In December 2008, the European Court of Human Rights (ECtHR) found the UK was was in breach of the human rights of innocents when keeping their DNA and associated records. For the million or so innocents on the National DNA Database, the situation is still the same. Police and the courts can ignore the ECtHR ruling. To get off the DNA database, innocents have to follow the exceptional case procedure with limited chance of success. New legislation, which may eventually put an end to the breach and prevent any further violation in the future, is now scheduled for late 2011.
Two years ago, a unanimous grand jury at the ECtHR concluded:
[T]he Court finds that 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 applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.
This judgement was final and the UK must abide by ECtHR judgements by (as succinctly put by the Joint Committee on Human Rights):
The previous government dealt immediately with the obligations of reparation and to make just satisfaction, but there still has been no effective progress on the obligations of cessation and non-repetition. For some more details about these obligations see Don't delay: Delete your DNA today. For more on the previous government's response see Home Office still wants your DNA profile, and your PNC record; its last proposals received royal assent in the Crime and Security Act 2010 but none have come into force.
The current government promised it will follow the Scottish approach (explained in Adopting the Scottish approach to DNA retention) to change the rules for DNA retention.
Domestic law unchanged until changed
A recently-published High Court ruling from July ([2010] EWHC 2225 (Admin)) explored whether the police and courts are bound by the Strasbourg ruling or whether they should follow the earlier House of Lords ruling:
It is contended that the continuation of the policy upheld in the House of Lords but successfully impugned in Strasbourg is itself proportionate and legitimate. That temporary maintenance of the policy, so it is contended, affords a legitimate period of time in which the domestic law can be changed. But as the claimants point out, neither the Commissioner nor the Secretary of State as members of the executive can speak for the legislature. There can be no certainty as to when or what, or even whether legislation will be passed or, if it is passed, what it will contain by way of measures relevant to the retention of biometric samples and the time during which those samples can be held. This case must be judged, so the claimants contend, on the basis of the policy as it has been applied to them. Certainly, this case must be judged in the light of the question as to whether the decision of the House of Lords binds this court in the conclusion it reaches.
Lord Justice Moses ruled that 'this court is bound by the decision of the House of Lords. The doctrine of precedent and the legal certainty which that doctrine protects demands that this court follows the decision in S and Marper.' Until something changes domestically, nothing changes for all those on the DNA database.
Chief constables have continued to follow the Association of Chief of Police Officers (ACPO) guidance about DNA retention, the 'exceptional case procedure', which applied before the decision of the ECtHR. Chief constables will continue to do so until new legislation is introduced. A flow chart illustrating how a case is deemed exceptional is included in Innocents are exceptional.
Lord Justice Moses granted permission to appeal directly to the Supreme Court. In the ruling he has 'not expressed any view on the underlying merits' and the outcome of the case when it goes back to the House Lords (now the Supreme Court) is 'far from a foregone conclusion':
No one can properly predict the conclusion that the Supreme Court might reach. It is far from a foregone conclusion. In particular the Supreme Court will have to consider the relevance of the government's contention that continuing the policy at the moment is merely temporary, pending the introduction of new legislation, which will take into account the decision of the European Court of Human Rights and their contention that time should be given to make such changes in an area of great public concern, where legitimate views as to retention and use of biometric data may differ.
The case is not (yet) included in the Supreme Court's lists of current cases or judicial sittings.
Political reform and campaigning
In July as well, the government announced in its Political reform draft structural reform plan (pdf) that it will use its Freedom Bill to implement its agenda to '[r]estore the rights of individuals in the face of encroaching state power, in keeping with Britain’s tradition of freedom and fairness'. Changing the law on DNA retention is part of this civil liberties agenda:
Implement Freedom Bill to adopt the protections of the Scottish model for the DNA database, outlaw fingerprinting of children at school without parental permission, further regulate CCTV, restore rights to non-violent protest, and consider additional areas in response to ideas from Your Freedom website
Start: Jun 2010. End: Nov 2011. Lead: Home Office. Milestones: Freedom Bill passed Nov 2011
November 2011 is later than many campaigners had hoped for. That gives you, dear reader, plenty of time to lobby your MP. Of particular concern is whether when a DNA profile will be deleted, the associated Police National Computer (PNC) record will be deleted as well. This has happened so far under the exception case procedure, however the police had successfully lobbied the previous government to change this practice. The position of the coalition government on this issue remains unclear.
A response from the Ministry of Justice to the Joint Committee on Human Rights (pdf) dated from July (busy month) suggests, for the first time, that the government may in the interim bring into force some of the sections of the Crime and Security Act 2010, which received royal assent under the previous government:
The Government also intends to bring the retention of historic samples and profiles into line with the judgment of the Court as soon as possible. A number of potential options to do this as soon as possible are being explored, including commencing some or all of the DNA provisions of the Crime & Security Act 2010 where that would assist us in achieving early implementation of our policy objectives and the judgment in S & Marper.
One uncontroversial section, which could be commenced immediately, is section 64ZA about the destruction of the physical DNA samples stored in private labs' freezers as soon as a DNA profile has been derived from the sample, or if sooner, before the end of the period of 6 months beginning with the date on which the sample was taken. Such a measure would be welcomed by anyone on the DNA database and would reduce some of the costs. The only voice I have every heard opposed to this measure has been from someone working for a private lab having a direct financial benefit in the status quo.
While successive governments work out their intentions, the law and policies have remained the same and it continues to be extremely difficult for innocents to get off the National DNA Database. For help to get off, check out the Reclaim Your DNA website created by GeneWatch UK and other organisations as official help is lacking.
Bootnote Hat tip to Matthew Hill and Adam Wagner at the UK Human Rights Blog for their respective posts Courts entitled to ignore European Court decision on DNA and fingerprint retention and Courts entitled to ignore European DNA and fingerprints ruling… for now on the High Court case.
Correction: The number of innocents who have their DNA profile on the DNA database was incorrect when first published. (Thanks to ML for spotting this mistake.)
First published on 2010-09-01; last updated on 2010-09-02.
The National DNA Database (NDNAD) Ethics Group (EG) has just published its third annual report, three months after it was completed in April 2010. It makes five recommendations:
1. To accept the fundamental need for prospective studies to ensure that key issues of the proportionality and relevance of the various uses/categories of individuals within the DNA database are illuminated by robust statistical information.
2. The effectiveness of the NDNAD in solving crime needs to be addressed with a proper statistical/evidence basis for any conclusions.
3. The national DNA Database strategy Board and the NPIA should work with the EG towards an embedding of ethical considerations at all stages in the use, obtaining and retention of DNA samples and profiles.
4. The appeals process against decisions not to delete a profile from the database should be reviewed to ensure that the cost of an application does not act as an unreasonable bar to redress. Consideration should be given to referring such decisions to a specialist tribunal (such as that under the Regulation of Investigatory Powers Act) rather than panels of magistrates across the country who may very rarely consider such a case in practice.
5. The Database should be supported by a strong governance framework and there should be a clear and transparent accountability for its operations.
This short report (20 pages) describes the work done by the Ethics Group in the year finishing March 2010 and how its earlier recommendations have been handled. This reveals a few less well-known details about DNA databases and what's in store. Some such items clearly need much more public awareness (emphasis added):
In other news the March 2010 update of the Forensics21 programme explains:
The contract for the supply of DNA sampling kits has been awarded to the Forensic Science Service Ltd (FSS). Orders for DNA sampling kits can be placed with FSS through the DNA Sampling Kits framework agreement. By simply referencing the framework on any orders placed forces will benefit from the new reduced price of £1.95 - a price that will offer a considerable cost saving to all.
The final allocation of 9-series barcodes for PACE DNA sampling kits was made at the end of January 2010. From now on 3-series barcodes will be issued for PACE DNA sampling kits. In addition to the change in barcode series, the forms inside all DNA sampling kits used for the collection of demographic data now ask for less information. The Volunteer DNA sampling kit is being phased out and replaced by the Elimination DNA sampling kit. Information about a new method of taking a DNA sample from a volunteer and its subsequent use, will follow shortly.
This reduced price is just for a sampling kit. For each individual whose DNA is taken, you then need to add the cost of processing the DNA sample to obtain a profile, of storing the sample, retaining the profile, backing up the database, staff cost, etc.
The government has yet to give details on its promise to adopt the Scottish approach to DNA retention.
Ian Tomlinson, a man walking home was bitten by a police dog, struck with a baton and then pushed very strongly in the back by a police officer, and fell. Members of the public helped him. He died. This time, the violent actions of a police officer and the inaction of his colleagues were filmed, not just by CCTV, but also by a passer-by and published for the whole world to witness.
The Crown Prosecution Service has decided not to prosecute the police officer. The reason: 'irreconcilable conflict' between the three post-mortems. The first one found the death 'consistent with natural causes', the two others found the death was 'the result of abdominal haemorrhage from blunt force trauma to the abdomen, in association with alcoholic cirrhosis of the liver'.
The pathologist conducting the fist post-mortem has been suspended from the Home Office register of forensic pathologists while he is being investigated by the General Medical Council for 'allegations that, whilst working as a Consultant Forensic Pathologist Dr Mohmed Patel's conduct in carrying our four post mortems was irresponsible and not of the standard expected of a competent Home Office registered forensic pathologist and that in one case his conduct was liable to bring the profession into disrepute.'
No prosecution gives a very wrong signal to violent police officers. That this happened as a consequence of choosing as the initial pathologist someone who has allegations against him, further rewards wrong behaviour. A police officer was last convicted for assault charges following a death in custody in 1971.
Further information:
The Ian Tomlinson Family Campaign has launched a Campaign Fighting Fund to help the Tomlinson family in its fight for justice.
The coalition government has repeatedly promised it will follow the Scottish approach to change the rules for DNA retention. The coalition negotiations agreements reached in May listed 'Adopting the protections of the Scottish model for the DNA database' as one of its measures in the civil liberties section. Nick Clegg, soon after, confirmed that 'the DNA database [will be properly regulated], with restrictions on the storage of innocent people's DNA', and a month ago, Theresa May hinted that the process to create this new legislation has started:
As part of the development of a DNA retention model that provides the protections of the Scottish model, we are examining a range of options before bringing forward detailed proposals to put in place a system which provides protection to the public while respecting the rights of those who have been arrested for but not convicted of an offence.
Costs will be taken into consideration as part of the policy development process.
At no point this Scottish model has been explained and as usual in such situations, confusion leads to misinformation and the quality of the debate is lowered. For instance, the information sheet distributed by the Civil Liberties Panel of the Metropolitan Police Authority at its public meeting on the use of DNA in policing contained incorrect and misleading information in the note explaining the Scottish model.
The Scottish approach to the retention of DNA samples and profiles is defined in sections 18 and 18A of the amended Criminal Procedure (Scotland) Act 1995. As a public service I'll summarise the gist of these sections here and reproduce them in full in a bootnote.
If this model is incorporated in UK legislation, then the DNA profiles of all innocents, bar a few charged for serious sexual and violent offences will no longer be retained in England, Wales and Northern Ireland. No draft law has been published yet and no timetable announced.
Seven outstanding issues
In The DNA Database: what next? (pdf) briefing document, GeneWatch UK highlights six outstanding issues that need to be addressed before new legislation is adopted:
- Will the new law ensure that people’s records on the Police National Computer (PNC) are deleted at the same time as people’s records on the DNA and fingerprint databases?
- When does the Government expect to have the new law in place?
- What will happen to people who have cautions or old convictions for minor offences? Their records used to be deleted after five or ten years but are now kept indefinitely.
- Will there be a system of independent oversight to make sure that the police delete people’s records when they are supposed to?
- Will the Government review whether some DNA samples are being collected unnecessarily, when they are not relevant to solving the alleged crime?
- Will the new law contain tighter restrictions on how people’s stored DNA records can be used?
Check out the pdf for a detailed backgrounder of each of these issues. The first one is essential as the PNC is accessible by many organisations, including 56 non-police bodies. A related aspect, not included in the briefing, concerns the DNA report summary that is part of PNC records. These summaries include a marker for the status of the DNA sample. This information, that is accessible to all those who have access to PNC records, may be damaging especially if incorrect. For instance, for a while this marker in the DNA report summary of my PNC record was 'Confirmed', meaning 'on the database and a conviction has been achieved' even though I had no conviction (I was never even charged).
I would add at least a seventh item to GeneWatch's list: 'Will there be regular peer-reviewed publication of statistics and evidence-based analysis about the efficacy of DNA retention?' Reports published to justify options suggested by the previous government were of low quality, full of errors and not always relevant. To have a proper debate about what should be the use of DNA in policing with both aims of reducing crime and protecting our civil liberties, we need to have facts that can be trusted and inform this debate. For instance, while the previous government pushed for long retention periods with dubious arguments, it never arranged to publish data on how long DNA profiles of crime scenes and individuals had been retained, per crime type, when a DNA match or detection occurs. Another example: it is known the percentage of recorded crimes which involve a DNA detection is less than 0.4%, but not how many lead to convictions and whether DNA was even essential. There are few facts and much speculation. Hard evidence must be required to justify any measure that risk affecting innocents.
Bootnote Until the legislation changes, the exceptional case procedure is the only way to get off the National DNA Database. (The Crime and Security Act 2010 received Royal Ascent but none of its sections concerning the DNA database have come into force and now they won't.) The website Reclaim your DNA offers a step-by-step guide for innocents to request to be taken off this crime-related intelligence database and ensure that their personal genetic information samples are destroyed. Chief constables may claim that you need to wait until a change of guidelines; this is disingenuous as they have the power to destroy DNA samples and associated records.
Bootnote Sections 18 and 18A of the Criminal Procedure (Scotland) Act 1995
18. Prints, samples etc. in criminal investigations. —
(1) This section applies where a person has been arrested and is in custody or is detained under section 14(1) of this Act.
(2) A constable may take from the person, or require the person to provide him with, such relevant physical data as the constable may, having regard to the circumstances of the suspected offence in respect of which the person has been arrested or detained, reasonably consider it appropriate to take from him or require him to provide, and the person so required shall comply with that requirement.
(3) Subject to subsection (4) below and section 18A of this Act, all record of any relevant physical data taken from or provided by a person under subsection (2) above, all samples taken under subsection (6) or (6A) below and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction or an order under section 246(3) of this Act.
(4) The duty under subsection (3) above to destroy samples taken under subsection (6) [F6or (6A)] below and information derived from such samples shall not apply—(a) where the destruction of the sample or the information could have the effect of destroying any sample, or any information derived therefrom, lawfully held in relation to a person other than the person from whom the sample was taken; or (b) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held by or on behalf of any police force in relation to the person.
(5) No sample, or information derived from a sample, retained by virtue of subsection (4) above shall be used—(a) in evidence against the person from whom the sample was taken; or (b) for the purposes of the investigation of any offence.
(6) A constable may, with the authority of an officer of a rank no lower than inspector, take from the person—(a) from the hair of an external part of the body other than pubic hair, by means of cutting, combing or plucking, a sample of hair or other material; (b) from a fingernail or toenail or from under any such nail, a sample of nail or other material; (c) from an external part of the body, by means of swabbing or rubbing, a sample of blood or other body fluid, of body tissue or of other material; (d) . . . .
(6A) A constable, or at a constable’s direction a police custody and security officer, may take from the inside of the person’s mouth, by means of swabbing, a sample of saliva or other material.
(7) . . . .
(7A) For the purposes of this section and sections 19 to 20 of this Act “relevant physical data” means any—(a) fingerprint; (b) palm print; (c) print or impression other than those mentioned in paragraph (a) and (b) above, of an external part of the body; (d) record of a person’s skin on an external part of the body created by a device approved by the Secretary of State.
(7B) The Secretary of State by order made by statutory instrument may approve a device for the purpose of creating such records as are mentioned in paragraph (d) of subsection (7A) above.
(8) Nothing in this section shall prejudice—(a) any power of search; (b) any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or (c) any power to take prints, impressions or samples under the authority of a warrant.
18A Retention of samples etc.: prosecutions for sexual and violent offences. —
(1) This section applies to any sample, or any information derived from a sample, taken under subsection (6) or (6A) of section 18 of this Act, where the condition in subsection (2) below is satisfied.
(2) That condition is that criminal proceedings in respect of a relevant sexual offence or a relevant violent offence were instituted against the person from whom the sample was taken but those proceedings concluded otherwise than with a conviction or an order under section 246(3) of this Act.
(3) Subject to subsections (9) and (10) below, the sample or information shall be destroyed no later than the destruction date.
(4) The destruction date is—(a) the date of expiry of the period of 3 years following the conclusion of the proceedings; or (b) such later date as an order under subsection (5) below may specify.
(5) On a summary application made by the relevant chief constable within the period of 3 months before the destruction date the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.
(6) An application under subsection (5) above may be made to any sheriff—(a) in whose sheriffdom the person referred to in subsection (2) above resides; (b) in whose sheriffdom that person is believed by the applicant to be; or (c) to whose sheriffdom the person is believed by the applicant to be intending to come.
(7) An order under subsection (5) above shall not specify a destruction date more than 2 years later than the previous destruction date.
(8) The decision of the sheriff on an application under subsection (5) above may be appealed to the sheriff principal within 21 days of the decision; and the sheriff principal's decision on any such appeal is final.
(9) Subsection (3) above does not apply where—(a) an application under subsection (5) above has been made but has not been determined; (b) the period within which an appeal may be brought under subsection (8) above against a decision to refuse an application has not elapsed; or (c) such an appeal has been brought but has not been withdrawn or finally determined.
(10) Where—(a) the period within which an appeal referred to in subsection (9)(b) above may be brought has elapsed without such an appeal being brought; (b) such an appeal is brought and is withdrawn or finally determined against the appellant; or (c) an appeal brought under subsection (8) above against a decision to grant an application is determined in favour of the appellant, the sample or information shall be destroyed as soon as possible thereafter.
(11) In this section—“the relevant chief constable” means—(a) the chief constable of the police force of which the constable who took or directed the taking of the sample was a member; (b) the chief constable of the police force in the area of which the person referred to in subsection (2) above resides; or (c) a chief constable who believes that that person is or is intending to come to the area of the chief constable's police force; and “relevant sexual offence” and “relevant violent offence” have the same meanings as in section 19A(6) of this Act and include any attempt, conspiracy or incitement to commit such an offence.
It may not be obvious from a naive reading of Section 18A(2) whether that condition for retention applies when someone is arrested or charged. The correct reading is that there can be retention only when someone has been charged for 'a relevant sexual offence or a relevant violent offence'. The exact meaning of when criminal proceedings are instituted is defined in section 15(2)(c) of the Prosecution of Offences Act 1985 (thanks to L for this reference):
(2) For the purposes of this Part, proceedings in relation to an offence are instituted— [...] (c) where a person is charged with the offence after being taken into custody without a warrant, when he is informed on the particulars of the charge;
Powers to stop and search anyone and everyone without any reasonable suspicion, on the off chance that a random pedestrian may be a terrorist, have been suspended. These powers, section 44 of the Terrorism Act 2000, have been used to harass people from ethnic minority communities (black men and young Muslims in particular), photographers, peaceful protesters and more.
Confirmation from the European Court of Human Rights, two weeks ago, that it had rejected the British government’s final appeal over section 44 stop and search powers was cause for celebration, and 'Photographers not terrorists' met in front of New Scotland Yard (see pictures). The court in the case brought by Kevin Gillan and Pennie Quinton found 'that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention.'
Last week, Theresa May, the Secretary of State for the Home Office finally decided to halt the use of these stop and search powers. She made the following short statement in Parliament:
On Wednesday last week, the European Court of Human Rights ruled that its judgment in the case of Gillan and Quinton is final. This judgment found that the stop and search powers granted under section 44 of the Terrorism Act 2000 amount to the violation of the right to a private life. The Court found that the powers are drawn too broadly—at the time of their initial authorisation and when they are used. It also found that the powers contain insufficient safeguards to protect civil liberties.
The Government cannot appeal this judgment, although we would not have done so had we been able. We have always been clear in our concerns about these powers, and they will be included as part of our review of counter-terrorism legislation.
I can, therefore, tell the House that I will not allow the continued use of section 44 in contravention of the European Court’s ruling and, more importantly, in contravention of our civil liberties. But neither will I leave the police without the powers they need to protect us.
I have sought urgent legal advice and consulted police forces. In order to comply with the judgment—but to avoid pre-empting the review of counter-terrorism legislation—I have decided to introduce interim guidelines for the police. The test for authorisation for the use of section 44 powers is, therefore, being changed from requiring a search to be “expedient” for the prevention of terrorism, to the stricter test of its being “necessary” for that purpose; and, most importantly, I am introducing a new suspicion threshold. Officers will no longer be able to search individuals using section 44 powers; instead, they will have to rely on section 43 powers, which require officers to reasonably suspect the person to be a terrorist. And officers will only be able to use section 44 in relation to searches of vehicles. I will only confirm these authorisations where they are considered to be necessary, and officers will only be able to use them when they have “reasonable suspicion”.
These interim measures will bring section 44 stop-and-search powers fully into line with the European Court’s judgment. They will provide operational clarity for the police. And they will last until we have completed our review of counter-terrorism laws and taken any relevant action arising from that review.
The first duty of Government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties. I believe that the interim proposals I have set out today give the police the support they need and protect those ancient rights. I commend the statement to the House.
Powers to make everyone a suspect don't cut crime
It is refreshing to hear a Home Secretary considering the protection of our civil liberties a cross-political duty. This is particularly important when considering additional powers the police may ask for. The final ruling of the European Court of Human Rights obviously motivated the government to make such an announcement. However widespread concerns about the overuse of these powers, their lack of effectiveness (much less than one percent resulted in arrest and even fewer in conviction; 'very few arrests result for terrorist related offences'), and settlements obtained for wrongful use of the powers were other incentives for the government to reach such a position.
[...] Finally, the shadow Home Secretary said to me that I, as Home Secretary, need to understand. I think what the shadow Home Secretary needs to understand is the degree of concern that there has been about the use of these section 44 powers under the Terrorism Act 2000—the degree of concern that did arise, not just initially from the way in which they were being used by the police, but a continuing concern about the impact on our civil liberties. I make no apology for the fact—[Interruption.] I believe the shadow Home Secretary was looking at a Liberal Democrat, Tom Brake, and muttering about “their obsession”. I have to say to the shadow Home Secretary that a desire to protect our civil liberties is not an obsession; it is something that we throughout this House should want to do, regardless of political party. I believe it is the duty of Government to balance the need to give the police the powers they need to protect us, with the need to defend our civil liberties, and I believe that is what the statement does.
One cause for the overuse of section 44 stop and search has been the targets set for its use (recently abandoned by most, if not all, forces). At the National Policing Conference, last month, Theresa May announced the scrapping of targets: 'targets don’t fight crime; targets hinder the fight against crime. In scrapping the confidence target and the policing pledge, I couldn’t be any clearer about your mission: it isn’t a thirty-point plan; it is to cut crime. No more, and no less.' Some of these changes will surely be resisted by entrenched interests in the Home Office and the police. A good compromise would be the nine principles of policing from 1829, published soon after the creation of the Metropolitan Police Service, that defined policing by consent.
When celebrations for the suspension of section 44 stops and searches of individuals are over, vigilance will still very much be necessary. The guidelines introduced in May's statement are non-statutory and interim; they could be revoked at any time. What is required to make these changes more definitive is a change of legislation: a repeal of section 44 (if not of the whole Terrorism Act 2000). New legislation will happen only after the announced review of existing counter-terrorism laws is completed.
A potted history of sections 43 and 44
Theresa May reminded officers that 'instead [of relying on section 44], they will have to rely on section 43 powers, which require officers to reasonably suspect the person to be a terrorist.' Both these powers were created by the Terrorism Act 2000. Assistant Commissioner Yates recognised that 'a lot of the stops under section 44 were actually under section 43, where you require reasonable suspicion, so it was a misguided, mis-briefed use of the powers.' Officers have used section 44 even when they had reasonable suspicion, probably to avoid having to justify themselves. (I was stopped and searched under section 44 even though officers stated to have found my behaviour suspicious.)
From 19 February 2001, when the Terrorism Act 2000 came into force, until June 2007, its stop and search powers were mostly used by specialist units. At the very end of June 2007, two car bombs were found in London and a burning car was driven into the Glasgow airport terminal building. For a few days, the threat level in the UK was raised to the the highest: 'critical'. This marked a jump in the use of the Terrorism Act 2000 stop and search powers.
The Metropolitan Police Service (Met) did its first section 43 stop and search in February 2005. During this same month, it was already making 1,296 section 44 stops and searches. The British Transport Police (BTP) started earlier: in June 2003 it was making two section 43 stops and searches and 46 section 44 ones. Most months the number of section 43 stops and searches was in tens, increasing to hundreds for the Met from September 2008; monthly section 44 stops and searches were in thousands or tens of thousands. Most of the counter-terrorism stops and searches, 96% of the use of section 44 in 2009, are by the Met and the BTP.
For the whole of 2009, a total of 148,798 section 44 stops and searches were conducted in Great Britain, a fall of 40% from the previous year; these led to 688 arrests (an arrest rate of 0.5%). During the same period, a total of 1,450 persons were stopped and searched by the Met under section 43, out of which 28 were arrested. As can be seen in the graphs above, the number of counter-terrorism stops and searches peaked in December 2008.
A section 44 stop and search can be done only in an area where there's a prior authorisation. Until August 2009, the Met had in place a London-wide authority for section 44, reviewed every 28 days or close to. From that time, until this week, the Met moved to a patchwork use of section 44 authorisations limited to sites across London of an iconic nature and/or key strategic importance (e.g., transport hubs), and specific tasking in response to the intelligence picture. Detective Chief Superintendent Mike McDonagh at a conference earlier this year stated that, there was an authority for section 44 in place in about 10% of London and that in January 2010 there were about 4,000 section 44 stops and searches in transport hubs and the government security zone, and 600 done at borough level.
The Home Office has always refused to publish the list of section 44 authorisations. SpyBlog has made several attempts to get this information, and its freedom of information requests are still ongoing. Last month, Baroness Neville-Jones disclosed that errors were made in the authorisation process for the stop and search powers under Section 44 of the Terrorism Act 2000, hence some stops and searches were unlawful. In May, the Metropolitan Police Service quietly published a list of authorisations it requested for section 44 stops and searches from 19 February 2001 til 18 May 2009. As officers can still use section 44 in relation to searches of vehicles, it is still important to be able to verify that an authorisation is in place to ensure that a section 44 search of a car is lawful. The Counter Terrorism Command promised that 'Each police service within the UK will now confirm if they have a Section 44 authorisation in place at that current time, although forces still will not provide details of exactly where for operational reasons.'
Other ways to stop and search without ground for suspicion required
The halting of the use of section 44 of the Terrorism Act 2000 does not mean the (interim) halting of all powers that allows stops and searches of individuals without reasonable suspicion. Section 60 of the Criminal Justice and Public Order Act 1994 enables police officers to search any person or vehicle anywhere – within an authorised area – for offensive weapons or dangerous instruments to prevent incidents of serious violence or to deal with the carrying of such items. An authorisation lasts up to 24 hours and can be extended for a further 24 hours. The number of section 60 stops and searches, in England and Wales, nearly trebled from 53,319 in 2007/08 to 150,174 in 2008/09 with corresponding number of arrests of 2,069 and 4,273 respectively.
Criminologist Marian Fitzgerald pointed out that the figures on a borough level show little connection between section 60 stops and searches and reduction in number of stabbings. Not only is the efficacy of this power not clear cut, but the European Court of Human Rights ruling that section 44 of the Terrorism Act is unlawful because 'the powers are drawn too broadly [... and] contain insufficient safeguards' should apply equally to section 60.
Yet another power not requiring reasonable suspicion but more limited in where it can be used is defined in Schedules 7 and 8 of the Terrorism Act 2000. This is the power to stop, question, detain (up to nine hours) and search individuals at port and border controls. There were 10,404 examinations longer than one hour in the period between 1 January 2004 and 30 September 2009. Of these 1,110 persons were detained under the powers in Schedule 7 and 8, leading to 99 arrests for terrorism-related offences, of which 17 were initially charged in relation to offences under the Terrorism Act 2000 and 31 were charged with other terrorist-related offences. Of those charges there were 43 convictions. (From the introduction of the Terrorism Act 2000 up to 31 December 2009, fingerprints and DNA samples have been taken under Schedule 7 on approximately 1,200 occasions.)
When the Terrorism Act 2000 was passed, it is likely MPs intended its stop and search measures to be used to reduce the threat of terrorism and not as a general power to make suspects out of everyone. Some police officers justified their use of section 44 powers by considering it a preventative measure, i.e. the fewer resulting arrests are to be found a proof of its effectiveness as deterring potential terrorists to walk around equipped with items that could help in the preparation of an act of terrorism. Massive use of these powers and zero arrest being the ultimate perfection, according to this perverse logic. I witnessed such logic, with incredulity, in interventions by police officers attending a stop and search conference at Kings College. This is yet another reason why the Home Secretary and parliament must give a very clear message to all police officers of what is acceptable in a democracy... before being forced by the European Court of Human Rights.
Bootnote 1 The data used for the section 43 and 44 graphs was obtained with freedom of information requests to the Metropolitan Police Service (Met) and the British Transport Police (BTP). A year ago, neither the Home Office nor Lord Carlile, the independent reviewer of counter-terrorism legislation, had any data on the use of section 43. The Home Office explained in May 2009, '[s]tatistics on the number of Section 43 stop/searches carried out by Police Forces is not collated centrally; any statistics are collated by individual Police Forces.' Since my requests, the Home Office has regularly published section 43 statistics from the Met in its Home Office Statistical Bulletins. In this instance, the Met was helpful, but the BTP initially refused to provide section 43 or 44 statistics and required some further persuasion from the Information Commissioner's Office. One of the stated reason for non disclosure was that '[t]he law enforcement role of the force could very possibly be compromised by the release of this information.' Considering that it was common for other police forces to publish section 44 statistics and that some section 43 data had published in a Metropolitan Police Authority report into 7/7, this was a surprising reasoning!
Bootnote 2 Azad Ali from the Muslim Safety Forum, mentioned earlier this year at a conference on stop and search at Kings' College some of the allegedly typical (and astonishing) questions asked to Muslim men stopped at borders under the powers of Schedule 7 of the Terrorism Act 2000: Are you good with computers? Have you studied science? What do you want to do in life? What do you think of the Israel-Palestine situation? What does Jihad means to you? What does Ummah means to you? What's your view on arranged marriage? What's your view on the Muslim Council of Britain? Can you tell me what a moderate Muslim is?.
Imagine, being arrested, locked up and questioned by the police for a month and then told to go back to your normal life as they do not have any cause to even charge you. You are innocent, but one month of your life has been disappeared and you have been tarred with the label of suspect terrorist. Will your employer have kept your job as you suddenly left with no notice? Will you still have a home as you've been unable to pay the rent or mortgage, nor any bills? Will your friends still want to be your friends?
