the police became one of my special interests and I have researched, written and campaigned on civil and human rights issues such as the National DNA Database and the stop and search powers.
A year after my diagnosis, I publicly ‘outed’ myself and started some autism activism: I sent a contribution to a Home Affairs Committee inquiry into policing and mental health calling for police officers to realise that an atypical behaviour can be just different rather than suspicious; to consider hyper- and hypo-sensitivities that individuals may have; and to use clearer interviewing questions. [...]
This was the date I understood the litigation files maintained by the Directorate of Legal Services and the investigation files maintained by the Directorate of Professional Standards were due to be destroyed. The Metropolitan Police Service had written they have a six year retention policy and their apology letter was dated 2009-09-02.
I receive the following letter from an MPS Privacy Assistant for Data Protection Officer in response to my subject access request:
DATA PROTECTION ACT 1998 - SUBJECT ACCESS
I refer to your application form in which you requested information under the above Act that may be held about you by the Metropolitan Police Service (MPS).
I apologise for the delay in processing your request and for any inconvenience caused.
The Data Protection Act places an obligation on the MPS to provide you with a copy of that information, unless disclosing such data would be likely to prejudice the prevention and detection of crime and/or the apprehension or prosecution of offenders.
From the personal details supplied in your request, the information the Commissioner is required to supply you with is enclosed.
A detailed search was carded out by the NDEU department, from the personal details supplied in your request, there is no information the Commissioner is required to supply you.
You may wish to know that under the Act, the data supplied is held by the MPS under the 'Standard Police Notification' for the Purpose of Policing.
Any information held that can identify a third party, or that you are otherwise not entitled to, has been edited out.
As confirmed to you in the correspondence between us, there will be no physical attendance to witness the destruction of your file once it has reached the end of its retention period, rather a letter can be sent to you confirming its destruction.
The minimum retention period for the Metropolitan at large is 7 years. Records management have confirmed that your file will reach its 7 year retention period next year 2016. At present a date has not be set for the destruction.
The reason behind is due to the circumstances of the casefile. Therefore the file might be kept longer than the normal 7 years.
Please note this letter cannot be used as a certificate of good character. If you consider the information to be incorrect please write to the above address, stating your concerns clearly and concisely.
After repeated requests for clarifications of the response to my subject access request and a frustrating internal review I eventually file a complaint with the Information Commissioner’s Office. Note that I have redacted the names of individuals mentioned.
I was unlawfully arrested by the Metropolitan Police Service (MPS) on 2005-07-28. We eventually reached a settlement and the MPS sent an apology letter dated 2009-09-02. This means that the retention period for the documents related to this case held by the MPS started on 2009-09-02. These are agreed facts.
Where there’s confusion is about the length of the retention period and whether I can witness the destruction/deletion of the files.
I have repeatedly asked for clarification to Ms A[redacted] who has been dealing with my SAR and followed this with requesting an internal review conducted by Ms H[redacted] who stopped corresponding on 2015-12-16 even though I responded on 2015-12-20 and sent a reminder on 2016-02-09 (all this correspondence is in attachment ‘d’) so unfortunately I have no other option than to raise this complain.
On 2009-07-27, R[redacted] B[redacted], MPS Directorate of Legal Services (DLS) wrote ‘All litigation files maintained by the Directorate of Legal Services are not kept for longer than 6 years. Then they are destroyed. The same is true of relevant DPS files’ (attachment ‘e’) so I expected all the documents held by the MPS DLS would be destroyed or deleted on 2015-09-02.
The Information Rights Unit has disregarded what was written to me by the MPS DLS and instead reported information they get from their Records Management unit that ‘[t]he minimum retention period for the Metropolitan at large is 7 years.’ (attachement ‘c’). Even though there is an admission that ‘[t]he file is the MPS property’ (email #10 in attachment ‘e’) and not of one of its specific department there’s an expectation that I should understand how each MPS department work together and which retention rule applies. I should not have to figure out the internal organisation of the MPS and a written letter from one of its departments should not be ignored by the Information Rights department.
Furthermore, the retention policy linked to by Ms A[redacted] (attachment ‘f’) appears to support what was initially written by the MPS DLS: 'As this civil action did not go to court doesn’t it fit in the 'Group 4 Subset 10: Complaints investigated internally’ for which the action is 'Retain for 6 years after last action’?’ (email #7 in attachment ‘d’).
To complicate things further, this changing retention period may not be honoured at all anyway as Ms A[redacted] wrote (attachment ‘c’): 'The reason behind is due to the circumstances of the casefile. Therefore the file might be kept longer than the normal 7 years.’ and in email 13 (attachment ‘d’): 'the retention period might be longer than the 7 years period due to the profile of the case.’ Even though the Department of Legal Services needed to retain my file only for six years and hence no longer needs it, so my file is currently being retained when no longer necessary. How can Records Management through the Information Rights Unit justify their additional retention demands when they are not supported by the MPS retention policy document nor by DLS needs.