This happened to three individuals in the UK.
On Wednesday afternoon next week, Parliament will vote to renew for six months the current 28-day pre-charge detention limit for terror suspects. The use of these powers so far is summarised by the LibDems in their Freedom Bill as follows:
Only 11 people have ever been held for longer than 14 days, and of these only eight were eventually charged (and only three under new terrorism laws). Six people have been held for the full 28 days and three of those were eventually released without charge. Half of the people held for a month in police custody have never been charged with an offence as a result. No one has been held for longer than 14 days since June 2007. The police and the Crown Prosecution Service (CPS) have become more adept at dealing with terrorist suspects. The length of pre-charge detention should now be reduced to 14 days.
To learn more about the 'longest pre-charge detention period of any western democracy' come to the public meeting organised by the Campaign Against Criminalising Communities in association with the Haldane Society of Socialist Lawyers this coming Wednesday:
No to 28-day pre-charge detention. No to punishment without trial - No to the politics of fear.
Public meeting on the detention of people, suspected of having committed terrorist offences, for up to 28 days.
Tuesday 13 July 2010, 7-9pm, Committee Room 4, House of Lords, Westminster, SW1
Hosted by Lord Rea
Speakers:
- Chaired by Bill Bowring – Professor of Law, Birkbeck College
- Imran Khan – Imran Khan & Partners, Vice-President of Haldane Society of Socialist Lawyers
- Isabella Sankey – Policy Director, Liberty
- Jeremy Corbyn – MP
- Hicham Yezza – Writer and activist, Editor of Ceasefire magazine and detained under terror laws for six days. He has recently won his case against the Home Office's attempts to deport him.
- Anne Gray – Campaign Against Criminalising Communities (Campacc)
Under UK law, people suspected of having committed terrorist offences can be held and questioned by police for up to 28 days before being charged with an offence – or else released without charge. Previously terrorist suspects could only be detained for up to 14 days before charge or release (Terrorism Act 2000). When the period was extended under the Terrorism Act 2006, neither the government nor the police gave any credible grounds for requiring a longer period. For anyone called a ‘terror suspect’, the current limit represents an even greater extension from before the Terrorism Act 2000 – when the limit was only 7 days. For ordinary criminal suspects, including those suspected of the most serious crimes such as murder, manslaughter, rape etc, the period is only 96 hours.
The long limit is a dangerous, unjust power. Even shorter periods have been used to stigmatise, intimidate and isolate people by branding them as ‘terror suspects’. The power to arrest and detain suspects under the terrorism legislation permits detention on vague grounds, e.g. that they are suspected of involvement in the preparation, commission or instigation of terrorism. No further details are needed. That suspicion permits the police to detain a suspect for up to 28 days.
The police are supposed to use the period when someone is detained before charge to interview the suspect, and to decide whether or not there is sufficient evidence to charge that person. The police have usually already gathered evidence before they arrest a suspect, and so there is often very little additional evidence to be gathered while the person is detained. It is impossible to justify holding someone for 28 days – four weeks – simply to conduct a few interviews.
This despotic practice puts detainees under enormous psychological pressure. It can be used to extract dubious ‘information’, thus justifying detention of yet more ‘terror suspects’. It can be used for blackmailing detainees to become informers on ordinary activities in their communities. Pre-charge detention acts as a substitute for a proper criminal investigation.
Such a long detention violates the principle of ‘innocent until proven guilty’. It amounts to internment in all but name, thus violating the principle of habeas corpus. Detainees may not know the grounds for any suspicion against them. Detention for up to 28 days is the equivalent of serving a 56 day prison sentence. Lengthy pre-charge detention amounts to punishment without charge, much less a trial.
Such long pre-charge detention is not credibly necessary in order to protect the public. It doesn’t make us safer. But it does encourage a politics of fear and suspicion, creating distrust towards and within the communities who are targeted by such powers. Perhaps for this political aim, the UK has the longest period of pre-charge detention in the Western world.
The Home Secretary intends to ask Parliament to renew the powers for six months. This decision must be made by Parliament by 25 July 2010. If the powers are not renewed by 25 July, then they lapse and the time limit reverts to 14 days.
Ask your MP to vote against renewal. Use the facility on the Liberty website, Charge or Release.
The announcement of the renewal of the current pre-charge detention period limit of 28 days for terrorist suspects was made in a statement by Theresa May. The motion 'to approve a Statutory Instrument relating to Counter-Terrorism' is scheduled to be passed by Parliament on the 2010-07-14. This statutory instrument (SI) is the Terrorism Act 2006 (Disapplication of Section 25) Order 2010, also known as Draft SI 9780111499610. The draft is available as a web page and as a pdf. An explanatory memorandum is also available as a pdf.
Hopefully, the detention conditions have somehow improved since Gareth Peirce and Louise Christian both wrote about how even 14 days or less in Paddington Green affect the mental health of detainees. You may also want to read about the arguments made when this issue came up three years ago in my Detention without trial post.
Update: Justice has published a briefing (pdf) for the House of Commons renewal debate on 28 days pre-charge detention.
First published on 2010-07-07; last updated on 2010-07-11.
The Metropolitan Police Authority (MPA) is having an open public meeting on the National DNA Database (NDNAD) and the use of DNA in policing on 2010-07-01. Organiser Victoria Borwick, Chair of the Civil Liberties Panel, wrote: 'We would particularly welcome firsthand accounts of those who have had their DNA taken by police and have requested that their DNA be removed from the database. In order to cover the range of topics and avoid repetition we shall be grouping the morning into six broad areas of discussion.' Here is a list of the seven areas of discussion:
- What informs your views and knowledge of the DNA database and the use of DNA in policing?
- How do you think the taking and / or retention of DNA affects individuals and families?
- How do you think particular communities are impacted e.g. ethnic minority and / or religious communities?
- What information is provided by the police and other bodies?
- How confident are you about the security of the DNA database?
- What do you know about the process of requesting removal from the DNA database and do you think this is fair?
- What do you think are the positive aspects of the database?
For more information and to register to participate check out the full agenda on the MPA website. Registration closes on 2010-06-21. See you at City Hall in July!
Update Webcast of the public meeting.
Update You can share your view with the MPA about the use of DNA in policing by completing and submitting this questionnaire by 2010-08-31.
First published on 2010-06-16; last updated on 2010-07-20.
Information capture and retention are two very different concepts that too often get mixed up. Many politicians have appeared particularly confused by these two concepts during the debates on the National DNA Database. Cases where a match happened when the suspect's DNA was loaded were wrongly used to justify retention. Exonaration of innocents was also suggested as another justification for retention when a new DNA sample can always be taken from a detained innocent.
Several articles recently commented on the retention, by parts of the NHS, of blood test taken from babies aged between five and eight days old to screen for serious conditions. Action on Rights for Children (ARCH) explains the issue on its blog: 'Mothers are asked for consent, but usually don’t realise that if they consent to the tests (and they would be unwise to refuse these) they are also consenting to long-term storage – and in any case, few women who have just given birth are compos mentis enough to think through the issues, so it’s hardly valid consent.'
NHS Blood Spot Card (image from the NHS
website.)
Details on the collection of these blood spots had been included right at the top of the excellent Privacy guide for parents (pdf) prepared by Terri Dowty at ARCH for the launch of the film Erasing David:
Bloodspots
What is it? Soon after birth, a tiny amount of blood is taken from a baby’s heel and transferred to a ‘Guthrie Card’ as a series of small spots. These are used to carry out routine checks for any potentially serious health problems. You can get more information here:
http://newbornbloodspot.screening.nhs.uk/FAQs#1c
In England and Wales babies' blood spots are stored for a minimum of five years. Some hospitals keep them until adulthood.
Will you know it’s happening? Yes, parents are asked for their consent to this procedure.
Pros and Cons: the tests are undoubtedly very important but once you have given consent to any of them, you have no further control over whether the bloodspots are used for other research, nor for how long the Guthrie Card is kept. This is in contrast to many other countries. In Scotland, for example, parents can specify that the Card is only kept for 12 months:
http://tiny.cc/y7or0What you can do: If you believe that you should have the option of requesting destruction of the Card once tests are complete, talk to other parents in your area and consider making a joint approach to your MP to raise your concerns.
I haven't found the rate of consent given by new mothers but as this screening is, according to the NHS, 'to identify babies with these conditions early so they can be treated quickly to prevent severe disability or even death' I'd expect it to be very high; new mothers surely want to give the best chance to their babies. According to The Sunday Times, more than 700,000 babies are screened each year. By conflating consent to take the blood samples, to do the tests and to retain the Guthrie Cards, the NHS has strong armed long term retention of these blood samples creating another national DNA database without informed public debate.
Even though the Code of Practice recommends a retention 'minimum of five years as part of quality management', Marie Woolf wrote in The Sunday Times that 'Central Manchester University Hospitals Trust has 1m samples in storage dating from 1984. About 250,000 further samples are stored in the hospital’s laboratory. It plans to store them indefinitely. Cambridge University Hospitals Trust retains samples for 18 years. It stores 400,000 samples at Endex archives in Ipswich, with a further 62,800 samples kept in hospital labs. Great Ormond Street hospital in London began storing samples in 1990 and preserves them for at least 20 years. It screens and stores the samples of about 120,000 babies a year. It confirmed that it had occasionally handed samples to coroners but not to the police.'
The NHS Code of Practice for the Retention and Storage of Residual Spots complete section on retention explains:
Failure to diagnose an affected child through screening may require investigation by re-testing of the original blood spots and is part of quality management. All newborn blood spots will be retained for a minimum of five years as part of quality management. Retention thereafter will depend on the resources and requirements of the screening laboratory and/or health department.
If there's a need for re-testing, surely another blood sample could be taken from the baby (or child, if several years later). The last sentence of this section is telling, budgets and interest of the labs, not medical condition and privacy of the child are the drivers for retention. The NHS does suggest better rationales: research on anonymised blood spots is useful to monitor the health of the general population, and to develop new equipment and tests and for forensic works. However, even for these use cases, there's no need for long term retention. The only listed rationale that would justify an indefinite retention is to help police identify missing and dead individuals. Not a common occurrence, and one that would require a public debate. As a society do we find this limited benefit justifies a universal blood bank?
Last November, the Islington Borough Police set up a Stop and Search Monitoring Group to get regular feedback from members of the public. I joined this group two months ago. So far, I have only attended one meeting of the group. Most of it was dedicated to a presentation by Bevan Powell, Metropolitan Black Police Association, about two schemes: Young Leaders for Safer Cities (YLFSC) and Voice Of the Youth And Genuine Empowerment (Voyage). None of these schemes are currently planned for Islington, but they gave a context for discussing a series of workshops on stop and search.
The Inspector, Stop and Search lead for Islington Police, who set up the monitoring group organised a workshop on stop and search at the North London Central Mosque on 2010-05-14. He was accompanied by his Chief Inspector. Two Safe Neighbourhood Team officers attended as well as three independent members of Islington's Stop and Search Monitoring Group. About twenty kids and young men aged from 10 to 24-year old with the majority between 11 and 14-year old were present. They were very motivated and attentive, asking many relevant questions.
The workshop started with an introduction by the Inspector stressing that the aim of the workshop was to explain the stop and search tactic, and to get some feedback. Those who have had experience(s) of being stopped and searched then briefly talked about what happened:
This was followed by a series of four role play exercises. In the first two, the two police officers acted as police officers on patrol while two kids acted as members of the public being stopped and searched:
For the next two exercises, two kids acted as police officers and the police Inspector acted as a member of the public being stopped and searched. The 'officers' were briefed that an Asian man with a white jacket (description matching that of the Inspector) had been seen at the robbery. At some point during the stop and search, the 'officers' were further instructed that someone had been arrested for the robbery, and hence their suspect was innocent of this crime.
Participants were asked why do they think the police use stop and search tactics. Here are some of the answers:
The Inspector added that the stop and search powers are used to search for knives, drugs, stolen property, offensive weapon, equipment and suspicious individuals in hotspots. When someone is stop and searched the officers must say who they are, their police station, the grounds for the search, and give a copy of the form filled in during the search. If plain cloth officers are conducting a stop and search in addition to identifying themselves they must show their warrant card (though no warrant card was shown so how does one knows what they look like and if they're genuine was left as an exercise.)
The form normally offered at the end of a stop and search may not be
given there and then in section
60 (S60) of the Criminal Justice & Public Order Act 1994
situation as there may no time for doing so. The form can be requested
during the next 12 months (section
1(9) of the Crime and Security Act 2010 will this to three months
if it come into force). The form is not a criminal record, there's
nothing to worry about (it was not mentioned that the information
collected during the stop and search does end up in the CRIMINT
criminal intelligence database*). The police also use stop and account
to just have a chat with you.
The Inspector pointed out that the UK was exceptional in having well codified stop and search powers. In most other countries, the powers of arrest are used when a stop and search would be enough. These powers are well defined in comparison to the old 'Sus' law. (There was no mention that an arrest in England and Wales has much more severe consequences than in many other countries, in particular with having one's DNA profile ending on the National DNA Database. Also several stop and search powers do not even require any suspicion, namely section 60 of the Criminal Justice & Public Order Act 1994, and section 44 (S44) and schedule 7 of the Terrorism Act 2000.)
The conclusion was that the police will use the stop and search powers but need to use them fairly so you feel safe in your community. It was expressed that the number of stabbings in Islington has gone down in over the past years. (There may not be a link between stop and search and reduction in number of stabbings; criminologist Marian Fitzgerald pointed out that during the same period, the number of stabbings had gone up in Southwark though Southward Borough Police had used S60 stop and search powers more often than Islington Borough Police.)
Many questions were asked, most of them answered, and much feedback offered:
After two busy hours, the workshop was formally closed. Discussions still continued briefly afterwards showing how concerned kids and teenagers are with stop and search, and the interest this workshop created. The role play exercises were an efficient tool to show the difference made by remaining calm in encounters such as stop and search.
Even though the participants may not have understood all the subtleties of all the different powers, they made several comments about needing a better reason for stop and searches. This hints at the problems associated specifically with stop and search powers that do not require reasonable grounds. I was surprised that the Inspector did not mention that officers conducting a stop and search should mention the act authorising the power used. The audience was too young to go into legal details, but stating the law authorising their action does help in furthering confidence in the police. Another surprise was that no-one asked about whether they had to give their names when stopped and searched; in my experience this is one of the most common question of older audiences.
All those who talked about having been stopped and searched mentioned one of the reason given was their 'suspicious look'. It is possible that they misremembered the officers stating instead they were stopped and searched because of their 'suspicious behaviour'. This may not be racial profiling, but it is a serious issue which I hope Islington police will investigate further and report on at a future meeting of the monitoring group. Lastly, most of those stopped and searched didn't take the form, even though it was usually offered to them. Hopefully this workshop will have given them the confidence to take a copy of it, if or when they are next stopped and searched. This is an essential step in making the police officers accountable.
* Update (2010-05-24): I received the following correction from Islington Borough Police:
One thing you mention with regards the CRIMINT- Intelligence database is inaccurate. The 'Stops Data base' is not directly linked to the CRIMINT. Only if an officer believes there is useful intelligence connected to the stop is the stop then linked to the actual CRIMINT Intelligence system. The vast majority of stops are not entered onto the CRIMINT Intelligence database.
Further details about the reporting of stops and searches is contained in Notice 27/2007 from the Met Territorial Policing Headquarters (TPHQ) Stops and Searches Team (obtained on 2009-06-17 using the Freedom of Information Act):
Prevention of Double Keying
It has become common practice across the Metropolitan Police Service for data from the Form 5090 to be entered into CRIMINT in addition to the Stops Database. This is an unnecessary duplication of work and effort as all information on the Stops Database is contained within the Corporate Data Warehouse and is fully searchable through the Integrated Information Platform which every Borough Operational Command Unit has access to.
It is accepted that officers will, on occasions, glean information as a result of a stop and search/encounter that cannot be captured on the Form 5090 or placed on the Stops Database. Officers must create a separate CRIMINT entry in these circumstances, on all other occasions the stop will be recorded on the Stops Database alone.
Officers should ensure the Stops Database is populated with as much information as possible to allow detailed searches to be performed.
Update (2010-06-09): Emma Norton has posted a concise recap on Liberty Central of the main stop and search powers and what information officers must give you.
First published on 2010-05-18; last updated on 2010-06-09.
Paul Chambers has been convicted for writing a silly tongue-in-cheek message, a joke, on his Twitter feed. 'The message was “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!” This was in response to a news feed that he had just received that the airport was closed due to the weather conditions prevailing at that time.' He had booked a flight for the following week to meet his partner.
He was prosecuted under section 127(1) of the Communications Act 2003 for sending "by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character". District Judge Jonathan Bennett after a hearing at Doncaster Magistrates Court, found that the message was 'was of a menacing nature in the context of the times in which we live.'
Paul Chambers now has a criminal conviction, lost his job, and was ordered to pay a £385 fine, a £15 victims surcharge (which victim?) and £600 costs, all for writing a joke - however poor you may find it - because of the times in which we live humour is too dangerous a weapon. That means that an email, posting a blog post, comment to an article, etc. construed - in the times in which we live - to be menacing (or grossly offensive, indecent or obscene) can be enough to get a criminal record. The times in which we live are also justification to stop and search anyone without reasonable suspicion, use secret evidence or national security reason to convict individuals without them knowing why, keeping the DNA of innocents, etc.
Paul Chambers wrote about what happened to him in the Guardian: My tweet was silly, but the police reaction was absurd. His partner wrote a guest post on Jack of Kent about her experience: Paul Chambers: Guest Post by CrazyColours.
Legal blogger Jack of Kent has written extensive analysis of worrying aspects of this case, in particular:
You can donate to Paul's legal and appeal fund at the Twitter Joke Trial Fund. He has 21 days to decide whether to appeal.
During a visit to the Independent Police Complaints Commission (IPCC) I learn it has a seven year retention policy. This means my IPCC complaint files will be destroyed in 2014.
This week, the Court of Appeal has established that 'closed material', i.e. secret evidence, can never be used in ordinary civil trials. The government has been attempting to use secret evidence more and more making a mockery of the right to a fair trial. For justice to be served, an accused person must know the case against him and be able to scrutinise and challenge the evidence used against him in a fair, open and public hearing. This ruling makes it very clear how judges consider both the importance of fair civil trials and of the risk of temporary emergency legislation limiting civil rights:
69. It is nonetheless tempting to accept that there may be the odd exceptional ordinary civil claim, where the closed material procedure would be appropriate. "Never say never" is often an appropriate catchphrase for a judge to have in mind, particularly in the context of common law, which is so open to practical considerations, and in relation to civil procedure, where experience suggests that unpredictability is one of the few dependable features. However, this is one of those cases where it is right for the court to take a clear stand, at least in relation to ordinary civil proceedings. Quite apart from the fact that the issue is one of principle, it is a melancholy truth that a procedure or approach which is sanctioned by a court expressly on the basis that it `is applicable only in exceptional circumstances nonetheless often becomes common practice.
70. The importance of civil trials being fair, the procedures of the court being simple, and the rules of court being clear are all of cardinal importance. It would, in our view, be wrong for judges to introduce into ordinary civil trials a procedure which (a) cuts across absolutely fundamental principles (the right to a fair trial and the right to know the reasons for the outcome), initially hard fought for and now well established for over three centuries, (b) is hard, indeed impossible, to reconcile satisfactorily with the current procedural rules, the CPR [Civil Procedure Rules], (c) is for the legislature to consider and introduce, as it has done in certain specific classes of case, where it considers it appropriate to do so, (d) complicates a well-established procedure for dealing with the problem in question, namely the PII [public interest immunity] procedure, and (e) is likely to add to the uncertainty, cost, complication and delay in the initial and interlocutory stages of proceedings, the trial, the judgment, and any appeal.
Leigh Day & Co and Reprieve, who both acted for for Binyam Mohamed summarise this failed government's attempt to defend Guantanamo torture claims with secret evidence:
The Court of Appeal has today “firmly and unambiguously” rejected the government’s argument that it is open to a Court, in the absence of statutory power, to order a “closed material procedure” in relation to the trial of an ordinary civil claim, such as the claims of former Guantanamo detainees brought against the British Security Services and various government departments for alleged complicity in their torture and maltreatment over several years.
On 18 November 2009, in a highly controversial judgment, Mr Justice Silber ruled that in principle it was possible for a Court to allow a party to rely on closed evidence and closed pleadings in a civil claim for damages. As the law currently stands, if the government successfully claims “public interest immunity,” excusing them from disclosing material in the civil courts (for instance, on the grounds of national security) they are then not allowed to rely on the material. The government’s proposals would have meant that they would be able to rely on such evidence, the judge trying the case would be able to see it and make a judgment dependant on such evidence but the other party and their legal team would not be able to see it, respond to it or cross-examine witnesses on it . This was particularly troubling in the context of such serious allegations, leading the Claimants to appeal against the judgment.
Today, Lord Neuberger (Master of the Rolls), Lord Justice Maurice Kay and Lord Justice Sullivan unanimously agreed with the Claimants that such a procedure would undermine some of the most fundamental principles of the common law and fly in the face of the Civil Procedure Rules.
Their Lordships referred to the “cardinal requirement that the trial process must be fair, and must be seen to be fair… which under the common law means that a trial is conducted on the basis that each party and his lawyer, sees and hears all the evidence and all the argument seen and heard by the Court.” They also referred to another fundamental principle of English law that a party to litigation should know the reasons why he won or lost.
Their Lordships commented that
“[i]f the court was to conclude after a hearing, much of which had been in closed session, attended by the defendants, but not the claimants or the public, that for reasons, some of which were to be found in a closed judgment that was available to the defendants, but not the claimants or the public, that the claims should be dismissed, there is a substantial risk that the defendants would not be vindicated and that justice would not be seen to have been done. The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.”
Speaking after the judgment was delivered today, Sapna Malik, Partner at Leigh Day & Co, acting for Binyam Mohamed said:
“We are delighted that the Court of Appeal has fully accepted the Claimants’ arguments that the government has been seeking to introduce, via the backdoor, unconstitutional and manifestly unfair measures to defend these most serious of allegations, which the Courts must be emphatically resist.”
Clive Stafford Smith, Director of Reprieve, who acted for Binyam Mohamed in the United States, said:
“Perhaps the most dangerous legacy of the ‘War on Terror’ is a creeping secrecy that threatens to shutter the workings of British justice away with access limited to a privileged few. We applaud the Court of Appeal’s excellent decision to keep our courts open, so that the British public may continue to see justice done in their name. It is crucial that our government accept this ruling, and stop hiding the mistakes of the ‘War on Terror’ years. We cannot learn from history unless we know what it is.”
The Coalition Against Secret Evidence (CASE) petition
asking 'the Prime
Minister to ensure that everyone in the United Kingdom has the right to
a fair trial by ending the use of secret evidence to obstruct the
judicial process.' will reopen for signatures upon the
formation of the Government following the General Election and close by
2010-06-03. If you haven't done so yet, sign the petition
when it reopens.
As of when the Number10 petition site temporarily closed to signatures,
this petition had collected 298 signatures putting it in the top 7% most popular open petition by number of signatures.
Update: Adam Wagner, in a post on the UK Human Rights Blog, mentioned two other rulings about secret evidence: 'The Court of Appeal has told the Government three times in 24 hours that it cannot keep evidence secret in civil proceedings. Similar reasoning was applied in three different contexts; the employment tribunal, a case relating to Iranian nuclear proliferation and a claim for damages for foreign torture.'
Update: Anya Proops in the Panopticon blog also published a post summarising these three judgments and concludes that '[These judgments] also confirm that a distinction is to be drawn between those cases where there is a specific statutory or Parliamentary authority for a closed material procedure to be adopted (Tariq and Bank Mellat) and those cases where no such authority exists (Al Rawi). In respect of the latter cases, the Court of Appeal has effectively held that: (a) in general, the only procedural course available to the State is to make an application for evidence to be excluded under the PII procedure; although (b) there may be cases where exceptionally third party interests or the public interest warrant a different approach being adopted.'
Update: The petition is now closed and awaiting a response from the new administration. It closed on 2010-06-03 with 298 signatures. It is in the 10% most popular closed petitions (2,956 out of 29,701).
First published on 2010-05-05; last updated on 2010-06-06.
Nearly two years ago I met with the producer (Ashley Jones) and researcher (Rebecca Lloyd-Evans) for the film Erasing David. At the time the project was introduced to me as:
The director, David, is going to attempt to disappear in the UK to test the boundaries of our police, surveillance and database state, while being traced by our countries top private investigator. This 'stunt' will be used as a way of exploring the larger issues surrounding privacy.
I expressed reservations about the disappearance 'stunt' part of the project. It felt like too many constraints were needed to make it work. I saw the film last week, and they have managed to pull it off successfully. The presentation as a detective story with both the points of view – of the chased (David Bond) and of the chasers (Cerberus Investigations) – makes for an interesting thriller. One change from the early brief is that the film tests aspects of private surveillance and the database state, but the police and their many databases are left out. The team from Cerberus slowly builds a vast profile of David Bond mainly through querying online information and using traditional sleuthing techniques such as checking the bins of David and his parents (for which they had prior consent). The experiences of being under surveillance and of realising how much data is held on us by commercial companies and public organisations has affected David Bond and his family beyond the film.
One particularly interesting aspect of the film is that it explores privacy issues that are not always easy to represent visually. Too often privacy is depicted in films solely with CCTV. A CCTV control room does feature in the film but only briefly. One instance where the documentary is particularly efficient is in communicating both the mass of data held on us and how one can figure out what is held on them. There is a scene where David goes through the piles of responses to subject access requests he had sent (using the Data Protection Act). The thickest response was from Amazon. Another response describes his mood when he contacted that organisation.
A number of privacy experts are interviewed in the film. Terri Dowty from Action on Rights for Children (ARCH) in addition to her interview has published, on the film's website, a Privacy guide for parents (pdf) detailing the information collected about children from the moment they are born. It's worth browsing through it even if you don't have kids to fully realise the extent of data collection going on. The website hosts more information such as education packs. If after seeing the film you decide to send a few subject access request, you may also find my simple guide to the Freedom of Information and Data Protection Acts useful.
The cinema première is on 2010-04-29 and there will be a live Q&A from the Brixton Ritzy that will get beamed to other simultaneous screenings. It will also be shown on More4 on 2010-05-04 at 10pm.
Note that if you plan to attend this free public debate on Thursday, I just learnt that you must register for it. Here are further details from the registration page:
Public Debate
‘Surveillance, Politics and Civil Society’Featuring Shami Chakrabarti, Directory of Liberty, Professor Clive Norris, University of Sheffield, Anna Minton, Writer/Journalist and David ‘Panda’ Mery, Writer/Activist
Chair: Professor Dr David Murakami Wood, Queen's University, Canada
Thursday 15th April 2010 at 7pm - 8:30pm, Oliver Thompson Lecture Theatre, City University London**
** Despite the event being free to members of the public, individuals MUST register in advance to guarantee a space in the auditorium.
Surveillance has become a topic of central importance for citizens, academics and governments alike as new space-time transcending monitoring technologies flood the market, pre-emptive, at-a-distance governance becomes the new logic of contemporary institutions, organisations seek to streamline and better administer their everyday practices, individuals perform and search for meaning within the spaces created by surveillance processes and the world becomes overlaid by a dense series of increasingly interconnected electronic flows. Several important questions are raised by these developments: how, for example, should relations between citizen and state, citizen and commerce and among citizens themselves be understood? In what ways might Human Rights principles be threatened by global flows and exchanges of data? How are concepts like personhood, identity, trust and privacy being transformed and shaped through surveillant practices? How might such developments be challenged and struggled over? What implications does national security policy have for individually situated notions of human security?
‘Surveillance, Politics and Civil Society’ seeks to address such questions by drawing on the views of a number of high profile, expert speakers and input from members of the audience. In particular, the session will explore what the role of civil society should and can be in regulating surveillance growth and expansion. Topics of debate will include: whether or not the state has become more authoritarian via its data collection practices and activities; what issues are raised by surveillance cultures embedding themselves into the everyday fabric of social life and social organisation; whether there are constitutional tools available to citizens to challenge surveillance protocols and processes, and a host of other related subject matter.
The event will be followed by a short wine reception, kindly sponsored by the Centre for Law, Justice and Journalism, City University London.
Details of other events this week, on hostile reconnaissance, police monitoring and privacy were posted earlier in Surveillance, hostile reconnaissance and legal observation.
Why is it that the topic of the National DNA Database (NDNAD) brings the worse crassness out of politicians? Two days ago, the Tories changed their mind on what they had long claimed to be a 'point of principle', allowing the Crime and Security Bill to become an Act with its DNA clauses intact. Today, Gordon Brown went a few notches up by misleading the public about DNA retention in the presence of the family of Sally Anne Bowman, at a campaign event in Stevenage. His arguments, that retaining the DNA profile of anyone arrested is essential to bring to justice criminals, including the killer of Sally Anne Bowman, has been debunked before, many times.
Retention of DNA profiles of innocents does not improve crime detection. What helps is retention of DNA profiles of crime scenes. More details in the post: Home Office gets DNA database funding priorities wrong. Tables of the detection rates for the past two years are in this post: Sorry Affairs Committee; it has remained over the years close to 0.36%.
The Home Office has still not published data supporting the claims by ministers of cases where DNA evidence has been essential. What has been published by the Home Office has times and again proven to be unreliable: the research by the Jill Dando Institute published with the Home Office consultation was from my reading of it an estimation based only on approximately 18 cases taken over three days at one year interval; more about this in the post: Sentenced to genetic probation (the research was later disavowed by the Institute's director). The research published alongside the summary of responses to the consultation is of little use as it 'does not provide evidence to inform the length of any general DNA retention period'; more details in the post: Home Office still wants your DNA profile, and your PNC record. When the Home Office listed five case studies in a letter to a Committee scrutinising the Crime and Security Bill, two of these five were in fact one and the same; more details in the post: Home Office: five equals four.
In the specific case of Sally Anne Bowman, Mark Dixie's DNA was profiled after a pub brawl and then matched to the DNA profile of the crime scene. There was no need for DNA retention of individual profiles in this case. This case and a few others are listed on Liberty's Busting the Myths. Gordon Brown also mentioned how Sally Anne Bowman's boyfriend was eventually exonerated thanks to the arrest of Mark Dixie. What he didn't say is that another innocent man, Kevin Reynolds, whose DNA profile was on the DNA database, was also arrested for this murder and had a second DNA sample taken when his first retained sample should have been enough to prevent his arrest. More details, published two years ago, in the post: DNA retention of unconvicted people.
The National DNA Database has more than five million records including those of close to one million innocents. What happens to their personal and intimate data should get more respect from politicians.
See also reactions from GeneWatch UK and Liberty, and the election fact checking of The Guardian and The Times.