Regarding witnessing the destruction/deletion of these records, it is claimed it is not possible as I didn’t ask for it in 2009 (email #10 in attachment ‘d’)! I indeed didn’t have that foresight, but I’m asking for it when there’s enough time to do so, so refusing because this was not promised by the DLS when at the same time the Information Rights department ignores the promised retention period stated by the DLS is ironic to say the lest.
I am looking for clarification on when exactly the documents held will be deleted, the circumstances into why the MPS might hold these records in excess of any of their stated retention periods and by how much longer, why the retention period stated by MPS DLS may not apply (and why I should start to be more trusting of the retention period from another department if that one has been ignored), and why the claimed retention period does not appear consistent with the MPS own retention policy rules. I am also keen to witness the destruction/deletion of these documents when it eventually happens, especially as my trust in the MPS is not enhanced by the way it has been dealing with this SAR.
a) The ICO form: information-handling-form.pdf [part of the ICO Report a concern webpage]
b) The MPS SAR form I sent in: 2015-06-26 Form_3019-(2015)_DM.pdf
c) The initial response by letter: 2015-09-03 MPS [redacted].pdf
d) The email correspondence about this SAR: MPS SAR 2015070000402 correspondence.pdf
e) The letter from the MPS Directorate of Legal Services stating a retention period of six years: 2009-07-28 MPS DLS.pdf
f) The policy file linked to by [redacted] in email #6: rmb_review_retention_disposal2014.pdf
The Information Commissioner's Office's case officer assigned to my case sent an interim response:
Case Reference Number RFA0620683
Dear Mr Mery
Thank you for the data protection concern you raised about the Metropolitan Police Service (“MPS”) and the way is has processed your personal data.
Concerns raised with the Information Commissioner’s Office
Our aim is to improve information rights practices. We do this by taking an overview of all concerns that are raised about an organisation with a view to improving its compliance with the Data Protection Act 1998 (‘the DPA’).
We cannot look into every concern we receive. We will put most of our effort into dealing with matters we think give us the best opportunity to make a significant difference to an organisation’s information rights practices.
Depending on the circumstances, we may give an organisation advice about handling personal information, provide guidance, or ask it to review its procedures.
Please see our website for further information: https://ico.org.uk/about-the-ico/our-information/service-standards/
Concern raised with us
You are concerned about the retention of your personal data on MPS’ records. You would like to witness the destruction of your records, but you have not received a confirmation from the MPS about this. I also note a delay in the MPS’ response to the subject access request (“SAR”) you submitted.
In this case, the matters raised that are relevant to the DPA relate to the fifth and sixth data protection principles.
The fifth principle of the DPA says that “personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”
It would be impractical for the DPA to be able to give specific retention periods for every type of organisation that must comply with the DPA. Therefore the fifth principle means in practice that once it is no longer necessary for a data controller to retain data collected for a particular purpose, they should take the appropriate steps to dispose of it.
The DPA does not define how long is ‘necessary’. However the fifth principle implies that only in exceptional circumstances should data be kept indefinitely. In order to comply with the principle, the data controller should have a system for the removal of different categories of data from their system after certain periods. E.g.: when a statutory period for holding certain data has come to an end.
The sixth principle of the DPA says that personal information must be processed in accordance with the data subject’s rights.
One of the rights that the DPA gives people is the right of ‘subject access’. The right of subject access means that a data subject can make a request under section 7 of the DPA to any data controller processing their personal data, asking to be supplied with copies of that data.
What we will do now
The right of a data subject to witness the destruction of their personal data which is held by a data controller is not a provision that is made within the DPA. This is therefore not a relevant concern under the DPA and I am unable to make an assessment on this matter.
However, in relation to the other concern you have raised about the retention of your personal data, we will write to the MPS to ask:
- what happened in this case;
- what it has done (or intends to do) to put the matter right; and
- what safeguards it has in place to help ensure it handles personal data properly.
We will ask it to respond within 28 days.
What will happen next
When we receive MPS’ response, we will decide:
- whether it is likely or unlikely that it has complied with the DPA in this case; and
- whether we think that further action is appropriate at this point.
You should be aware that we cannot award you compensation if an organisation has failed to comply with the DPA. However we may ask it to change the way it works in the future. We encourage all organisations to take steps to solve problems and to demonstrate to us that they take their responsibilities under the DPA seriously.
If there is anything you would like to discuss, please contact me on the number below.
Once we have all of the information that we need we will write to you again to explain our decision.
The Information Commissioner's Office's case officer assigned to my case informs me ‘that there has been a delay in receiving a response from the Metropolitan Police Service ("MPS") in relation to the data protection concerns you have raised.’ and that she ‘will be in contact again when I have received a response from the MPS.’
[To be continued...] Case closed.
Some of the feedback I received asked for recommendations as to what one can do to halt and reverse the erosion of our civil liberties. Only you can decide how important this is for yourself and what level of commitment you want to make. Here are a few suggestions: