Home Secretary Jacqui Smith delivered a speech titled 'Protecting rights, protecting society' to the Intellect Trade Association on 2008-12-16. It is one of her most perverse speeches that demonstrates either a lack of understanding of the issues she's dealing with or dangerous vacuous doublespeak policy statements, or both. I recommend you check out the following excellent analysis:
'Balance' is mentioned eight times, 'balancing' once; here's a word frequency analysis of the speech (created with Wordle):
Two weeks earlier, on the same day the ECtHR ruled against the UK, Thomas Hammarberg, CoE Commissioner for Human Rights presented a rather different view in the issue paper 'Protecting the right to privacy in the fight against terrorism':
We are rapidly becoming a “Surveillance Society”. This is partly the result of general technical and societal developments, but these trends are strongly reinforced by measures taken in the fight against terrorism.
In the context of the fight against terrorism, this means individuals are at risk of being targeted for being suspected “extremists” or for being suspected of being “opposed to our constitutional legal order”, even if they have not (yet) committed any criminal (let alone terrorist) offence.
“Targets” of this kind are moreover increasingly selected through computer “profiles”. Even if some may be caught, there will always be relatively large numbers of “false negatives” - real terrorists who are not identified as such, and unacceptably high numbers of “false positives”: large numbers of innocent people who are subjected to surveillance, harassment, discrimination, arrest - or worse. Freedom is being given up without gaining security.
In addition, increasing use is made of non-criminal, yet effectively punitive, “administrative” measures against identified suspected “extremists” or new-type “enemies of the State”. This robs them of fundamental safeguards, both against the specific measures taken against them and, as groups, against such discrimination. It leads to alienation of the groups in question, and thus actually undermines security.
In the process, all of us are increasingly placed under general, mass surveillance, with data being captured on all our activities, on-line or in the “real” world. Such general surveillance raises serious democratic problems which are not answered by the repeated assertion that “those who have nothing to hide have nothing to fear.”
Earlier this month, 17 judges on the Grand Chambers of the European Court of Human Rights (ECHR) ruled unanimously that the UK is in violation of the right to respect for private and family life (Article 8) by retaining the fingerprints, DNA samples and profiles of Messrs S and Marper. Mr S was arrested at the age of 11 and charged with attempted robbery. Mr Michael Marper was arrested and charged with harassment of his partner. Both were arrested in 2001, and both had their fingerprints and DNA samples taken. Later that same year Mr S was acquitted and the case of Mr Marper was formally discontinued, as he and his partner had become reconciled and the charge was not pressed.
The court found
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.
Let's look at the consequences of this ruling. What you can you do - as soon as you've finished reading this article - and what is the likely impact on legislation and policies?
Don't delay - delete your DNA today
The ruling clearly affects the retention by England, Wales and Northern Ireland police forces of fingerprints and DNA samples, and derived DNA profiles of both those who have been acquitted and those for which a decision of no further action (NFA) was taken. If you are among the estimated 573,639 to 857,366 innocents whose DNA profile is on the National DNA Database (NDNAD), you should act now. Don't wait until the time the police will have to weed out these records and samples.
Writing to the chief of police
The first step is to write to the chief of police of the force that arrested you. This may seem obvious, but several responses to freedom of information (FOI) requests we sent out as part of the research for this article, before the outcome of the S and Marper UK case was known, reveal that few individuals have gone to the trouble of asking.
At one extreme, the Warwickshire Police force has not received any requests in the last three years even though they contributed 12,263 DNA profiles to the NDNAD in the same period. At the other end of the scale, the Metropolitan Police, which in the past three years has contributed 85,305 DNA profiles, close to a fifth of the DNA profiles added by all English and Welsh forces to the NDNAD, received only 23, 64 and 110 requests for the removal of DNA profiles from the NDNAD, and granted 11, 18 and 21 of these respectively for 2006, 2007 and 2008 (up to the end of November).
Even though the West Midlands Police has in recent years arrested for recorded crimes about a third the number the Met has, it has received a similar number of requests for removal: 58, 49 and 83, and granted 25, 7 and 28 of these respectively for 2006, 2007 and 2008 (to November 21). For forces with fewer arrests such as the Cheshire, Durham or Gwent Constabularies, you can count the number of requests granted, since recording them started, on one hand. Police guidelines (the Retention Guidelines for Nominal Records on the Police National Computer) ensured that received requests to get off the NDNAD were granted only exceptionally. As a consequence of the ruling, the exceptional will have to become the norm.
Several forces do not keep a tally of the requests they receive. For example, the Northamptonshire Police responded to our request for details: "There is no single database holding the information requested. Some information may be held on individual custody records but manual examination would take the request over the cost limit and any results would not be conclusive in any case." One force, the Derbyshire Constabulary decided "As a result of your request [I] have asked the staff who deal with exceptional cases to consider making a record of requests and decisions."
Dr Helen Wallace, Director of GeneWatch UK, a not-for-profit organisation that monitors developments in genetic technologies from a public interest perspective, which provided expert evidence on behalf of Messrs S and Marper to the ECHR, commented on the ruling: "[This] landmark decision vindicates all those innocent people who have struggled to get their DNA destroyed. It means that there must be strict new rules to limit DNA retention and prevent misuse."
How to write a formal request
Having decided to write to request destruction of your fingerprints and DNA samples, deletion of your DNA profile and deletion or updating of any other database records linking to this information, the next step is to figure out what you should write. You need to include enough information so the police can identify you, the circumstances in which you were arrested (and your fingerprints and DNA samples were taken), details of the NFA decision or of your acquittal, and the reason you are requesting your records to be deleted and your samples to be destroyed.
This initial letter doesn't have to be long but it must be precise otherwise the police won't be able to deal with it. In its FOI response, the Cheshire Constabulary explained that it "receives numerous 'requests' for the removal of DNA, [t]he majority of which could not be considered formal request as when asked why we should consider their request, they simply do not respond or they actually mean something different. We would seek to clarify requests to establish the identity of the requestor and the reasons why they are requesting removal of data. This is well before we can actually consider the merits of a request and whether or not it fits the requirements of the Exceptional Cases procedure."
GeneWatch suggests this as a reason to "[a]sk for them to remove your records and destroy your DNA in the light of the judgment of the European Court of Human Rights". You may want to send a copy of the letter to your MP and a copy of any reply to GeneWatch (and let us know how it goes as well).
Another suggestion is that you may also want to argue for the police to remove your records and destroy your DNA samples in "other cases (e.g. cautions, final warnings, spent minor convictions)". Although the ECHR decision only covers people who have not been convicted, it makes clear that an interference with personal informational privacy such as the retention and use of profiles and samples must be indispensable and proportionate with the legitimate aim of the criminal justice system (i.e., the seriousness of the offence).
The Court cannot, however, disregard the fact that, notwithstanding the advantages provided by comprehensive extension of the DNA database, other Contracting States have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life... The Court considers that any State claiming a pioneer role [as the UK is] in the development of new technologies bears special responsibility for striking the right balance in this regard.
If you're in a situation where you find this balance has not been achieved, for example the indefinite retention for children given reprimands, then you may also benefit from this ruling.
Taking into account the ECHR ruling, the police are now likely to accept all legitimate requests as they would be in a very weak position if an innocent person were to seek a judicial review in case of refusal. Due to the small number of requests granted prior to the ruling, the actual deletions from the NDNAD and the Police National Computer (PNC) and destruction of samples is a very ad-hoc process. The Met promised a process last year and eventually did publish one (pdf), but it was not worth the wait.
Here's the process they go through: "If the decision to delete has been made, the Exceptional Cases Unit will contact the respective departments and agencies to ensure that the DNA, fingerprints and PNC records are deleted/destroyed accordingly."
The National Police Improvement Agency (NPIA) realises that "following the judgement last week in the S & Marper case heard at the European Court of Human Rights the DNA sample retention and destruction requirements are being reviewed." At least, once a DNA profile has been deleted from the database, it would appear that these transactions are propagated to all backups in short time:
The NDNAD has both a regular internal and a regular off-site back-up procedure. All transactions carried out on the NDNAD are backed up each working day. The deletion of profiles from the NDNAD would be treated the same as any other NDNAD transaction within this back-up procedure. Any record of a DNA profile will also be removed from all back-up media within 10 days of its deletion from NDNAD.
Until a comprehensive process is published giving stronger confidence in the deletion process, once you get confirmation that your request has been granted you may want to ask to be present when the physical samples are destroyed and electronic data is deleted and updated. If you go for this, ask speedily or possibly even with your request letter, as in my case the deletion process was started before informing me of the decision!
Observing the process by a large number of individuals would be costly in time and money; an easier alternative would be for the labs used by the police to generate DNA profiles from the samples taken from individuals to systemically destroy the DNA samples once a DNA profile has been derived. The DNA samples are not used for identification.
Changes of legislation and policies
What does the ECtHR ruling change for the government and the police? Article 44 of the European Convention of Human Rights (ECHR) states that the "The judgment of the Grand Chamber shall be final" and article 46 that "The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties" - so the UK government can't ignore this ruling. Jack Straw confirmed in Parliament that "The judgment... goes on to suggest that distinctions should be made between the nature of offences for which samples have been taken, and discusses whether they should be time-limited and whether there should be an independent review. Those matters will be considered by my right hon. Friend the Home Secretary in consultation across Government. We have an obligation to report initially to the Council of Ministers and the Council of Europe by March."
The Joint Committee on Human Rights explained the mechanism of abiding by such rulings in its 31st report:
The UK has undertaken to give effect to the ECHR and to give effect to the judgments of the ECHR. The UK must abide by ECHR judgments by: (1) putting an end to the breach identified by the Court (the obligation of cessation); (2) preventing any further violations in the future (the obligation of non-repetition); (3) repairing the damage caused to the individual (the obligation of reparation); (4) paying to an individual applicant any award of just satisfaction made by the ECtHR (the obligation to make just satisfaction).
The obligation of cessation
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" must cease. "The Court recalls that it has found that the retention of the applicants' fingerprint and DNA data violates their rights under Article 8. In accordance with Article 46 of the Convention, it will be for the respondent State to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to fulfil its obligations to secure the right of the applicants and other persons in their position to respect for their private life."
Solicitor Peter Mahy, a human rights specialist at Sheffield-based Howells LLP representing Messrs S and Marper, puts it succinctly: "It will be very interesting to see how the UK government respond. The government should now start destroying the DNA records of those people who are currently on the DNA database and who are innocent of any crime." Up to one in five of the more than five million DNA profiles may have to go.
A process has to be put in place to deal with the scale of this operation. The Scottish Police Services Authority (SPSA), a non-departmental public body (NDPB), centrally handles the removals of more than 20,000 Scottish DNA records every year. Police forces in England and Wales will likely look at this model. With its role of overseeing delivery of the NDNAD Service, the NPIA should be a candidate for a similar central function. In the meantime those innocents whose DNA is on the NDNAD should request removal as explained earlier.
The retention rules will have to change too. The legislation enables the police to take and retain fingerprints and DNA samples indefinitely, but it does not compel them. Section 64 of the Police and Criminal Evidence Act 1984 (PACE) as amended by the Criminal Justice and Police Act 2001 includes:
(1A) Where - (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.
The police may take samples and may retain them indefinitely, but it's up to them. The current rules were not decided by Parliament; they are established in the Retention Guidelines for Nominal Records on the Police National Computer, a document issued by the Association of Chief Police Officers (ACPO). This document also provides a template for the letter sent by chiefs of police when refusing requests for destruction of DNA records.
Chris Sims, ACPO lead on Forensics and Chief Constable of Staffordshire Police announced: "We will study this judgment carefully and consider in detail implications which could have a profound impact on the way in which the police service makes use of DNA technology to protect the public and tackle crime... It is important to stress that the existing law on the taking and retention of DNA and fingerprints remains in place. Police will continue to take DNA from those people arrested for crimes and will investigate crimes and bring offenders before the court using DNA evidence until such time as there is a legislative change."
This statement is overly cautious - no legislative change is needed for the ACPO to change its guidelines. What must change is the retention of records and samples. Taking DNA from those arrested for a crime is not the issue. Home Office minister Vernon Coaker, agreed in a Parliament debate in November that the "[ACPO retention] guidelines will need to be reviewed in the light of the outcome of the S and Marper case, and a PACE review is currently under way."
The obligation of non-repetition
The recent PACE review made it clear that it will be amended in line with the judgment. "The Government does not intend to make any proposals at this time in area. That is because of an outstanding case in the European Court of Human Rights... a response in respect of this area of policy will be made following consideration of the Judgement by the Court."
It is necessary for the legislation to change so that it is no longer possible for the police to create and follow policies that violate our human rights. However, effective change of current retention practices can happen much sooner with a change of policy.
The obligations of reparation to make just satisfaction
The Court considers that "the finding of a violation, with the consequences which will ensue for the future, may be regarded as constituting sufficient just satisfaction in this respect. The Court accordingly rejects the applicants' claim for non-pecuniary damage." Hence the reparation will consist of deleting the DNA profiles and destroying the DNA samples and fingerprints of Messrs S and Marper. The government has to pay within three months, ie by March 4, the sum of €39,387 awarded by the Court in respect of costs and expenses.
The Committee of Ministers has the responsibility to monitor the measures taken by the UK to comply with the judgment. "[U]ntil the state in question has adopted satisfactory measures, the Committee of Ministers does not adopt a final resolution striking the judgment off its list of cases, and the state continues to be required to provide explanations or to take the necessary action."
Retaining DNA of a large number of individuals has not proved helpful. A GeneWatch analysis shows that when "the number of individuals with DNA profiles on the Database... doubled from 2 million to 4.5 million... there has been no corresponding increase in the number of crimes detected. The percentage of recorded crimes which involve a DNA detection has remained roughly constant at 0.36%... The Home Office recognises that the increased number of crime scene profiles added to the Database drove the increase in DNA detections."
Nothing in the ECHR ruling affects the ability of the police to take DNA samples from those they arrest during their investigations. Nor does the ruling ask for wholesale deletion of DNA records of convicted criminals, though it does note that in other Council of Europe member States "[t]he retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person's death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons."
The Joint Committee on Human Rights in the conclusions of its report notes "[d]elays of upwards of five years in resolving the most significant breaches of the European Convention are unacceptable unless extremely convincing justification for the delay can be provided." This only serves to reiterate that those who are innocent and on the NDNAD should not delay requesting the removal of their DNA records. ®
(The full text of the judgement is available on the British and Irish Legal Information Institute website and you can download a six minutes video of the reading of the judgment's summary from a hard-to-find page on the Council of Europe's website.)
After a four-year absence, the Big Borther awards are back with Simon Davies and Gus Hosein from Privacy International as masters of ceremony. Traditionally this event expose the government and private sector organisations which have done the most to threaten personal privacy. This year the emphasis was much more on celebrating the individuals who have made outstanding contributions to the protection of privacy.
A single Big Brother 2008 award - the golden statue of a boot stamping upon a human head - was won by New Labour.
Six individuals received virtual Winstons (due to timing there were no physical objects to give during the evening, which also meant as Simon pointed out that there was nothing to be seized by the Police in case of raids on any of the winners!):
Most of the short presentations were about the hope brought about by the recent ECtHR ruling in S. & Marper v. UK (GeneWatch UK, Privacy International and Liberty intervened with evidence or submission in this case.) The derailment of the attempt to extend pre-charge detention to 42 days, and the absence of the latest communication surveillance initiative, the interception modernisation programme (IMP), from the Queen's speech were others positive news this year.
Congratulations to Baroness Ludford, Phil, Helen, Gareth, Becky and David Davis.
The Jean Charles de Menezes family sums up the wider issue at stakes in their press statement: 'This case raises questions of critical constitutional importance. Should our armed police service be protected from meaningful criticism (let alone criminal sanction) or are the public entitled to go about their day to day business free from the fear that they could be shot dead without warning if mistaken for a suspected terrorist?
At 12:53pm today, the jury announced its verdict in the inquest into the death of Jean Charles de Menezes:
SIR MICHAEL WRIGHT: Mr Foreman, I think, if you don't mind, if I ask you to stand up, then everybody can see you and see that it is you who is speaking. I understand that the jury has reached a verdict and answers to all questions and that at least eight of you are agreed on all the answers given. Is that so?
THE FOREMAN OF THE JURY: That's correct, sir.
SIR MICHAEL WRIGHT: Thank you. I am now going to ask you to give your answer on each matter and to say in each case whether you are all agreed or whether the answer has been reached by a majority and, if so, the size of the majority in each case, the numbers in each case. The short form verdict is either lawful killing or open verdict. What is your verdict?
THE FOREMAN OF THE JURY: Open verdict.
SIR MICHAEL WRIGHT: Thank you. Question 1: did officer Charlie 12 shout the words "armed police" at Mr de Menezes before firing; yes, no or cannot decide?
THE FOREMAN OF THE JURY: No.
SIR MICHAEL WRIGHT: I should have asked you in relation to the verdict: is that a unanimous verdict or by a majority?
THE FOREMAN OF THE JURY: It's a majority.
SIR MICHAEL WRIGHT: How many agreed and how many disagreed?
THE FOREMAN OF THE JURY: Eight agreed, two disagreed.
SIR MICHAEL WRIGHT: In answer to question number 1, the one you have just given, is that unanimous or by majority?
THE FOREMAN OF THE JURY: That is unanimous.
SIR MICHAEL WRIGHT: The second question is: did Mr de Menezes stand up from his seat before he was grabbed in a bear hug by Ivor; yes, no or cannot decide?
THE FOREMAN OF THE JURY: Yes, and that's unanimous.
SIR MICHAEL WRIGHT: Thank you. Did Mr de Menezes move towards officer C12 before he was grabbed in a bear hug by officer Ivor?
THE FOREMAN OF THE JURY: No, and that's unanimous.
SIR MICHAEL WRIGHT: Thank you. Turning to the factors for consideration, do you consider that any of the following factors caused or contributed to the death of Mr de Menezes: (a) the suicide attacks and attempted attacks of July 2005 and the pressure placed upon the Metropolitan Police in responding to the threat?
THE FOREMAN OF THE JURY: Cannot decide, sir.
SIR MICHAEL WRIGHT: Again, is that inability to decide by a majority or unanimous?
THE FOREMAN OF THE JURY: That's a majority of eight to two.
SIR MICHAEL WRIGHT: Thank you. (b) a failure to obtain and provide better photographic images of the suspect Hussain Osman for the surveillance team?
THE FOREMAN OF THE JURY: Yes, that's unanimous.
SIR MICHAEL WRIGHT: (c) a failure by the police to ensure that Mr de Menezes was stopped before he reached public transport?
THE FOREMAN OF THE JURY: Yes, unanimous, sir.
SIR MICHAEL WRIGHT: Thank you. (d) the general difficulty in providing identification of the man under surveillance, Mr de Menezes, in the time available and in the circumstances after he had left the block at Scotia Road?
THE FOREMAN OF THE JURY: No, and that's unanimous.
SIR MICHAEL WRIGHT: (e) the innocent behaviour of Mr de Menezes which increased the suspicions of some officers?
THE FOREMAN OF THE JURY: No, that's a majority of eight to two, sir.
SIR MICHAEL WRIGHT: Thank you. The fact that the views of the surveillance officers regarding identification were not accurately communicated to the command team and the firearms officers?
THE FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: (g) the fact that the position of the cars containing the firearms officers was not accurately known to the command team as the firearms officers were approaching Stockwell station?
THE FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: (h) any significant shortcomings in the communications system as it was operating on the day between the various police teams on the ground and with New Scotland Yard?
THE FOREMAN OF THE JURY: Yes, unanimous again, sir.
SIR MICHAEL WRIGHT: (i) a failure to conclude at the time that surveillance officers should still be used to carry out the stop of Mr de Menezes at Stockwell station, even after it was reported that specialist firearms officers could perform the stop?
THE FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: That concludes your verdict. I am very much obliged to you, Mr Foreman, thank you.
The family's reaction:
Is the family pleased with the verdict? Do they feel justice has been done?
The decision today will not bring our cousin Jean back.
However, it goes at least some way to recognising the failings that led to his death. We thank the jury for the considerable time they contributed to this inquest and their careful review of all the evidence within the boundaries given to them.
Agencies and institutions involved in all aspects of this case must now demonstrate their own accountability and make fundamental changes to their practices and procedures.
In their conclusions, the jury have delivered a strong critique of the police and its failings. They have said that they do not believe that the police gave a warning before shots were fired, or that Jean advanced towards firearms officers in the tube train. The family appreciate this conclusion.
We have come a little closer to the truth during the course of the inquest. Nevertheless, the gagging of the options available to the jury constitutes a abject failure of the role of the inquest.
What will the family do now?
The family has consistently struggled for justice, which has not yet been delivered. We will continue to pursue this aim.
The next stage is a judicial review of the Coroner's decision not to allow an unlawful killing verdict. We will also be examining all other legal avenues because we feel that the Coroner has ensured that the inquest failed in its fundamental role to properly examine why our cousin Jean was killed.
As the legal situation stands today, another innocent member of the public could be shot and another family could go through the same ordeal as us.
Will the family be asking for compensation?
The family has not pursued this as a priority. Our central concern has always been to find out the truth about Jean's death.
When we buried Jean in 2005,we made a promise to him that we would make sure that justice was done. Jean was a great believer in justice, one of the things he most loved about living in Britain was respect for the rule of law and that nobody was above the law. We owe it to his memory to make sure that nobody else suffers the way that he did.
In light of the verdict, we would nevertheless hope that any issues around compensation to be settled in a dignified manner, without obstruction or delay.
What is your message to Sir Ian Blair?
Today's verdict confirms that Sir Ian Blair has repeatedly evaded any responsibility for the killing of an innocent man, by misleading the public in the aftermath of the shooting so that no-one in his police force is held to account over the killing of Jean Charles de Menezes.
However, having misrepresented the shooting as simply a 'tragic mistake' rather than the result of terrible policy and procedural failures, it is clear that Jean's death will always be Sir Ian's legacy, the judgement on his time as Commissioner that he will never escape.
Has the family any message to the jury?
We consider that the jury were given unacceptable restraints upon the verdict they could deliver and feel that, within the choices available to them, they tried their best to deliver a fair verdict. We thank them for their handling of this difficult task.
We feel that in light of the evidence heard, a free decision by the jury would have at least have left a possibility of a verdict of unlawful killing.
It is disappointing that the Coroner made clear attempts to exclude the public, media and the family's campaign from the inquest.
The family would also like to express their appreciation for the many messages of support from the British public during this difficult time.
The family staged a protest in court. Do they stand by their actions? Do they feel these actions made a difference?
The family stands by our actions because we feel that we were left with no choice. We wanted the jury to know that they could have the freedom to make their decision, despite the limitations placed upon them.
Do you think Cressida Dick should resign?
The family should not have to carry the responsibility of this decision. Public bodies have a responsibility to hold her accountable and they have failed to do so.
In light of DAC Dick's direct involvement as the designated senior officer of a disastrously handled operation that led to the shooting of an innocent man, her promotion in the aftermath of the shooting was considered by us to be a deliberate slap in the face for our family and our view on this remains unchanged.
We once again call on the Independent Police Complaints Commission, the Crown Prosecution Service and the Metropolitan Police Authority to review the inquest evidence and to see what appropriate action needs to be taken to hold public servants to account.
Why did you ask your legal team to withdraw from the inquest?
The family felt that they were left with no other option. We felt the coroner's decision to restrict the jury's decision-making completely undermined their role to freely return whatever verdict they felt was correct based on the evidence. We could no longer participate in a process which was so clearly a whitewash.
More details on the views of the different parties on the choice of verdict and questions offered to the jury can be found the post inquest briefing and legal submissions on verdicts.
Last year British lawyer Clive Stafford Smith suggested that musicians use copyright law to hold the American government to account for its use of music to torture detainees in Afghanistan, Iraq and Guantanamo. I wrote about this idea, about the use of music as a weapon and moral rights for El Reg in Fighting torture with copyright - Moral musos work to rule. (See also the related posts on this blog: readers' follow-ups suggestions such as for the US Army to run its own music label, and the 'Bring Byam Home' song; Binyam Mohamed is still held in Guantanamo and a victim of music torture: 'I could not take the headphones off as I was cuffed. I had to sleep with the music on and even pray with it.') Earlier this year, Clive Stafford Smith wrote Welcome to 'the disco' in The Guardian about 'torture lite' - music played at excruciating volume over and over.
Yesterday, on human rights day, Reprieve, the legal charity of which Clive Stafford Smith is the director, launched the Zero dB project:
Zero dB – against music torture
On the 60th anniversary of the Universal Declaration of Human Rights musicians are uniting against the use of music to torture by joining www.ZerodB.org The Zero dB project (zero decibels = silence) was launched today by legal charity Reprieve which represents over 30 prisoners in Guantanamo Bay. Many of Reprieve’s clients - and hundreds more held in US secret prisons across the world - have been subjected to deafening music played for hours, days and often months on end in order to ‘break’ them.
Zero dB aims to stop torture music by encouraging widespread condemnation of the practice and by calling on governments and the UN to uphold and enforce the Convention Against Torture and other relevant treaties.
Zero dB is backed by the Musicians Union which is calling on British musicians to voice their outrage against the use of music to torture.
The UN and the European Court of Human Rights have banned the use of loud music in interrogations, but it is still being widely used. Prisoners describe the experience as harder to bear even than physical torture.
Reprieve’s client Binyam Mohamed from North London - still held in Guantanamo Bay - suffered 18 months of torture in a Moroccan secret prison. During this time his penis was routinely slashed with razor blades, yet he describes the sensation of feeling his sanity slip during psychological torture as even more horrific. He spoke to Reprieve Director Clive Stafford Smith, his lawyer, in Guantánamo Bay:
“They hung me up. I was allowed a few hours of sleep on the second day, then hung up again, this time for two days. My legs had swollen. My wrists and hands had gone numb.... There was loud music, [Eminem’s] ‘Slim Shady’ and Dr. Dre for 20 days.... The CIA worked on people, including me, day and night.... Plenty lost their minds. I could hear people knocking their heads against the walls and the doors, screaming their heads off.”
There is a long and growing list of supporters who are outraged by the use of music to torture: James Lavelle of UNKLE, Matthew Herbert, Tom Morello of Rage Against The Machine, Massive Attack, The Magic Numbers, Elbow and Bill Bailey have so far pledged their support of the initiative and made statements against the use of music to torture.
Musicians and the wider public are making their own silent protests against music torture which are being shown on zerodb.org. A series of silent protests and actions are planned through 2009.
Visit www.zerodb.org to record your silent protest now.
Music that has been used to torture includes:
• AC/DC - Hell's Bells
• AC/DC - Shoot to Thrill
• Barney the Purple Dinosaur - theme tune
• Bee Gees - Stayin' Alive
• Britney Spears
• Bruce Springsteen - Born in the USA
• Christina Aguilera - Dirrty
• David Gray - Babylon
• Deicide - Fuck Your God
• Don McLean - American Pie
• Dope - Die MF Die
• Dope - Take Your Best Shot
• Dr. Dre
• Drowning Pools - Bodies
• Eminem - Kim
• Eminem - Slim Shady
• Eminem - White America
• Li'l Kim
• Limp Bizkit
• Matchbox Twenty - Gold
• Meat Loaf
• Metallica - Enter Sandman
• Neil Diamond - America
• Nine Inch Nails - March of the Pigs
• Nine Inch Nails - Mr. Self-Destruct
• Prince - Raspberry Beret
• Queen - We are The Champions
• Rage Against the Machine - Killing in the Name Of
• Red Hot Chilli Peppers
• Saliva - Click Click Boom
• Sesame Street - theme tune
• Tupac - All Eyes on Me
Surprisingly not all musicians are opposed to this use of their music, James Hetfield, co-founder of Metallica said in an NPR Music interview: 'There's a pride also. It's culturally offensive to [Iraqis], freedom. [...] If they're not used to freedom, then I'm glad to be a part of their exposure'. (At that point of the interview he does appear serious). Most musicians prefer to remain silent on this issue, hiding behind the fact that they don't have much control on their music once published. Reprieve lists above some musicians outraged by the use of music as torture. Also, the Society for Ethnomusicology condemns the use of music as an instrument of torture, and the Musicians Union is backing the Zero dB project. British singer-songwriter David Gray is one musician who openly condemned such use: 'It's shocking that there isn't more of an outcry. [...] It's disgusting, really. Anything that draws attention to the scale of the horror and how low we've sunk is a good thing.'
Intriguingly, the expression 'torture lite', used for music played at excruciating volume over and over, evokes a scale ranging from no torture to torture heavy. Andy Smith pointed out, in Orwell's Sound of Silence, that Orwell had found non-stop muzak, played even at low volume well below anything used by torturer, was enough to affect everyone's thoughts:
“On a pleasure cruise or in a Lyons Corner House one already gets something more than a glimpse of this future paradise. Analysed, its main characteristics are these:
- One is never alone.
- One never does anything for oneself.
- One is never within sight of wild vegetation or natural objects of any kind.
- Light and temperature are always artificially regulated.
- One is never out of the sound of music.”
Items one and two are recurring themes throughout Orwell’s writing—most notably in the concept of “Big Brother is watching” in 1984. However, it is the fifth item that bears further examination because, for him:
“The music—and if possible it should be the same music for everybody—is the most important ingredient. Its function is to prevent thought and conversation, and to shut out any natural sound, such as the song of birds or the whistling of the wind, that might otherwise intrude.”
Back in contemporary London, 'Live music is now a threat to the prevention of terrorism'; this according to UK Music chief Feargal Sharkey comminting on the implementation of a risk assessment policy for vetting live music. Organisers must complete Form 696 with personal details of all artists, music style to be played and some information on the audience. This form has to be sent to the police at least 14 days in advance.
Every time I write up a submission to yet another consultation I wonder whether it is worth the effort. Here are some of the consultations mentioned in this blog to which I sent in a contribution:
I suggested earlier: 'It's unclear how much effect responses to these many consultations do have, but as these are rare occasions when the public at large are invited to voice concerns you may want to take the time to go through the 60-page document and write to the Home Office. The number of responses generally positive or negative may be as important as the detailed content of the responses.'
The European Court of Human Rights judgement in S. and Marper v. UK should be an encouragement to everyone who made the effort to contribute to the Nuffield Council on Bioethics consultation. The resulting report is cited in the section on 'Relevant law and materials' (sections 38-40) and in the 'Justification for the interference; The Court's assessment' (section 116 and 124).
In Appendix 2: Wider consultation of the report, the Nuffield Council on Bioethics wrote:
A consultation was held between November 2006 and January 2007. A consultation paper prepared by the Working Group contained background information and questions for respondents to answer if they wished. The document was disseminated to individuals and organisations relevant to the field and it was also available online. Approximately 135 responses to the consultation were received; 76 per cent from individuals and 24 per cent from organisations.
The Working Group and the Council are grateful for such a diverse range of responses and found them to be insightful and useful.
Everyone who contributed to this consultation (the list is available in the report) has in a small and indirect way helped inform the Grand Chambers of the ECtHR when it looked into the case of S. and Marper v. UK. That was a consultation worthwhile to contribute substantively to!
Lord Steyn in the House of Lords ruling in S. and Marper v. UK ( UKHL 39) held that 'the increase in the database of fingerprints and samples promoted the public interest by the detection and prosecution of serious crime and by exculpating the innocent;' [Emphasis added]. The case of Kevin Reynolds contradicts this point.
Kevin Reynolds was first arrested in 2002, and the police took DNA samples from him. When he was acquitted, the Police retained his DNA samples and profile. Three years ago, Kevin was arrested a second time, this time on suspicion of murder. The police had DNA from the crime scene; if they had compared it to the DNA retained from Kevin's first arrest he would have been cleared immediately - but they didn't. See details in DNA retention of unconvicted people.
Kevin informed me that he just received the following letter, dated 2008-12-02, from SCD12 - AC Private Office and Business Services, Metropolitan Police:
Re: Request for deletion of fingerprints, DNA and PNC records
Dear Mr Reynolds,
I refer to previous correspondence regarding the above.
Your case has been subject to a review based on existing MPS records and the evidence and contention you have provided.
After consideration, Commander [name removed] (on behalf of the Commissioner), is of the opinion that your case should be treated as exceptional.
Based upon this, your records will now be destroyed
The deletion process takes a number of weeks to be fully completed, you will be informed when the deletion of all samples / records has taken place.
NB. fingerprints of an unsuitable quality would not have been retained.
for Commander - Operational Information, Intelligence and Learning, on behalf of the Commissioner
Congratulations to Kevin. As this letter is dated two days earlier than the ECHR judgement in S. and Marper v. UK, the decision in Kevin's case could not have been affected by this ruling. It is likely that Kevin is one of the last innocents in England and Wales who had to fight the Police, often over several years, to have a chance to be among the happy few couple hundred individuals to manage to get their DNA records destroyed each year. Now that the ECHR has found the retention of S. and Marper's DNA breaches human rights law, it should be much easier for innocents who have had their DNA taken by the police to get their DNA samples and profile destroyed. GeneWatch UK recommends that you write now to the Chief constable of the police force that arrested you to request your DNA records to be destroyed.
The DNA profiles of innocents held in the National DNA Database (NDNAD) are found, by the European Court of Human Rights, to be in violation of the right to respect for private and family life (article 8). About one in five of the more than five million DNA profiles will now have to go. The judgment of the Grand Chamber is final (article 44 in Protocol No 11) and the UK by being a signatory of the European Convention of Human Rights (ECHR) undertakes to abide by the final judgment (article 46 in Protocol No 11).
125. In conclusion, the 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 conclusion obviates the need for the Court to consider the applicants' criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data.
126. Accordingly, there has been a violation of Article 8 of the Convention in the present case.
This is a fantastic result after a seven year hard fought battle against the UK government. We are obviously delighted that the European Court of Human Rights found in our clients’ favour. It will be very interesting to see how the UK government respond. The government should now start destroying the DNA records of those people who are currently on the DNA database and who are innocent of any crime.
The decision - which will affect people aged ten or above who have been acquitted or had charges dropped following arrest in England, Wales and Northern Ireland - was welcomed by campaign groups involved in the case. [...]
"It is now up to the British people to stand up for their rights and demand strict rules to limit DNA retention", said Dr Wallace.
Home Office figures show that keeping DNA indefinitely from innocent people has not helped to solve more crimes.
We will study this judgment carefully and consider in detail implications which could have a profound impact on the way in which the police service makes use of DNA technology to protect the public and tackle crime.
The existing law would remain in place while ministers considered the judgment
I was interviewed earlier on by Andy Bell for Five News. It should be broadcast at 5pm and 7pm today as part a series of reactions to the ECHR judgement. [Update: the Five News programm will lead with another topic.] We discussed how I felt about the police taking and keeping my DNA, how difficult it was for me to get off the NDNAD and what I think about today's judgement.
This is a superb news for all the other innocents, including those who contacted me directly, desperate to get off the NDNAD. Now we're awaiting the practical details of when and how the DNA and fingerprint records of innocents already on the system will be destroyed.
Most readers of this blog are hopefully keen on promoting human rights. For the many based in London, join the discussions at the event organised by CAMPACC, the London Guantánamo Campaign, London Against Injustice and others on December 10th, the International Human Rights Day.
Why Human Rights? ...And Where Now?
On the 60th anniversary of the signing of the Universal Declaration of Human Rights (UDHR) creating a global framework for the protection of the rights of everyone, and in this climate of multiple crises, we invite you to consider: do we really have human rights? What's right and wrong with them? Can 'rights' help us respond to the challenge of reconstructing society; so that justice, mutual respect and equality prevail? And if so, what concrete actions must we now take?
The 10th December free event at the LSE looks to mark the 60th anniversary by finding ways to make human rights relevant to all, and not just activists, lawyers and academics. Asking the question: how can a broad civil rights platform encompass the full range of relevant social movements in Britain today? We will explore beyond civil liberties and individual rights to consider: what are humanity's essential, and collective economic, social, political and environmental rights, for which we must fight?
15:00-17:00 Pre-conference seminar: Prison and Society (LSE, Room H102, Connaught House Building, on Aldwych)
- Politics of Detention - Aisha Maniar, Hicham Yezza, Massah Barnett and others
- Land, Housing and Lebfevre's Right to the City - Professor Michael Edwards, Teresa Hoskyns, Dave Wetzel [tbc] and others
- Action proposals, discussion and preparing questions for the evening conference
18:00-19:00 Building a movement - Panel (LSE, New Theatre, Building E, Houghton St)
- Head of State Immunity - Peter Tatchell
- Academic Freedom - Hicham Yezza
- Public Services - Anne Gray
- Lebfevre's Right to the City - Teresa Hoskyns
- Housing - Michael Edwards
- with guest appearance from Vivienne Westwood
19:00-20:00 Keynotes (LSE, New Theatre, Building E, Houghton St)
- Civil Liberties - Professor AC Grayling
- War on Terror - Andy Worthington
- The Environment - Asad Rehman
20:00-21:30 Audience Q&A, discussion and action proposals (LSE, New Theatre, Building E, Houghton St)
Speakers, panellists and questioners may wish to consider the history of the UDHR - successes, failures, shortcomings, opportunities - under six broad themes: Culture, Development, Dignity and Justice, Environment, Gender and Participation. They may also wish to refer to the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) aswell as the EU Charter of Fundamental Freedoms (Charter) and recent UK Cabinet proposal for a Bill of Rights and Responsibilities (announcement & JCRH report on the proposal). And in respect of any or all of these, and the various crises we find ourselves in: what concrete actions must we now take?
We want to come out of the day with concrete, shared ideas about how to move forward the human rights movement after our 60-year experience with the UDHR, and more recently the ECHR and HRA. We have chosen the topics, speakers and panellists to provide the potential foundation for a movement based on liberty, dignity and justice for all in the UK and beyond. Furthermore, both the timetable and Q&A format are designed to leave sufficient space to discuss and plan future actions together. We would therefore ask speakers to plan their presentations accordingly: what collective actions we must now undertake? And we would ask participants to do the same in relation to any questions, comments or concrete proposals they put forward.
The European Court of Human Rights will deliver its Grand Chamber judgment in the case S. and Marper v. United Kingdom at 11 am next Thursday. S. and Marper v. UK is viewed as a test case about whether the UK is breaching human rights by retaining DNA samples and profiles, and fingerprints of unconvicted innocent people. The hearing of this case by is available to watch online. Last week, Vernon Coaker, Home Office minister responded in a Parliamentary debate that 'The [DNA retention] guidelines will need to be reviewed in the light of the outcome of the S and Marper case'.
4 December 2008
The European Court of Human Rights will deliver its Grand Chamber judgment in the case of S. and Marper v. the United Kingdom (application nos. 30562/04 and 30566/04) in a public hearing on Thursday 4 December 2008 at 11 a.m. (local time) in the Human Rights Building, Strasbourg.
The press release and the text of the judgment will be available after the hearing on the Court’s Internet site (http://www.echr.coe.int).
S. and Marper v. the United Kingdom
The applicants S. and Michael Marper, were born in 1989 and 1963. They are both British nationals who live in Sheffield (the United Kingdom).
The case concerns the retention by the authorities of the applicants’ fingerprints, cellular samples and DNA profiles after criminal proceedings against them were terminated by an acquittal or were discontinued.
On 19 January 2001 S. was arrested and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted on 14 June 2001. Mr Marper was arrested on 13 March 2001, charged with harassing his partner. His fingerprints and DNA samples were also taken. The charges were dropped following reconciliation with his partner and the case against him was discontinued on 14 June 2001.
Both applicants unsuccessfully requested that their fingerprints, DNA samples and profiles be destroyed.
The applicants complain about the retention of their fingerprints, DNA samples and profiles after an acquittal or discontinuance of criminal proceedings. They are concerned in particular about possible current and future uses of those data. They further contend that the retention casts suspicion on people who have been acquitted or discharged of crimes and that they should be treated in the same way as the rest of the unconvicted population. They rely on Articles 8 (right to respect for private life) and 14 (prohibition of discrimination) of the European Convention on Human Rights.
The applications were lodged with the European Court of Human Rights on 16 August 2004 and declared admissible on 16 January 2007. The Chamber to which the case was assigned decided to relinquish jurisdiction to the Grand Chamber on 10 July 20071. The Grand Chamber held a public hearing in the case on 27 February 2008.
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
1 Under Article 30 of the Convention, where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects.
From theory to personal experience in a week.
As reported on this blog, only a week ago in a Commons debate on the Counter Terrorism Bill, shadow immigration officer Damian Green when summing up the DNA retention guidelines expressed: 'It is interesting that when a person's data are entered on to the PNC, they are owned by the police.' Damian Green was arrested yesterday as part of a police investigation into official information leaks from the Home Office, apparently by counter-terrorism police "on suspicion of conspiring to commit misconduct in a public office and aiding and abetting, counselling or procuring misconduct in a public office." Nothing to do with terrorism.
The Met released the following statement:
The investigation into the alleged leak of confidential government material followed the receipt by the Metropolitan Police Service (MPS) of a complaint from the Cabinet Office.
The decision to make today's arrest was taken solely by the MPS without any ministerial knowledge or approval."
And Damian Green today read:
I was astonished to have spent more than nine hours today under arrest for doing my job.
I emphatically deny I have done anything wrong.
I have many times made public information that the government wanted to keep secret, information that the public has a right to know.
In a democracy, opposition politicians have a duty to hold the Government to account. I was elected to the House of Commons precisely to do that and I certainly intend to continue doing so.
Such a police raid on an opposition MP is unprecedented in the UK. It has not been said whether he had DNA samples (and fingerprints, palm prints and mug shots) taken when he was processed.
Parliament overturned by 277 votes to 209 a Lords amendment to the Counter Terrorism Bill 2008 which aimed 'to try to spark a national debate about the retention of samples and to inform the public about what information is being held on them'. Several MPs told stories of their constituents fighting the system in attempting to get their DNA off the National DNA Database (NDNAD). Reading through the several interventions, I find surprising how poorly briefed many MPs are on this very serious issue affecting millions of individuals in the UK.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
[...] The changes are necessary because of the worrying nature of the guidelines under which we operate. They are produced for the police, and go under the spectacularly opaque title "Retention guidelines for nominal records of the police national computer", which could almost have been designed to stop anyone finding out what the guidelines are for the use of DNA—a rather important term that the document carefully refuses to mention in its title. Frankly, the guidelines are draconian. They state:
"Chief Officers have the discretion to authorise the deletion of any specific data entry on the PNC 'owned' by them."
It is interesting that when a person's data are entered on to the PNC, they are owned by the police. The guidelines continue:
"They are also responsible for the authorisation of the destruction of DNA and fingerprints associated with that specific entry. It is suggested that this discretion should only be exercised in exceptional cases."
According to the guidelines, the discretion to destroy the information will rarely be exercised, which in itself is enough to raise eyebrows. The guidelines later state:
"In the first instance applicants should be sent a letter informing them that the samples and associated PNC record are lawfully held and that their request for deletion/destruction is refused".
Therefore, the standard guideline is, "Just say no, you can't have your records deleted." The last paragraph of this part of the guidelines states:
"It is not recommended that any proactive exercise is undertaken to determine potentially exceptional cases".
The police are therefore being told in their guidelines first that everything must be exceptional, and secondly that their first and standard response should be to say no. Indeed, elsewhere in the guidelines—I shall not detain the House by reading this out—is the standard template letter of refusal, in case the police cannot work out how to write a refusal letter. On top of that, they are instructed not to make any effort to tell people what they can do or what criteria they might have to fulfil to get their records out of the system. That approach is not satisfactory.
Compounding that, an example is given for those who want to know what an "exceptional case" is. It is the only such example in a 236-page document of what might be an exception. I shall quote it in full:
"For example, where a dead body is found in a multi-occupancy dwelling and the cause of death is not immediately obvious. All the occupants are arrested on suspicion of murder pending the outcome of a post mortem. All arrested persons are detained at the local police station and samples taken. It later transpires that the deceased person died of natural causes. No offence therefore exists, and all persons are released from custody."
That is the only example given in the guidelines of an allowable exception. The House will recognise that that is an absurdity and that the guidelines are clearly not an acceptable way in which to proceed.
This is a good summing up of the current situation (follow these links for a flowchart of the whole process and more details on getting off the NDNAD), but let's take a step back. These guidelines are issued by the Association of Chief of Police Officers (ACPO), a private company (hence not subject to the Freedom of Information Act). Should guidelines affecting so many individuals so intimately be decided by a private company behind closed doors?
Keith Vaz (Leicester East, Labour)
I do not disagree with anything that the hon. and learned Gentleman says. We do need a proper system, and the present system is totally inadequate. At the very least, if we had letters in reply to reasonable requests, providing information to the person who has asked for his or her profile to be removed, I could understand it. As it is, this is the first time that I have heard the guidelines as they were read out by the hon. Member for Ashford. I did not realise that although everyone is told that they have the right to have their DNA removed, it is only in very, very exceptional circumstances that it will be so removed. [emphasis added.] I am minded to vote for the Opposition's amendment, unless the Minister gives a clear sign to the House that the Government will radically alter the current guidelines on removal.
These retention guidelines replaced the 'ACPO General Rules for Criminal Record Weeding on Police Systems' on 2006-03-31 (according to the intro of version 1.3). They are the document describing what the Police are doing with our DNA. If you take out the cover page, blank pages, acknowledgment and the long lists offences, it's only 14 pages long of principles, guidelines, letter examples and flowcharts. (Most of the 236 pages, as mentioned above by Damian Green, is taken by Appendix 3, three long lists of offences.)
How come an MP attending a debate on amendments concerning the NDNAD has not read these 14 pages or been briefed about them? This is even more surprising for Keith Vaz considering he is the Chairman of the Home Affairs Committee and this Committee issued only last May a report including recommendations specifically about retention of the DNA profiles of innocents.
David Jones (Shadow Minister, Wales; Clwyd West, Conservative)
[...] In response to my request, I received a letter from the chief constable of North Wales police. The letter broadly followed the template that my hon. Friend the Member for Ashford mentioned—template A in appendix 2 to the ACPO guidelines. It followed the guidelines almost word for word, except that at one particular juncture the chief constable decided to ski off-piste. He said:
"The Criminal Justice and Police Act 2001 amended the Police and Criminal Evidence Act 1984, providing the police in England and Wales with the power to retain DNA samples and fingerprints, relating to persons following acquittal at court or other discontinuance of a case.
I must admit to being personally surprised by this decision and I am not sure parliament fully understood the implications of its decision. However, the Act is clear enough and I am bound to act by its provisions."
In other words, it would appear that the chief constable of North Wales police decided to enter the debate about the retention of DNA ahead of the House. He clearly thinks that the current legislation is nonsense. His letter continued:There is, therefore, almost no circumstance in which a chief constable will exercise that discretion, which is a lamentable state of affairs. Clearly, the present arrangements are opaque and unsatisfactory.
"If I were to exercise my discretion in this case, then I would have to exercise my discretion in similar cases, thus it would not be a rarity."
Section 82 of the CJA 2001 amends PACE 1984 so that 'samples may be retained after they have fulfilled the purposes for which they were taken'. It is not an obligation and chiefs of police forces can legally exercise their discretion in each case. Now the ACPO guidelines effectively give them a framework where exercising their discretion should be done only exceptionally: 'They have the discretion in exceptional circumstances, to authorise the deletion of any conviction, penalty notice for disorder, acquittal or arrest histories, "owned" by them'. Chiefs of Police for England and Wales forces exercised their discretion on average 222 times per year over 2005-2007.
Vernon Coaker (Minister of State (Policing, Crime & Security), Home Office; Gedling, Labour)
[...] The text of the amendment would require the Secretary of State to issue guidance relevant to all agencies holding DNA and fingerprint samples on the operation of their retention, use and destruction of fingerprints and samples. Let me say why the guidelines contained in the amendment are unnecessary. The rights of individuals from whom fingerprints and samples are taken by the police under PACE or under the Terrorism Act 2000 are already contained in guidance, including PACE codes C and D, the ACPO retention guidelines for nominal records on the police national computer, and guidance on subject access requests. However, let me say to my right hon. Friend and other hon. Members that I admit there is work to be done to publicise those rights more widely.
I undertake to work with the police to bring together the current guidelines covering the matters raised in the amendment, and to publish them more widely. The guidelines will need to be reviewed in the light of the outcome of the S and Marper case, and a PACE review is currently under way. However, I give my right hon. Friend an undertaking to ensure that the points that he and others have made are fed into the PACE guidelines review, so that we can improve the process.
Publicising the existing guidelines - especially among MPs - would be a good thing, but what is being asked by many including a majority of Lords, the NDNAD Ethics Group, the Human Genetics Commission, the Nuffield Bioethics Council, GeneWatch UK and Justice is a public debate with one possible outcome being to ensure that DNA profiles of innocents are not retained on the crime-related intelligence database that is the NDNAD.
Coincidentally, on the very same day, the Metropolitan Police Service Special Crime Directorate 12 (SCD12) issued version .2 of its 'Exceptional Case Requests - Consideration for the Removal of DNA, Fingerprints and PNC Records'. As its previous version (issued on 2008-06-27), these guidelines closely follow the ACPO ones. Slightly more interesting is the 'Roles and Responsibilities' section:
The Exceptional Cases Unit will process any request by preparing a report for the Commander for Operational Information, Intelligence and Learning for their consideration. This report will consist of information supplied by the applicant and the officer in charge of the case [or in some circumstances, the Criminal Justice Unit Manager]. The Association of Chief Police Officers [ACPO] designated Criminal Records Office will be contacted for their advice and recommendation.
So in the case of the MPS, the ACRO - an offshoot of a private company - will be consulted as to whether the case is exceptional enough that they don't feel they can refuse deletion.
If the decision to delete has been made, the Exceptional Cases Unit will contact the respective departments and agencies to ensure that the DNA, fingerprints and PNC records are deleted / destroyed accordingly. The Exceptional Cases Unit will send a response to the applicant notifying them of the decision of the Commander for Operational Information, Intelligence and Learning on behalf of the Commissioner. [...]
This is still very far from the process map SCD12 promised me. Which 'respective departments and agencies'? Does that include the private labs holding the DNA samples? How is the deletion of electronic records and destruction of physical samples tracked? etc. This still doesn't give much confidence that, in the few cases where the chief of police exercise his or her discretion, the samples and records are always properly removed.
There's more hope of progress and change in the retention of DNA material being pushed by institutions such as the European Court of Human Rights, the NDNAD Ethics Group, the Human Genetics Commission and other bioethics and human rights organisation than by either Parliament or the Police.
As mentioned last week, the Human Genetics Commission (HGC) ran a consultation to seek further views on the National DNA Database and on the issues highlighted by its Citizens Inquiry. The aim is to inform the development of the HGCs own conclusions and advice to Government. In the meantime, to have a better understanding of some of the issues associated with such a massive database retaining our most intimate information, here are some of the submissions:
You still have a couple weeks, until 2008-11-28, to respond to another consultation - this one from the Home Office - that includes some questions concerning Police taking our DNA, among other plans of police powers' increases: PACE review: government proposals in response to the review of the police and criminal evidence act 1984. The proposal introduces creating spaces to detain individuals in busy areas:
10.19 The problem is particularly acute in busy urban areas or major shopping areas. The volumes of suspected offenders means that the efficiency of custody throughput is severely impacted, often with people suspected of high volume, low level offences. A potential solution is to enable the police to make use of short term holding facilities (STHF) located in shopping centres or town centres. The STHF would be secure accommodation but would not equate to the standard cell design. The main function would be to confirm the identity of the suspect and process the person by reporting for summons/ charging by post, a penalty notice or other disposal. Persons detained would be subject to detention up to a maximum period of 4 hours to enable fingerprinting, photographing and DNA sampling. The STHF would not be considered suitable where an investigation was required and the use of such a facility would be subject to strict criteria on type of offence, age or other potential vulnerability of the person.
Dr Helen Wallace, Director of GeneWatch UK warned in a GeneWatch's response, "There are major safety issues with collecting DNA outside of police stations. Police powers to use 'reasonable force' to pull out someone's hair should not be exercised outside a place of safety. Expanding numbers of non-police staff also increase the likelihood that criminals will infiltrate the system and obtain the DNA of vulnerable persons whose identity needs to be protected".
A summary of responses will be published by the Home Office on its PACE Review update page.
It's unclear how much effect responses to these many consultations do have, but as these are rare occasions when the public at large are invited to voice concerns you may want to take the time to go through the 60-page document and write to the Home Office. The number of responses generally positive or negative may be as important as the detailed content of the responses.
I initially failed the security test of a network operator because I don't know my age!
I just called my mobile network operator to order a Porting Authorisation Code (PAC) from a phone, registered with this account, with the SIM I wanted the PAC for. I have been with this network operator since it started operating. After being asked, and successfully answering, questions such as two letters of the security password, my name, my date of birth (that, I remember by heart), the name of my family member using this SIM, the customer service representative then proceeded to ask for my age. I explained I needed to calculate it as it changes every year and I don't do birthdays, and after some rapid mental arithmetics gave her the requested number. This however didn't satisfy her as she considered that everyone must know their own age. She went on to volunteer that she does know her age, of course - though she didn't reveal it to me! That meant she had to ask me further security questions. It took a little while for her to figure out what other 'security' questions she could ask: how do I pay our bill, what's my sort code, what's the bank's name... I answered these as fast as she fired them.
Eventually she was satisfied enough to accept to send me a PAC to the registered address for the account (SMS to the phone was not possible). A PAC has a lifetime of 30 days starting from the request time, not from when it is received by the customer. If it is not used during this short window, nothing happens; the accounts remain with the original network as if nothing had ever been requested. I.e., the risks for sending a PAC to an address registered with the account is nil.
When/if the National Identity Register becomes a reality I expect all network operators to interface to it so their customer representatives can ask ever more detailed and intrusive questions.
The Human Genetics Commission ran a consultation to seek further views on the National DNA Database and on the issues highlighted by its Citizens Inquiry. The responses are to inform the development of the HGCs own conclusions and advice to Government. This consultation finishes today. Below are my answers.
1. What information should be given to people when a DNA sample is taken following their arrest?
When a DNA sample is taken following an arrest, individuals should be fully informed of at least:
a/ all the allowed uses of their DNA samples and profile (profile
matching, criminal proceedings, research projects, etc.)
The current restriction that the bioinformation is to be used only for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution is so broad that it can easily be interpreted to allow uses that have not much to do with criminal justice.
b/ details of the data controllers for the NDNAD and the lab holding the samples - so the sampled individuals know who they can send data subject access requests to.
c/ the retention periods for the samples and profile.
d/ the procedure to attempt to have their profile deleted and samples destroyed.
As this information is complex, will often be communicated at a time when concerned individuals will likely be vulnerable and will mostly be useful later than at time of arrest, it should be provided in written form in a short leaflet. A summary, including uses, should be communicated verbally before the samples are taken.
2. In what way should the National DNA Database be populated?
To be able to answer this question it has to be made clear what is the role of the NDNAD.
The NDNAD should be considered for what it is: a crime-related intelligence database. This position has been stated by both the NDNAD Ethics Group (in its first annual report) and the Human Genetics Commission (in the findings the Citizens’ Inquiry into the Forensic Use of DNA and the NDNAD), however the NPIA claims that "The NDNAD is not a criminal records database. It holds very little information about a subject's identity - only their name, date of birth, sex and ethnic appearance. Inclusion on the DNA database does not signify a criminal record, and there is no personal cost or disadvantage by being on it" (in an FOIA response).
The current criteria for collection (sampling all CJ arrestees suspected of committing a recordable offence) and retention of bioinformation (forever) are not proportionate. (It is interesting to note that the retention period is unclear as conflicting, and confusing, statements have been issued ranging from the first time the individual reaches 100-year old, to the time of his death, to no limit; the latter being the most commonly mentioned).
For investigatory purpose, the police should be able to take DNA samples only from individuals who are charged, after they have been charged.
For elimination purpose, on a voluntary basis exclusively with revocable informed consent, the police should be able to take DNA samples from victims and witnesses on the express condition that no DNA profile is stored on the NDNAD and that the DNA samples and profiles are destroyed preferably after their use and at the latest at the end of the investigation for which they have been taken.
3. What, if any, profiles, other than those relating to individuals convicted of a criminal offence, should be retained indefinitely (or for periods of many years) on the NDNAD?
Retention period of DNA profiles should be limited as to not criminalise innocents. An additional risk is that the NDNAD holds information on the conviction status of individuals and this may be inaccurate (personal example). A further risk is that the data held in the NDNAD may be leaked through for example illegal access or transfer to organisations with even less safeguards (such as information sharing with other countries).
DNA profiles of individuals who have been charged should be retained for a limited period. The retention period should by default end when the sentence has been spent. This period could be extended for serious criminal offences for a limited time, possibly by a judge, in cases where for the offence committed there's a high repeat offending rate. The retention period must be proportionate to the offence and the sentence.
It is not proportionate to retain the DNA profile of volunteers. When samples are volunteered, as explained in the response to question 2, they should be destroyed preferably after their use and at the latest at the end of the investigation for which they have been taken. There should not be the need to upload the profile of such samples; if an exceptional need does occur then retention of the profile should at the longest be for the duration of the investigation for which they have been volunteered.
Crime scene profiles should be retained for as long as the crime has not be solved and there is no limitation.
4. In what circumstances, and for what reasons, should DNA be retained from individuals whose profiles are recorded on the database?
DNA samples contain so much of an individual's intimate genetic information that it is essential to limit the retention period to prevent future misuse when technological and scientific progress in DNA analysis happens. Once a profile has been uploaded to the NDNAD, the samples should be destroyed. My understanding is that to be admissible in court another DNA sample is always taken from individuals being prosecuted making it even less justifiable to retain DNA samples.
5. What evidence would be required to demonstrate the ‘forensic utility’ of the NDNAD?
It is difficult to establish an effectiveness criteria as the NDNAD is only one of many tools used by the Police. One way to demonstrate the ‘forensic utility’ of the NDNAD would be to show that it increases the likelihood of convicting criminals while either reducing or not increasing the chances of misidentifying innocents as suspects or even worse resulting in miscarriages of justice.
To keep retaining DNA profiles and samples of innocents, evidence must be shown that retaining DNA profiles and samples of innocents makes a significant difference in detecting and prosecuting criminals.
The retention of DNA from crime scenes appear to have a much better 'forensic utility' than the retention of DNA from individuals. The Home Office explained: "Evaluation of the Programme has shown that the number of matches obtained from the Database (and the likelihood of identifying the person who committed the crime) is 'driven' primarily by the number of crime scene profiles loaded onto the Database". Helen Wallace provides further analysis of the data available and concludes that "the success of the Database is determined largely by the number of DNA profiles collected from crime scenes, not from individuals".
A much larger public debate needs to take place.
6. What will be the likely social impact of maintaining the database at current levels or expanding it substantially?
The expansion of the NDNAD is not proportionate.
Too many DNA profiles of innocents are already on the NDNAD: 14 to 21% of the individuals sampled by the England and Wales forces are innocents. This victimises innocents and is a breach of privacy.
The bias of having an over-representation in the NDNAD of individuals from some minorities (e.g., black males) compared to other groups is not acceptable. It shows likely prejudice by the Police (as they're the ones deciding when to take DNA samples) and it further criminalises the over-represented communities.
Experience has shown that the police - and the labs they employ - can't be trusted to limit their use of our bioinformation to those that are appropriate: leaks from supposedly secure and restricted databases such as the PNC are known to have happened, and it was revealed in FOIA requests obtained by the Observer and Genewatch that there already are likely illegal uses of the retained DNA by one of the processing labs used by the police.
A criminal database on which it is too easy to get on, with bias and from which it is near impossible to get off will be increasingly rejected as individuals resent being put on it for often no apparent good reason. In the current situation one would be most foolish to volunteer one's DNA.
7. What governance arrangements are necessary to secure confidence in the acceptable and appropriate management and use of the NDNAD?
An oversight committee should be created, not just in an advisory role, but with powers to act. This committee should be able to receive complaints from the public. It should be composed of a minority of involved parties (Police, Forensic Science Service, etc.) and a majority of independent members (Genewatch, Nuffield Council on Bioethics, etc.) with the chairperson being an independent member.
The creation of the NDNAD Ethics Group was a step in the right direction but it does not take any direct input from the public and its powers appear limited.
Public involvement through debate and representation in oversight is lacking.
8. What further uses might it be appropriate to make of the genetic information collected for the NDNAD in the future?
Any further use must be reviewed in a transparent manner. Today it is not even possible to find out if one's DNA has been used in a research project.
For one's DNA samples or profile to be included in any non forensic use, outside of the limited use to be communicated to those sampled, must require an informed opt-in consent. Consents should be revocable.
Familial searching is not proportionate, as again it will involve many innocents. This is an obvious and unwarranted invasion of privacy. Revealing genetic familial relationships not always known by family members is a clear breach of privacy that is unethical. This type of research has in the past been associated with eugenics, racism and discrimination.
Any new use should be publicly debated.
9. Are there circumstances in which it might be acceptable for information contained on the NDNAD to be shared or linked, perhaps anonymously, with other agencies or databases?
For bioinformation sharing to be acceptable, mechanism must be in place so that shared data is kept in sync. In particular, when a profile is deleted in the NDNAD it must be deleted wherever it has been shared. Obviously any sharing should only happen if the use of the shared profiles is a subset of the allowed use of the profiles in the NDNAD. Independent oversight of data sharing must be in place.
Safeguards for exchanges of bioinformation with police forces from other countries are unclear and standard data protection measures such as data correction are too often not required.
Any data sharing also imply that more individuals will have access to the DNA profiles further increasing the risk of information leaks.
10. Under what conditions or in what circumstances might arguments for an universal DNA database be persuasive?
A universal DNA database is not proportionate to the need of the criminal justice system in a democratic society. Furthermore current data seems to indicate that this would not increase the detection rate (see response to question 5).
DNA contains very personal intimate genetic information, and technological and scientific progress may help reveal more information from a DNA samples than is currently possible. The temptation to use new techniques on the NDNAD may become too tempting to the Home Office, the Police and the DNA labs. The risks would be even greater if we ever get a Government keen on misusing bioinformation to further restrict people's rights and freedoms.
The National DNA Database (NDNAD) keeps growing: it now hols more than five million DNA profiles of individuals. Getting off the database, if you have been sampled by England or Wales forces, remain as unlikely as ever. And it remains difficult to make sense of the stats bandied at us, with the press quoting wildly differing figures. So we decided to investigate.
In August, the Daily Mail reported that "4.5 million genetic profiles [are] on record. Up to 1.5 million - or a third of these - are from innocent people".
In another article on the same day, the Mail reported "[t]he figure of 573,639 people on the database who have not been convicted, cautioned, formally warned or reprimanded has pushed the overall total to 4.2 million."
This is an extreme example of the difficulty of making sense of statistics concerning the NDNAD. Our first step was to find source data.
In May 2007 the National Policing Improvement Agency (NPIA) started to administer the NDNAD. We'll use data obtained in a recent response to a Freedom of Information request to the NPIA to get some sense out of the data and figure out what are all the implied assumptions.
Data from the NPIA is authoritative, but the organisation's view of what is the NDNAD is a matter of opinion. The NPIA claims that "The NDNAD is not a criminal records database. It holds very little information about a subject's identity - only their name, date of birth, sex and ethnic appearance. Inclusion on the DNA database does not signify a criminal record, and there is no personal cost or disadvantage by being on it".
The National DNA Database Ethics Group and the Human Genetics Commission both consider the NDNAD to be a crime-related intelligence database. Recent findings suggest that composite statistics do not mask identity within genome-wide association studies and that DNA profiles previously considered anonymous and not containing genetic markers may reveal much more than was thought.
Often assumptions are made about the data; and these may not be the same for different sets of data. The NDNAD includes profiles of DNA samples taken by forces from England, Wales, Scotland and Northern Ireland, but often figures given in Parliament or in the press are only for samples taken by the England and Wales forces.
The NDNAD includes DNA profiles of the DNA samples taken from individuals and profiles of the DNA found at crime scenes. Here are figures up-to 2008-09-01.
|(At 2008-09-01)||England & Wales forces||Other forces|
|Total number of subject profiles||4,969,225||327,088|
|Estimated total number of individuals||4,319,807||273,358|
|Total number of crime scene profiles||320,335||13,749|
The subject profiles consist of both profiles of DNA samples taken from individuals following arrest for a recordable offence, known as criminal justice samples, and profiles of subjects who volunteered a DNA sample (whether those that do so are sufficiently informed before they give their consent is an issue that was raised during the presentation of the Nuffield Council on Bioethics; the NDNAD Ethics Group has been discussing the volunteer consent form for DNA sampling and accompanying information), for example, for elimination purpose.
Another source of confusion is that the number of subject profiles on the NDNAD is higher than the estimated number of individuals on it. This is often misrepresented. It happens because some of the profiles held are replicates. Multiple samples are taken from the same subject and profiled when on different occasions there's confusion concerning the person's name. Replication also happens when the police decide to resample an individual. The number of replications is estimated at around 13 per cent (it varies over time and between police forces).
A common question is how many of these individuals are innocents. This is particularly difficult to find out.
First, the National DNA Database was allegedly never set up to record this information; this is in the Police National Computer (PNC).
Second, what is meant by innocent is not always consistent; the obvious definition of all those never charged and those acquitted may not map directly to the information available. The NPIA ran a report on 2008-03-31:
|(At 2008-03-31 for England & Wales forces)||Total individuals||Percentage of total|
|With a conviction, caution, formal warning or reprimand||3,259,347||79%|
|No conviction, caution, formal warning or reprimand listed||573,639||14%|
|Not known as PNC record removed||283,727||7%|
|Estimated total number of individuals||4,116,713||100%|
From the above table it can be deduced that, as of March 2008, there were DNA profiles for at least 573,639 innocent individuals and possibly for as many as 857,366 innocents. Fourteen to 21 per cent of the sampled individuals recorded in the NDNAD are innocent. Furthermore, that does not take into account any mistakes in the PNC.
What happens to the DNA samples and profiles of all those innocents? Most of them are kept and retained forever. The procedure to get off the NDNAD is complex and assume that one case is considered exceptional enough to justify such a procedure in the first place.
See El Reg's How to delete your DNA profile for more on this. (Note that the only process map the Metropolitan Police has published since is a rehash of the usual guidelines and the Specialist Crime Directorate 12 wrote that '[t]here is no additional information I can supply on this subject'.)
|Subject profiles removals||2003||2004||2005||2006||2007||2008 (adjusted)|
|England & Wales forces||677||34||81||271||310||222|
The huge difference in numbers between removals of samples taken England & Wales forces and by other forces is due to differences between English & Welsh and Scottish laws. DNA profiles and samples of innocents taken by Scotland forces can't be kept forever.
Whether England and Wales forces can keep stalling on the removal of DNA profiles (and destruction of DNA samples) of innocents has gone all the way to the Grand Chamber of the European Court of Human Rights:
"The [Marper and S v. UK] case concerns the decision to continue storing fingerprints and DNA samples taken from the applicants after unsuccessful criminal proceedings against them were closed." The hearing was in February and the ruling will be given later this year. (Note that the adjusted figure for 2008 is based on data up to September adjusted for the rest of the year.)
I did not request the data for calendar additions to the NDNAD, but to put things in perspective, the yearly average number of subject profiles added to the NDNAD for the the financial years 2005-07 was 711,645 (NPIA NDNAD Annual report data). For England and Wales forces it was 646,767 (John Reid in Parliament written answers).
Profiling at a young age
There's particular concern as to how many young individuals are included in the NDNAD. Depending on whether you consider the NDNAD as a criminal database, being included in it at a young age is worrying.
|(At 2008-09-01)||England & Wales forces||Other forces|
|Total subject profiles from 10-17 year old||343,745||10,671|
The England & Wales forces again lead in in their aggressiveness to sample DNA. Six pe rcent of all the profiles in the NDNAD were taken by other forces, but only three percent of the DNA profiles of subjects 10 to 17 years old (when the report was ran) was for samples taken by other forces.
The NPIA last ran a more complete report concerning 10-17 year-olds on 2008-04-10:
|(At 2008-04-10 for England & Wales forces)||Total individuals||Percentage of total|
|With a conviction, caution, formal warning or reprimand||264,297||87%|
|No conviction, caution, formal warning or reprimand listed||39,095||13%|
|Estimated total number of individuals||303,393||100%|
(The number of those with a PNC record is one less that the estimated total number of individuals. The NPIA did not state if there's one youngster with a PNC record already removed, which is unlikely or whether this should be viewed as a statistical error). From the above table, it can be seen that at least 39,095 innocent youngsters are affected.
If you happen to live in England or Wales, being young or innocent, or both, is not enough to ensure you won't be captured in this massive database. ®
It can be argued that retaining DNA profiles of individuals is not even effective in solving crimes. Helen Wallace, from GeneWatch, debunked this assumption last year when looking at who should be on the NDNAD:
"Collecting more DNA from crime scenes has made a big difference to the number of crimes solved, but keeping DNA from more and more people who have been arrested - many of whom are innocent - has not. Since April 2003, about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA has remained constant, at about 0.36%."
(Two days ago, the Lords voted in favour of an amendment to the Counter Terrorism Bill, which aims 'to try to spark a national debate about the retention of samples and to inform the public about what information is being held on them'.)
The BBC in its Monday's coverage of the inquest into the death of Jean Charles de Menezes picked up on a comment made by another passenger, that he looked almost calm. This is in fact the second time during the inquest that someone commented de Menezes was calm.
First time was in the statement of Vivien Menezes, Jean Charles's first cousin:
[...] He was a calm individual and always behaved reasonably and was polite to the police. [...]
And on Monday when Anna Dunwoodie, a passenger in the same row of seats as Jean Charles de Menezes was answering a question from Mr Jonathan Hough (on behalf of the Coroner)
Q. You also say that you could see the expression on the man's face who actually had the gun pointed at his neck, that's Mr de Menezes; can you remember anything about that expression now?
A. I remember that his eyes were closed and I remember that he had ... you know, it's a hard thing to try to explain but his eyes were closed and he looked almost calm, which again I hesitate to say that, but ... I guess he had a gun pressed, and there wasn't very much he could do about it.
As you hopefully noticed I settled as the title for this blog on an excerpt from the custody record filled in after my arrest:
RISK ASSESSMENT: DP [detained prisoner] is calm on arrival [at the station], almost too calm.
What's so unusual, disturbing or noteworthy about remaining calm?
(The bold is my emphasis.)
Last Saturday was the tenth annual gathering of the families and friends of those who have died in custody in the UK. There was a silent march from Trafalgar Square to Parliament Square. It stopped by Downing Street for families to put pictures and flowers by the gate to Downing Street, they weren't allowed inside and the flowers were checked by Police officers. The march was followed by some talks. I learnt that the last time a Police officer was convicted following a death in custody was for assault charges in 1971 for a death that occurred in 1969. Nearly fourty years ago. This was for the death of David Oluwale. A few years ago, the film Injustice, documented deaths in custody - mainly black deaths - over a six-year period (it doesn't seem to be available anymore unfortunately).
According to the United Families and Friends Campaign, 182 individuals have died in custody in the last twelve months. The image on the left (click it for a more readable pdf) lists 2,533 individuals who have died since 1969 in the care of the Police, prisons, secure psychiatric units and immigration detention centres. The list is not complete as more died in such circumstances whose name is not known. Inquest also maintains a table of unlawful killing verdicts and manslaughter prosecutions in prison and police custody or pursuits since 1990.
Several persons asked me what's happening to the inquest into the death of Jean Charles de Menezes. It started on 2008-09-22 and is expected to last three months. The family maintains a website on the inquest, it includes a blog and directions if you want/can attend part of the inquest at the Oval. The Coroner also maintains its own website, remarkably it includes transcripts of all the open court proceedings. The transcripts tend to be around 200 pages per day, so it can be a bit daunting to go through though them. If you don't have the time to read any transcript in full, I'd recommend reading a few of the cross examinations by Michael Mansfield QC, representing the de Menezes family (search for 'Mansfield' in the transcripts). In addition to the press reports, UKLiberty runs a series of posts with very good summaries. I have been surprised by what seems to be a lack of common sense, which appear very unprofessional, such as not getting a detailed map of the location or for only a few officers to carry the picture of the suspect they were looking for. What I find worrying is for some officers, even now with three years of hindsight, to consider that nothing went wrong, that they didn't make any mistake, and it could happen again. For instance:
MR Mansfield: On that basis, there is a real risk, then, it could happen again.
D/Su Boutcher: There is, sir, yes.
MR Hilliard: [...] What went wrong?
DAC Dick: [...] If you ask me whether I think anybody did anything wrong or unreasonable on the operation, I don't think they did.
Mr Mansfield: [...] In consequence of one officers' reply to this jury, I asked him bluntly whether he thought it could happen again and he said yes. Do you say the same?
DAC Dick: I am afraid, sir, I do believe that this or something like this could happen again. [...]
To end on a more positive note, it is fascinating to have the possibility (time being the main limiting factor here) to follow this inquest in such details. This level of openness and transparency is welcomed and appreciated.
You can’t assume the scope of a law from what the government promises or its title:
The Government used anti-terrorism powers to freeze an estimated £4 billion of British financial assets in Landsbanki, Icesave’s parent bank. A spokesman for the Treasury said that the 2001 Anti-Terrorism, Crime and Security Act was invoked as a “precautionary measure”. (The Times)
“I won’t try to hide my surprise and disappointment when it became clear that the British government enforced the laws on defence against terrorism against Icelandic companies in the UK. Laws that were indeed very controversial when they were passed because of the inherent possibility of being abused in alternative situations, not involving terrorism at all. Perhaps we have now witnessed how that controversy was warranted.”
“These measures, along with the statements of the British PM, with whom I have by the way had very friendly relations, coupled with his statements about the defaulting and possible national bankruptcy of Iceland, can in fact be interpreted as an assault against the interests of the Icelandic nation, bearing in mind the difference in size and power between these two nations,” said Haarde.
He added that despite the fact that the British government had acted on the assumption of right against the Icelandic government over collateral and settlement of some bank accounts, the initiative of the British ministers had been completely out of proportion with the issues.
“We neither can, nor will (Icelanders), accept being cast as terrorists by the British government. When I asked the British Minister of Finance, in our conversation if they were serious about the title they were giving us, he denied it. But acting in this fashion against a smaller nation of friends in times of trouble is neither proper nor ethical,” said Haarde. (IceNews)
As UK Liberty puts it: ‘Promises that a law will only be used against terrorists are worthless. What matters is what the legislation itself says. We have problems if legislators don’t understand how legislation works.’
The government promised that measures in the Counter Terrorism Bill 2008 such as further extending detention without charge to 42 days or having secret inquest would be used only exceptionally. Thanks to the Lords these measures have been dropped from this bill. These are positive news but there are still many other unjust proposals remaining in this bill. Here's a list, based on work by CAMPACC, of some of these proposals:
Another unjust proposal in the Counter Terrorism Bill is to covertly collect DNA samplings and retain DNA profiles in a ‘CT [counter terrorism] DNA database’ - distinct from the National DNA Database (NDNAD) and most likely illegal unless this Bill passes. (DNA profiles of innocents were retained on the NDNAD before it became lawful to do so.). Spy Blog commented in a post analysing the Lords debate on this section: ‘That is an extremely dangerous power, to covertly enter premises and steal a DNA sample, without the person's consent or knowledge, and then to analyse it, again without consent. This must only ever be done under the most exceptional circumstances, under the strictest, independent safeguards, and with provisions for correcting the inevitable mistakes, none of which exist in this Bill.’
Lord West recognises that such provision in the Counter Terrorism Bill is not intended to be restricted to counter terrorism:
[T]he provision applies to samples otherwise lawfully obtained in the interests of national security for the prevention/detection of crime, the investigation of an offence, the conduct of a prosecution or for purposes related to the identification of a deceased. Such latter material might include material obtained during a criminal investigation other than through the exercise of covert powers—for example, during a search, from a crime scene or lawfully provided by a body other than another law enforcement authority, perhaps from the intelligence services of another state. (TheyWorkForYou)
Measures buried in a bill will be used to the extent described in the text of the bill. Not all measures in a bill against terrorism have much effect to make us all safer from terrorist actions. More proposals remain to be removed from the Counter Terrorism Bill 2008.
Key findings of the independent think tank Reform in The lawful society report:
- There has been a shift in responsibility in the criminal justice system, away from the individual and towards centralised institutions, demonstrated by 76% of Britons believing that the police and courts are responsible for controlling anti-social behaviour, compared to around 45% in France and Germany.
- Six out of ten people in Britain would be unlikely to challenge a group of 14 year old boys vandalising a bus shelter in the UK, more than Germany, the Netherlands, Italy, France Spain and the UK. In Germany, six out of ten would challenge the group.
- British people are more worried about crime and violence with 43 percent reporting it as one of their greatest concerns compared to 21 percent in Germany and 27 percent in the US.
- The UK spends the largest amount in the OECD on law and order as a percentage of GDP, with nearly 40% more in real terms spent in 2006/07 than in 1997/98. This is higher than the US, double that of Sweden, France and Denmark and around 50% greater than that of Canada, Germany and Japan.
- Administration costs across the criminal justice service have risen by around 10% since 2002/03 – faster than frontline expenditure, which has risen by 7% since 2002/03.
- International comparison shows that criminal justice is most effective where it is close to the public and has strong local accountability.
The Telegraph reveals that councils are recruiting, and paying, informers to snoop on their neighbours:
The youngsters are among almost 5,000 residents who in some cases are being offered £500 rewards if they provide evidence of minor infractions.
One in six councils contacted by the Telegraph said they had signed up teams of "environment volunteers" who are being encouraged to photograph or video neighbours guilty of dog fouling, littering or "bin crimes".
The "covert human intelligence sources", as some local authorities describe them, are also being asked to pass on the names of neighbours they believe to be responsible, or take down their number-plates.
(Henri Porter's latest column, Our obsession with crime is crushing our freedoms, comments on these news tidbits.)
What you publish today, what you give to others - who may store it in a database and then lose it (just look at all the hard disks, laptops, USB keys recently lost by the Government and banks) -, what is obtained on you (through surveillance or sousveillance) or what information you reveal when achieving some specific goals such as a search query (see Gregory Conti's Could Googling take down a president?) or posting a geo-tagged picture (see Jan Chipchase's Great to see you. Just not around here) may haunt you when you least expect it. It can be reused in a different context, you need to share your health data with your GP, you may be ok sharing it on the NHS Spine (if not see the Big Opt Out how-to), but you're unlikely to want it widely available to insurers. It can also resurface years later in a completely different context such as a potential employer or spouse checking on you.
Living as a hermit recluse from society is not an option, at least not for most of us so we should look for other ways to tackle this issue which will grow in severity. You can't avoid surveillance, sousveillance and unanticipated use of information leakages, but you do have the choice of making it worse by blindly adopting the wisdom of the techno utopian crowd and actively share your life with the world. Twittering your minute actions (surely the only thing you should ever twitter is 'I'm posting a twit'?), upload in near real-time your geo-located pictures, stream live your latest ramblings, dribble a stream of (un)consciousness on your blog (and repost your twits on it), etc.
Forgetting is difficult. We all have a tendency to retain things 'just in case' and even if you do decide to delete some data, as it is copied, cached, backed up, etc., how can you be sure you've effectively destroyed all traces of it? For example, this is a question with no answer for the few people managing to get off the National DNA Database. The issue was highlighted in a recent a CTO storage roundtable feature (published in the August 2008 issue of Communications of the ACM) exploring near-term challenges and opportunities facing the commercial computing community:
MACHE CREEGER: Now that we all agree that there should be a way to make information have some sort of time-to-live or be able to disappear at some future direction, what recommendations can we make?
MARGO SELTZER: There's a fundamental conflict here. We know how to do real deletion using encryption, but for every benefit there's a cost. As an industry, people have already demonstrated that the cost for security is too high. Why are our systems insecure? No one is willing to pay the cost in either usability or performance to have true security. In terms of deletion, there's a similar cost-benefit relationship. There is a way to provide the benefit, but the cost in terms of risk of losing data forever is so high that there's a tension. This fundamental tension is never going to be fully resolved unless we come up with a different technology.
ERIC BREWER: If what you want is time to change your mind, we could just wait awhile to throw away the key.
MARGO SELTZER: The best approach I've heard is that you throw away bits of the key over time. Throwing away one bit of the key allows recovery with a little bit of effort. Throw away the second bit and it becomes harder, and so on.
ERIC BREWER: But ultimately you're either going to be able to make it go away or you're not. You have to be willing to live with what it means to delete. Experience always tells us that there's regret when you delete something you would rather keep.
(An unexpressed assumption in the dialogue above is that the cryptographic algorithms used will never be broken.)
One approach is to adopt what has worked sufficiently well for other issues. This is the conclusion reached by Daniel J. Weitzner, Harold Abelson, Tim Berners-Lee, Joan Feigenbaum, James Hendler, and Gerald Jay Sussman in Information Accountability (published as an MIT Computer Science and Artificial Intelligence Laboratory Technical Report in June 2007):
[I]nformation accountability through policy awareness, while a departure from traditional computer and network systems policy techniques, is actually far more consistent with the way that legal rules traditionally work in democratic societies. Computer systems depart from the norm of social systems in that they seek to enforce rules up front by precluding any possibility of violation, generally through the application of strong cryptographic techniques. In contrast, the vast majority or rules we live by have high levels of actual compliance without actually forcing people to comply. Rather we follow rules because we are aware of what they are and because we know there will be consequences, after the fact, if we violate them, and we trust in our democratic systems to keep rules and enforcement reasonable and fair. We believe that technology will better support freedom by relying on these social compacts rather than by seeking to supplant them.
Data protection legislation, only available in some countries, is such an example. It requires organisations that collect personal information to state the purposes of use and not to keep the data longer than necessary. Unfortunately, information commissioners often do not have enough resources or enforcement power to make consequences of breach serious.
This month is the 25th birthday of the GNU project that led Richard Stallman to write the GPL and LGPL free software licenses. This has been a very successful use of legal compacts to ensure a set of freedoms for software users. We need to figure out and negotiate what set of societal rules we must follow to ensure information accountability.
Terence Eden streams live from his mobile phone being stopped and searched under Section 44(2) of The Terrorism Act 2000, without the need for any reasonable suspicion, at Waterloo station on 2008-08-19. (Length: 18 minutes 46 seconds.)
Omar Ahmet, an innocent man, arrested at gunpoint. He is white, the police were after a wanted black terrorist. This happened in Liverpool on 2005-07-27, six days after the shooting of Jean Charles de Menezes, and the day before my stop and search and subsequent arrest. (Length: 33 seconds.)
Rizwaan Sabir a student at the University of Nottingham was arrested on 2008-05-14 under the Terrorism Act 2000 and detained for six days without charge for having downloaded a document called the al-Qaida Training Manual, from a US Department of Justice website, for his PhD. He speaks about the 'psychological torture' his experience was. (Length 2 mins 16 seconds.)
Hicham Yezza was arrested with Rizwaan Sabir under the Terrorism Act 2000 and then re-arrested on immigration charges. He recounts how Britain's terror laws have left him and his family shattered (in the comments he adds some clarifications and some further ones).
26. The Committee notes with concern that the offence of “encouragement of terrorism” has been defined in section 1 of the Terrorism Act 2006 in broad and vague terms. In particular, a person can commit the offence even when he or she did not intend members of the public to be directly or indirectly encouraged by his or her statement to commit acts of terrorism, but where his or her statement was understood by some members of the public as encouragement to commit such acts. (art.19)
The State party should consider amending section 1 of the Terrorism Act 2006 dealing with “encouragement of terrorism” so that its application does not lead to a disproportionate interference with freedom of expression.
It is what follows – and the entire thrust of the law - that is questionable. First, the law: If you possess dodgy material, it is for you to explain why. Parliament could have legislated the other way around - it could have made it a crime to possess such material “with intent”. But it didn’t, so now you must prove yourself innocent.
Following Mr Sabir’s release, the police wrote to him. Allegedly, they warn that he risks re-arrest if found with the manual again and add: “The university authorities have now made clear that possession of this material is not required for the purpose of your course of study nor do they consider it legitimate for you to possess it for research purposes.” [...]
What the Police appear to be saying is that you can be given the all-clear as a bona fide researcher of terror material in the morning – then re-arrested the same evening for the same offence. Surely not, one might think, but that possibility is within the bounds of the Law.
It doesn’t help that the list of materials that could assist a terrorist is very wide. It would certainly encompass broad swathes of chemistry, physics and biology – as well as current military training. This has therefore provoked the accusation, in some quarters, that the Act is likely to be applied in a selective and racist fashion – with individuals whose skin is not quite white being far more likely to be asked to justify what is on their bookshelves or hard drive.
There is no law in this country that prevents people from taking photographs in public. None the less, Amateur Photographer magazine receives dozens of reports per month from readers who have been stopped and searched by police officers who seem to think otherwise. 'Sadly, many amateurs are not aware of their rights and are resigned to their fate,' says the magazine's news editor Chris Cheesman. 'Once they are stopped, and their name taken, the police have a record. And we only hear about those who are prepared to kick up a stink about it - there are sure to be many others that go unreported.' [...]
Vague laws being enforced by inexperienced officers makes for a dangerous combination. But while officers can be given clearer directives and stricter guidelines, it might be harder to calm the fears of an increasingly sensitive general public. 'I think the public are suspicious of people with cameras and the police sympathise with them,' says Stephen Carroll.
Some related posts:
The National DNA Database Ethics Group published its first annual report. It contains 11 recommendations. Two of these make it clear that the National DNA Database (NDNAD) is a ‘crime-related intelligence database’ (as opposed to an identity database). This implies that there is indeed stigma of being included in the NDNAD:
Recommendation I: Consideration should be given to further public clarification of the role of the NDNAD and reinforcement of the message that it is intended only to be used for criminal intelligence.
Recommendation J: Consideration should be given to formally announcing publicly that the NDNAD will only be used for the currently described purposes (i.e. criminal intelligence) and will never transform into a repository for the whole nation’s DNA characteristics.
Two other recommendations show the Ethics group wants it much easier for innocents to get off the NDNAD:
Recommendation G: A clearer, simpler and less cumbersome process needs to be put in place to enable those who wish to appeal against the decision of a Chief Constable to retain their DNA profile on the NDNAD.
Recommendation H: Consideration should be given to reviewing the definition of ‘exceptional circumstances’ and ensuring that the reasons for the retention of data and samples are aligned with data protection legislation, human rights legislation and the concept of proportionality.
The Human Genetics Commission (HGC) published the findings of its Citizens’ Inquiry into the Forensic Use of DNA and the National DNA Database. This report contains 29 core recommendations, some mirroring those of the NDNAD Ethics Group. Hear Sir John Sulston, HGC's acting Chair, comment on the purpose of the NDNAD to the BBC:
We need to go back to the basic question - what is this database for? Is it really intended as an ID database, which is perfectly arguable, and then you could use it for many purposes, including solving crime, including the identification of lost bodies. Or do we regard it, as I believe the police do at the moment, as a criminal database? If it is the latter there is a stigma attached to being on it and we have to be absolutely clear about that purpose.
A majority of respondents are also in full agreement that innocents should not be on the NDNAD:
Recommendation 18: If a person whose DNA has been loaded on to the database is found to be innocent or is released, the DNA sample must be destroyed and the profile removed from the database by law. Innocent people on the database should now be removed.
Increased transparency was favoured by a majority:
Recommendation 3: The government should fund the National DNA Database but not own it. The database should be owned by an independent body accountable only to the general public. Lay people should be recruited onto the independent body through equal opportunity processes.
The findings of the Citizens’ Inquiry will help to focus the HGC’s evidence gathering and further consultation, the results of which will be drawn together in a final report expected in early 2009. A consultation for members of the public is open until 2008-11-07.
Using freedom of information requests, Jenny Willott, LibDem MP who last month called for a new regulatory framework to remove DNA samples and profile of innocents, found out that the Home Office approved 25 applications for research projects using DNA profiles from the NDNAD. No one whose DNA is being used in these projects has given their consent. Five research projects were from private companies that refused to release some details because it would harm their commercial interests. DNA samples of innocents taken by the police are being used for commercial gain by private companies.
Some related posts:
After having been in the very lucky position of managing to get my DNA samples destroyed and profile deleted, I was shocked to find the destruction and removal steps to be ad hoc. This left me with little confidence in the effectiveness of the actions taken in such circumstances so I pressed for a process to be created and published. See How to delete your DNA profile (El Reg) for more details. In September 2007, I started an email conversation with a Senior Information Manager at the Metropolitan Police Service's Specialist Crime Directorate (SCD12); he wrote:
[T]here is no process map in existence for this practice. [...] An exceptional case process map will be available on the MPS Publication Scheme early 2008. The MPS website address is www.met.police.uk if you should wish to view it when it appears.
I noticed that on Friday (2008-06-27), Version .1 of the Exceptional Case Requests - Consideration for the Removal of DNA, Fingerprints and PNC Records had been published by the Specialist Crime Directorate / SCD12 on the Metropolitan Police Service Freedom of Information Publication Scheme page. The document was created on 2007-09-17, at the very same date I received the email above. This publication, disappointedly, still focuses only on the process to decide if a case is exceptional enough for the Police to consider relenting and exercising its discretion to ‘accede to requests from data subjects for their DNA and fingerprints to be destroyed, together with the deletion of the supporting entry on the Police National Computer (PNC)’:
All requests for the consideration of deletion of such records received by the MPS will be referred to the Exceptional Cases Unit [SCD – Freedom of Information Act Compliance Unit] for processing in accordance with National Policy. Although exceptional cases will be extremely rare the circumstances will be considered and the Commander for Operational Information, Intelligence and Learning will make the final decision on behalf of the Commissioner. They might include cases where the original arrest was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance.
A flow chart for this process was published in the Retention Guidelines for Nominal Records on the Police National Computer, incorporating the Step Down Model.
We are no more early 2008 and still awaiting a process map describing in details what happens after the Police reaches a decision to delete. Which Police department and contractors are involved, what actions they each take, how it is ensured removed data is not restored in case some computer tapes need to be restored, how it is all supervised, etc.
P.S. If you want to follow links from the ‘Further information’ section of the Consideration for the Removal of DNA, Fingerprints and PNC Records, you'll have to retype them as all documents from the MPS are locked preventing copying/pasting from them without the proper password. What could be the reason? Here are a direct links to the Home Office National DNA database documents and other information page and the Exceptional Case Procedures for Removal DNA, Fingerprints and PNC Records Word file.
In another related news, GeneWatch has published a detailed deconstruction of Gordon Brown's deliberately misleading claim that not retaining genetic profiles of innocent people on the National DNA Database (NDNAD) would have led to 114 murderers getting away. See also UKLiberty's Gordon’s civil liberties speech to the IPPR for an analysis of other parts of his speech.
Another DNA related blog post this month: Calls for a new regulatory framework to challenge DNA samples and profile retention.
Binyam Mohamed is a British resident still held in Guantánamo. He came to Britain as an asylum seeker in 1994 and was granted indefinite leave to remain. He was seized in 2002 and has since been tortured, including with a razor blade taken to his genitals and with loud non stop music, by or on behalf of the US in Morocco, in Afghanistan and is currently in Guantánamo Bay on a hunger strike. With George W. Bush having tea with the Queen and dinner with Prime Minister Gordon Brown today, Reprieve, the legal action charity, that represents over 30 others Guantánamo prisoners organised a demonstration in Trafalgar Square to call for Brown to ask Bush to send Binyam back home to Kensington, London.
Binyam Mohamed testified:
'It was pitch black no lights on in the rooms for most of the time.... They hung me up. I was allowed a few hours of sleep on the second day, then hung up again, this time for two days. My legs had swollen. My wrists and hands had gone numb.... There was loud music, [Eminem's] "Slim Shady" and Dr. Dre for 20 days....'
Clive Stafford-Smith, the legal director of Reprieve, suggested that musicians use copyright law to hold the American government to account for its use of music to torture detainees in Afghanistan, Iraq and Guantánamo. I wrote more about this for El Reg in Fighting torture with copyright - Moral musos work to rule. Follow-ups by some readers included an investigation by Roger Parloff in the Legal Pad at CNN Money as to whether torture is fair use in the context of copyright law, and the suggestion by Guillaume Champeau on French site Ratiatum that maybe the US army should buy music labels if the use of music for torture is so essential to its modus operandi.
Reprieve has launched the ‘Stop the torture’ initiative. Be sure to check out the list of artists and/or songs used for torture in Guantánamo, Iraq and secret prisons, and the call for action on the Stop the torture page. Mother Jones also published a ‘torture playlist’.
To dramatize the torture-by-music that Binyam and other prisoners have suffered, Reprieve invited today Barney the Purple Dinosaur as the theme tune to this popular children’s show has been one of the US torturers’ favourite pieces of torture music. Other guests were creative ‘cartoon characters’: Katy the Kangaroo Court, and Roger the Razor Blade. Cosmetics firm Lush, who have been supporting the work of Reprieve, brought along ‘Fair Trial My Arse’ orange underpants, to highlight the nature of the unjust process that Binyam is facing. (The US military once alleged that Reprieve smuggled contraband underpants in Guantánamo.)
In an interview with Democracy Now! earlier this year, Clive Stafford-Smith pointed out that as much as we may be shocked by what's going on at Guantánamo, it is just the tip of the iceberg:
And if you look at Guantánamo Bay, 270, roughly, as you mentioned, prisoners in Guantánamo, but according to the most recent official figures, the United States is currently holding 27,000 secret prisoners around the world. So that means that 99 percent of these folk are not in Guantánamo Bay.
Reprieve had organised a musical torture of its own for the afternoon when all demonstrators accompanied a band to the tune of Nick-Nack Paddywhack, the tune used in Barney's ‘I love you, you love me’ with the ‘Bring Byam Home’ song:
1. This poor man, in a cell,
Music is his living hell!
Cut him to the bone!
Gordon Brown, bring Binyam Home!
2. Rock and roll, children's song.
Bursting eardrums isn't wrong!
Cut him to the bone!
Gordon Brown, bring Binyam Home!
3. Laws for us, not for them,
Nameless people we condemn –
Cut him to the bone!
Gordon Brown, bring Binyam Home!
5. You should sign, just say yes,
We won't make your face a mess –
Cut him to the bone!
Gordon Brown, bring Binyam Home!
6. We want men, take five grand,
Say he shook Osama's hand!
Cut him to the bone!
Gordon Brown, bring Binyam Home!
7. Don't much care, if it's true,
We've got Freedom's work to do –
Cut him to the bone!
Gordon Brown, bring Binyam Home!
8. Head in the hood, arms in chains,
Backs bent to increase the pain –
Cut him to the bone!
Gordon Brown, bring Binyam Home!
10. If we make, cowboy laws,
We're not good guys any more!
Cut him to the bone!
Gordon Brown, bring Binyam Home!
11. Mister Bush, Gordon Brown,
Time to close this torture town –
Cut him to the bone!
Gordon Brown, bring Binyam Home!
(Coincidentally, WMMNA published today a post on the Guantánamo museum and other tales of extraordinary rendition at Helga de Alvear gallery in Madrid, an exhibition on extraordinary rendition.)
After members of Parliament voted 315 to 306 to extend the detention period from the current 28 days, a politician resigned from Parliament to protest against the insidious and monstrous erosion of civil liberties in Britain and fight against the slow strangulation of fundamental British freedoms by this Government. His statement can be watched on the Beeb and a full transcript is published by the Independent:
[...] In truth perhaps 42 days is the one most salient example of the insidious, surreptitious and relentless erosion of fundamental British freedom.
And we will have shortly the most intrusive identity card system in the world. A CCTV camera for every 14 citizens, a DNA database bigger than any dictatorship has, with thousands of innocent children and millions of innocent citizens on it.
We have witnessed an assault on jury trials, a bolt against bad law and its arbitrary use by the state.
And shortcuts with our justice system, which will make our system neither firm nor fair and a creation of a database state opening up our private lives to the prying eyes of official snoopers and exposing our personal data to careless civil servants and criminal hackers.
The state has security powers to clamp down on peaceful protest and so-called hate laws to stifle legitimate debate, whilst those who incite violence get off scot-free.
This cannot go on, it must be stopped, and for that reason today I feel it is incumbent on me to take a stand. [...]
The Select Committee on Home Affairs calls for a regulatory framework to make it easier for innocents to challenge the decision by the Police to retain their DNA samples and profile; Jenny Willott, MP, calls for a law to require destruction/removal of DNA samples and profile of innocents; the ECHR is to rule later this year about whether the UK is breaching human rights by retaining DNA samples and profile of unconvicted innocents. These unrelated news items show a growing concern from many different quarters about the retention of DNA samples and profile of innocents. Hopefully a sign that laws will change to restore some of our eroded civil and human rights.
In its Fifth Report, The Select Committee on Home Affairs ‘examined aspects of the Home Office's responsibilities in relation to the collection and sharing of personal information—including CCTV or video surveillance, identity cards and the National DNA Database—and considered how information collected in other public and private sector databases might be shared for use in the fight against crime. [They] recommend that the Home Office exercise restraint in collecting personal information, and address the question of whether or not surveillance activities represent proportionate responses to threats of varying degrees of severity.’ Some of the recommendations in the section on the National DNA Database are specifically about retention of the DNA profiles of innocents:
285. There have been calls for an expansion of the National DNA Database to include profiles connected with non-recordable offences and for a 'universal database' and for the Government to reconsider its policy on retaining the profiles of those who have been arrested but not charged. In order to facilitate a full debate and an appropriate level of Parliamentary scrutiny we recommend that alongside any conclusions of the PACE review the Government introduce primary legislation to replace the current regulatory framework for the National DNA Database. We recommend that this legislation provide for a more accessible mechanism by which individuals can challenge the decision to retain their records on the Database.
286. The Government should reconsider the ways in which National DNA database information is collected, handled, stored and transferred. In particular we recommend that in order to minimise the data held, the Home Office and the police should review the identifiers used for samples and the policy of retaining samples.
Jenny Willott, the Liberal Democrat MP for Cardiff Central, was arguing today in Parliament to be given the leave to ‘bring in a Bill to require the removal from the DNA Database of DNA samples taken from individuals who are not charged or are acquitted; and for connected purposes’:
Everyone accepts that DNA has been a massive breakthrough in crime detection, helping to solve the crimes of today and also some of the cold cases from 20 to 30 years ago. However, the Government have pursued this breakthrough in a disproportionate way.
The UK has by far the largest DNA database in the world, with 4.5 million people registered. Proportionally, five times more people are on our database than is the case with the next closest country. We think of the US as having a punitive criminal justice system, but less than 1 per cent. of its population is on the US database, whereas we have around 6 per cent. Moreover, it has been estimated that under current laws, the database will expand to include one in four of our adult male population.
The number of children on the database is particularly worrying. At the moment, it is estimated that it contains entries for more than 700,000 people who were under 18 when they were arrested and their DNA was taken. In case hon. Members think that some of them might have deserved what they got, I should add that there are estimated to be more than 100,000 children under 18 on the database who have never been convicted, cautioned or charged with any offence.
I am sure all hon. Members will have seen various crazy cases across the country. There are examples from every constituency. A quick trawl of press clippings threw up the case of three children who were hauled into a police station because they climbed a cherry tree to build a tree house. They were arrested for criminal damage and had their DNA taken, but the case was never taken any further. Another example is the 14-year-old boy who was a victim of mistaken identity when teachers at his school gave police the wrong name after a brawl between pupils.
Even after admitting they had arrested the wrong boy, the police refused to remove his DNA. Whereas in the past schoolboy fights, high jinks and lads climbing trees would have resulted in a stern word and them being taken home, children are now getting criminal records and their DNA is being held on the database for ever.
We should also be worried about the sheer number of ethnic minorities on the database and the racial imbalance. Almost 40 per cent. of black men have their DNA profile held, compared with 13 per cent. of Asian men and 9 per cent. of white men, despite the fact that there is no evidence that black men disproportionately commit crime. In fact, evidence suggests that white men are more likely to offend than black men. This over-representation of black men creates mistrust and continues to fuel problems that are much larger, such as the disproportionate representation of black men in our criminal justice system. Also, problems of race relations, community cohesion and discrimination, either perceived or real, are made worse. Moreover, the situation is getting worse. At the current rate, more than half of all black men will be on the database within two years.
This highlights one of the main objections to holding the DNA of those who are not charged or who are acquitted. One of the fundamental tenets of British justice is “innocent until proven guilty”. Refusing to destroy samples taken from those who are never charged or who are later acquitted completely blurs that principle. The DNA database assumes that people will be guilty of something in the future; that is why the samples are kept. This is very Big Brother; George Orwell must be spinning in his grave.
When the national DNA database was created in 1995, only the DNA of convicted offenders could be held, and samples had to be destroyed if the suspect was acquitted or charges were dropped. Because by 2001 the Government were breaking their own law—presumably as a result of incompetence rather than design—the law was changed to allow the profiles of those acquitted of certain crimes to be kept. That was expanded even more in 2004, when samples could be taken from anyone arrested for a recordable offence. By the end of 2005, 200,000 samples which would have been destroyed before 2001 had been retained, and that number has since soared. There are now estimated to be more than 1 million people who have not been charged or convicted on the database—three times the population of a city the size of Cardiff, where I live. Those are 1 million people considered innocent under British law, but considered potentially guilty by the Home Office. By retaining that DNA, the state is saying, “Well, you might not have been convicted, but we think you may commit an offence in future and we want to make sure we can catch you when you do.” That is not acceptable.
It is almost impossible, however, for someone to remove their sample from the database. Since the changes in 2004, fewer than 700 people have managed to remove their profiles—700 out of the 1 million innocent people on the database. The police control which samples are removed. People have to apply to the chief constable of the force that took the sample in the first place, who is hardly an independent arbiter. The Government may be forced to change this shortly, as there is a case before the European Court of Human Rights, brought by two men from Sheffield—one of whom was under 18 at the time—who have applied to have their DNA removed on the grounds that they were both cleared and neither has a criminal record. The ECHR is expected to rule this summer, and a finding against the Government could open the floodgates on this issue.
Even if some people might not agree with the civil liberties case for removing the DNA of innocent people, there is a very strong practical case. The Government have already said that they believe that the DNA of the majority of the active criminal population is now recorded, so why the mad rush to take samples from so many other people? The DNA database is not without cost. The costs of sampling increasing numbers, maintaining an expanding database and storing millions of samples will continue to grow.
However, there is very little evidence that these increasing costs will have much of an impact on crime detection. Despite the massive expansion in the number of individuals on the database, the percentage of recorded crimes solved as a result of a DNA match has remained fairly constant; the figures I have seen show it to be below 0.4 per cent. A bigger difference has been made at the other end of DNA matching: at the crime scene. At present, less than 20 per cent. of crime scenes are forensically examined, and only a small proportion of them yield any biological material that is then tested. Clear-up rates are much higher when DNA is found at a crime scene, so should we not be putting resources into that end of things, rather than into collecting individuals’ samples?
One argument often used to justify the keeping of DNA is that it will help to solve cold cases, but that is fallacious. When someone is arrested and their DNA is taken, that should be tested against unidentified crime scene DNA, as is done. That will identify whether they have committed any unsolved crimes, and that is fine, but if they have not, holding their DNA after that point is irrelevant. In addition, the massive cost of holding the samples is borne by police forces. I am sure that I am not alone in thinking that the money might be better spent on front-line policing, to ensure that fewer crimes are committed and our communities are kept safe.
Following the European case, the Government may have to change their policy anyway, but I would like to propose a solution. Some countries, such as Scotland, France and Canada, have legislated against retaining DNA samples from those who are acquitted. I believe we should follow their lead, and remove innocent people’s DNA from the database. Samples and profiles should be destroyed if the individual is not convicted or cautioned, although there should be an exception for those accused of a violent or sexual offence. Their samples should be kept—not indefinitely, but for a specified time. In addition, all children under 16, unless guilty of a violent or sexual offence, should have their DNA removed from the database. If we treat them like criminals at such an early age, they may well go on to fulfil our expectations.
We are talking about a huge number of people—1 million of them—whose deeply private information is being held by the Government when they have not been found to have done any wrong. That goes against fundamental British principles, as well as being a massive drain on public resources for little gain, and this Bill would rectify that injustice.
Question put and agreed to.
Bill ordered to be brought in by Jenny Willott, Sarah Teather, Tom Brake, Mr. Paul Burstow, Chris Huhne, David Howarth, Kelvin Hopkins, Keith Vaz, Mr. Gordon Prentice and Mr. Stephen Crabb.
Jenny Willott accordingly presented a Bill to require the removal from the DNA Database of DNA samples taken from individuals who are not charged or are acquitted; and for connected purposes: And the same was read the First time; and ordered to be read a Second time on Friday 17 October, and to be printed [Bill 118].
You may remember that last year, the Metropolitan Police Service Specialist Crime Directorate 12 (MPS SCD 12)] promised to publish early 2008 a process map detailing how they go about removing the information from the NDNAD and associated databases and destroying the samples. This is still to happen. I expect to hear more soon when the Senior Information Manager looking after this process comes back from his annual leave.
When the Independent Police Complaints Commission (IPCC) confirmed reception of my appeal to the decision of the IPCC-supervised enquiry, it made clear that this would be the last step of this process:
Please note that the decision made by the IPCC about your appeal is final.
This was again reiterated with its decision about my appeal:
If you have any questions or need more information about this please contact me. However, this decision is final.
Until now I understood this to mean that – in the process of a complaint to the IPCC – the IPCC's decision in an appeal was the last possible step of this process. Apparently, not always.
From the press release on the ‘Damning Verdict on Police Complaints watchdog’:
Nicola Dennis, a mother of three, (represented by Stephen Cragg) made her complaint about the police after enduring a terrifying ordeal one Saturday morning in November 2005. Nicola was spending a quiet morning at her home with a friend when armed officers suddenly appeared at her door. It turned out later that they were chasing the possibly armed suspects of the murder of PC Sharon Beshenivsky in Bradford the previous day.
Nicola was pulled out of her house at gunpoint, pushed to the ground and made to lie face down with her hands cuffed behind her back. Nicola was convinced she was going to be shot at any moment. She was only released when it became clear she had nothing to do with the suspects. Later that day an officer came to Nicola's house and made a clumsy attempt to provide an explanation of why the officers had acted as they did. Nicola was told that she just happened to be in the wrong place at the wrong time. The court heard that Nicola remembers that the officer told her 'when it's one of our own we go in harder'.
Nicola was horrified and upset at the way she had been treated by the officers. She made a complaint to the Metropolitan Police. Her complaint was not upheld so she appealed to the IPCC, the public watchdog tasked with overseeing police complaints. But the appeal findings she got from the IPCC were confusing. The caseworker even muddled up the actions of the two officers involved. One of the officers was criticised for being 'over zealous' but the caseworker did not match her criticism with a clear finding about whether his actions were right or wrong in law.
Nicola applied to the High Court for the IPCC's appeal findings to be reviewed by a judge on the basis that they were flawed and irrational.
High Court Judge Mr Justice Saunders found in the favour of Nicola Dennis and ruled that the IPCC's appeal decision must be quashed. From the draft judgment:
41. I am satisfied that taken as whole this appeal decision is fatally flawed and is irrational in that it is based on a misunderstanding of the facts and lack of clarity in reasoning which renders the decision difficult to understand. It also includes criticisms of a police officer which are unjustified.
47. I have been supplied with and have considered further written submissions as to remedy. Having considered those submissions together with my findings, I am satisfied that the appeal decision [of the IPCC] must be quashed.
Last year, after the final decision of the Independent Police Complaint Commission not to uphold my appeal I consulted a solicitor for advice as to whether I should pursue a civil claim. Last month my solicitor sent a letter of claim to the Metropolitan Police Directorate of Legal Services.
Gareth Peirce, ‘a lawyer who has since the 1970s represented individuals accused of involvement in terrorism from both the Irish and the Muslim communities’ explores in the London Review of Books whether the position of Muslims in Britain is what it was like for the Irish. It is a longish article, very well written, in a calm voice, which raises serious issues that too many may not be fully aware of: ‘Over the years of the conflict, every lawless action on the part of the British state provoked a similar reaction: internment, ‘shoot to kill’, the use of torture (hooding, extreme stress positions, mock executions), brutally obtained false confessions and fabricated evidence. This was registered by the community most affected, but the British public, in whose name these actions were taken, remained ignorant: that the state was seen to be combating terrorism sufficed.’ Please, do read her article in full.
[...] The answer lies in Blair’s warning: ‘The rules of the game have changed.’ Previously accepted boundaries of freedom of expression and thought have been redefined and are now in effect being prosecuted retrospectively, with the result that our criminal justice system is becoming further distorted as many truly innocent defendants plead guilty, against their lawyers’ advice, terrified by the prospect, as they see it, of inevitable conviction and ever lengthening prison sentences. Thousands of others, all of whom have searched the internet, watch with horror the process of criminalisation and punishment.
In this country we did not grow up with a written constitution and human rights legislation entered our law only recently. In times of tension we struggle to find answers to basic questions. Are there rules and can they be changed? Are there legal concepts that protect a community under blanket suspicion, or should that community’s adverse reaction to suspicion be seen as oversensitivity in the face of perceived political necessity? Should we accept the concept of the greatest good for the greatest number? The answer is again the same: we are bound by international treaty and, belatedly, by domestic human rights legislation, to hold that there are inalienable rights that attach to the individual rather than society. Article 8 of the European Convention protects not only respect for family and private life, but also the individual against humiliating treatment; Article 10 protects freedom of expression, Article 9 freedom of thought, conscience and religion, and Article 14 guarantees that in the enjoyment of these rights any discrimination is itself prohibited. Occasionally, fierce campaigning successfully sounds an alarm: the proposed extension from 28 to 42 days of the time allowed for questioning those suspected of involvement in terrorism is being energetically fought. But there are less obvious erosions of parallel rights.
If this is indeed how it was for the Irish, we should urgently try to understand how significant change came about for them. Much current reminiscence ignores vital factors, such as the inescapable responsibility of the Irish Republic and, above all, the political weight of the Irish diaspora and the far-sightedness of those who began and maintained contact, long before Blair was elected and claimed the ultimate prize. Throughout the thirty years of conflict, forty million Americans of Irish descent formed an electoral statistic that no US administration could afford to ignore. It is said that on the night before he decided to grant a visa to Gerry Adams, Bill Clinton watched a film about the catastrophic injustice inflicted on one Irish family by the British state. Here, Lord Scarman and Lord Devlin, retired law lords, joined Cardinal Hume, the head of the Catholic Church in England, in educating themselves in the finest detail of three sets of wrongful convictions involving 14 defendants. At one critical moment Cardinal Hume confronted the home secretary, Douglas Hurd, challenging the adequacy of his briefing.
No similar allies for the Muslim community are evident today, capable of pushing and pulling the British government publicly or privately into seeing sense. Spiritually, the Muslim Ummah is seen as being infinite, but the powerful regimes of the Muslim world almost without exception not only themselves perpetrate oppression, but choose to work hand in hand with the US and the UK in their ‘war on terror’. It is for us, as a nation, to take stock of ourselves. We are very far along a destructive path, and if our government continues on that path, we will ultimately have destroyed much of the moral and legal fabric of the society that we claim to be protecting. The choice and the responsibility are entirely ours.
(Discovered via Dick Destiny.)
More on Gareth Peirce in English legal system contaminated.
On 2008-04-23, Gareth Peirce will join Independent columnist Yasmin Alibhai-Brown, poet and writer Benjamin Zephaniah, chair of the Independent Police Complaints Commission Nick Hardwick, and Guantanamo survivor Moazzam Begg in a panel discussion on Racism and the state of Britain chaired by chaired by Asad Rehman - Newham Monitoring Project.
11. The Government received 512 responses during the 12 week consultation period. Representations were received from 25 campaign groups, from six MPs and two Peers, from a number of other interested stakeholders including the Metropolitan Police Service, the Greater London Authority,Westminster City Council and the Law Society of Scotland. However, most responses – over 90 percent – were received from members of the public.
12. The vast majority of responses – over 95 percent – either explicitly or implicitly called for the straight repeal of sections 132 to 138 of the Serious Organised Crime and Police Act (SOCAP), rejecting arguments that a distinct framework for managing protest around Parliament could be justified on security grounds, or on grounds that the business of Parliament needed special protection, or by a need to safeguard wider public enjoyment of the space.
13. There was a clear and strongly articulated view that sections 132 to 138 of the Serious Organised Crime and Police Act, and in particular the requirement to notify the police in advance, have restricted and stifled spontaneous protest in the area around Parliament.There was also a clear view expressed by members of the public that the area around Parliament is special in that it is the focus of political protest and that nowhere is the right to protest and voice one’s views more important than at the seat of Parliament itself.
On an unrelated news The Governance of Britain – Draft Constitutional Reform Bill starts with the repeal of the sections 132 to 138 of SOCPA (this act is more commonly abbreviated to SOCPA than SOCAP):
DEMONSTRATIONS IN THE VICINITY OF PARLIAMENT
1 Repeal of sections 132 to 138 of the Serious Organised Crime and Police Act 2005
(1) Omit sections 132 to 138 of the Serious Organised Crime and Police Act 2005 (c.15) (which regulates demonstrations in the vicinity of Parliament)
(2) In the Table in section 175(3) of that Act (transitional provision relating to offences) omit the entries relating to section 136.
(3) In paragraph 1(1) of Schedule 2 to the Noise and Statutory Nuisance Act 1993 (c.40) (which is about consents for the operation of loudspeakers) omit "or of section 137(1) of the Serious Organised Crime and Police Act 2005".
(4) Omit paragraph 64 of Schedule 6 to the Serious Crime Act 2007 (c.27)
This intention is welcomed, but at this stage this is just a draft bill which may be changed and will take time to come into force. If this happens then we'll return to the status quo before these sections came into force – minus all the arrests of peaceful protesters in the designated zone and the time wasted by protesters and the Police alike in dealing with the required authorisations.
What do Marper, S., Kevin Reynolds and myself have in common? We're all innocents who have had our DNA taken following an arrest. I have been the lucky one as it only took me two years to get my DNA profile removed and samples destroyed. Marper & S. are fighting it all the way to the European Court of Human Rights (ECHR), and Kevin Reynolds has had to go through a traumatic arrest, which could have been avoided had the Police immediately checked his previously retained DNA profile.
After having gone all the way to the Grand Chamber of the ECHR, the Marper and S v. UK is viewed as a test case about whether the UK is breaching human rights by retaining DNA samples and profiles of unconvicted innocent people. The hearing of this case by is available to watch online and the ruling will be given later this year:
As mentioned two weeks ago, you can:
Helen Wallace from GeneWatch, name checked during the hearing, makes a very strong argument that there is a diminishing return from adding more individuals' DNA profiles to the National DNA Database (NDNAD). Here's an extract from the GeneWatch page on its contribution to the Nuffield Council on Bioethics consultation:
Collecting more DNA from crime scenes has made a big difference to the number of crimes solved, but keeping DNA from more and more people who have been arrested – many of whom are innocent – has not. Since April 2003, about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA has remained constant, at about 0.36%.
The recent conviction of Mark Dixie for the horrific murder of Sally Anne Bowman has been used in the ECHR hearing and by the Police to justify and demand retention of DNA of even more individuals:
The policeman who led the hunt for Sally Anne Bowman's killer today called for a national DNA register. Detective Superintendent Stuart Cundy said having everyone's DNA on file would speed up arrests and cut down on further offending.
What Detective Superintendent Cundy didn't mention is how, in this very same case, the data retained on the National DNA Database was ignored to arrest an innocent for murder, indecent assault and robbery. Let's go into more details of the case of Kevin Reynolds to understand how retaining DNA samples and profiles of innocents does not automatically help to eliminate them as suspect in investigation.
Postman Kevin Reynolds had had his DNA and fingerprints taken on 2002-06-14 when he was charged, but later acquitted, with being drunk and disorderly. The profile was loaded on the NDNAD on 2002-07-04. Even though he was acquitted, his fingerprints and DNA profile remained on file.
Fast forward to 2005-12-12, when following complaints by a jilted girlfriend, Kevin is taken into custody at the Edmonton Police station at 02:10. He is led to the fingerprinting room to have his fingerprints taken and DNA sampled. The Livescan fingerprinting system confirms Kevin's identity and give his CRO number. So even if there are several Kevin Reynolds with the exact same date of birth living at the same place, Livescan has confirmed that this is the Kevin Reynolds for which the Police has retained a DNA profile (and samples). Here are the Livescan sheet for Kevin and an extract from the IDENT1 Livescan manual:
Search Result (SRE)
An SRE is returned to the Livescan unit. This will be received after the ACK and once the search has been completed (and verified if requested). This will contain the result of the search. If a search is verified, i.e. has been viewed by a fingerprint expert, there will be one CRO. If the search is non-verified, there may be up to four respondents displayed, with system confidence ratings (High, Medium, or Low). If the result is a no trace, No Respondents will be displayed.
Nothing was explained to Kevin. When they took him to the fingerprinting room, he asked why they were doing this as they already had his fingerprints and DNA. He received no reply. Even though Livescan confirmed the identification, DNA samples were again taken from him. This has recently been confirmed by the Forensic Science Service (FSS):
The sample which you supplied to the Metropolitan Police Service on 12 December 2005, in connection with a murder inquiry, was analysed by the FSS in order to generate your DNA profile. Your DNA profile was compared against the DNA profile obtained from the crime scene. Additionally your DNA profile record relating to this sample was submitted to The National DNA Database and is now retained, in compliance with legislation, on The National DNA Database.
Kevin is placed in cell. At 04:50 the wicket of the cell opens and the officers ask Kevin to come to the cell door. He is told he is ‘arrested on suspicion of the murder of Sally Ann [sic] Bowman [...] and cautioned’. His reply: ‘Who? Who is Sally Ann Bowman?’
A news article from the Metropolitan Police Service explains: ‘At an early stage DNA was recovered from the murder scene, which police believed identified the murderer.’ The Police had profiled the DNA from the crime scene, they had a man in their custody for whom they already had a DNA profile loaded in the system, the identification of this man was even confirmed by Livescan, and they still arrested him for the murder of Sally Anne Bowman? Kevin's DNA profile on the NDNAD would have been sufficient to show there was no match and clear him from suspicion.
It doesn't stop there. At 14:15, Kevin is further arrested for indecent assault and for the robbery in Sanderstead Road (this attack is linked to the murder of Sally Anne Bowman). He reiterates: ‘I am completely innocent’. At 21:18, Kevin is taken to a double identity parade using video capture; he learns two hours later from his solicitor that both id parades were negative and in one of them another person was picked out. At 12:09 the next day, Kevin is formally interviewed, and close to half an hour in the interview, the interviewing officer's phone beeps to tell him that Kevin's DNA didn't match the crime scene's DNA, and he's eventually released as no further action (NFA'd).
He then goes home and find his father's house, where he was living, smashed to pieces and to learn his car is in some pound in south London. The specialist search team were still in his house but leaving. His father commented to the Morning Star:
"They pulled my house apart - breaking furniture and damaging the walls - and went through all my files. Yet, I was not asked a single question about my son," he says.
Kevin told the Eye:
“My heart goes out to the Bowman family, but it makes me very angry that time, money and energy were wasted pursuing me when it was known all along that I could not be the killer. I dread to think what would have happened had one of the witnesses identified me in the line-up. My case shows that the database does not protect innocent people from wrongful arrest and detention.”
Kevin's DNA eventually cleared him after more than 34 hours and a harrowing experience. Having his DNA retained should have cleared Kevin immediately, but it did not. They did not use the retained DNA samples and profile. DNA appears to be used only when convenient for the Police, with little respect for innocent individuals.
The cost of criminalising a whole population in the hope of being better at catching criminals is a price to high to pay when the case for a better detection rate with an increasing larger database has not even been made. Calls, such as the Times reports, are dangerous propaganda as the innocents do have to fear:
The detective who led the Bowman investigation said: “It is my opinion that a national DNA register could have identified Sally Anne’s murderer within 24 hours.” The innocent would have nothing to fear, while the guilty would be caught. It could even deter criminals.
Gary Pugh, director of forensic sciences at Scotland Yard and the new DNA spokesman for the Association of Chief Police Officers (ACPO), has just been joining Detective Superintendent Cundy in calling for an ever bigger NDNAD. Worryingly he's setting his personal sights on children as young as five when currently under 10-year-old are out of the reach of the NDNAD:
'If we have a primary means of identifying people before they offend, then in the long-term the benefits of targeting younger people are extremely large,' said Pugh. 'You could argue the younger the better. Criminologists say some people will grow out of crime; others won't. We have to find who are possibly going to be the biggest threat to society.'
Thanks to Stephen Cragg for the title of this post and to Kevin Reynolds for his assistance regarding his story.
First published on 2008-03-16; last updated on 2011-01-01.
Yet another Counter-Terrorism Bill is currently before Parliament. It will impose new and worse forms of punishment without trial. Since the first permanent Terrorism Act of 2000, people have suffered much injustice under anti-terrorism measures, particularly Muslims and migrant communities. Out of over 1,200 people arrested under anti-terrorism laws, less than 5% have been convicted of ‘terrorism’ offences, few of these involving any plans for violent activities. Less than 20% were even charged with such offences. A key effect and political aim has been a climate of fear – fear that political activity, or simply talking to the wrong people, will bring arrest or house raids.
Why does the government propose yet another Counter-Terrorism law? What effects will it have? What can people do to oppose it?
This Friday 2008-03-14, 6.30pm-9.00pm at the London Muslim Centre, 46 Whitechapel Road, London E1 1JQ, speakers will look at unjust effects of the current anti-terrorism measures and how this injustice would be extended by the new proposals. They will explain and analyse the proposals in the new Bill. There will be plenty of time for questions and discussion – about what powers to oppose, how to present the issues to your own community, and what action to request from your MP.
Event organised by the Campaign against criminalising communities (CAMPACC) with the Centre for the study of terrorism (CFSOT), and co-sponsored by the London Muslim Centre, Islamic Forum of Europe, Cage Prisoners and the Newham Monitoring Project.
The government’s new proposals are based on the Terrorism Act 2000, which defined terrorism so broadly as to include simply the threat of violence to property in an attempt to influence a government, anywhere in the world. This broad definition, with offences like belonging to or helping a banned organisation, criminalises many normal political activities in the UK and any resistance to oppressive regimes abroad.
For more information on the bill and a model letter to send your MP visit the CAMPACC Briefing Document Counter Terrorism Bill 2008. Please ask your MP to oppose these proposals!
Information in this post is from the announcement for this event.
For the past two years or so I've been wearing a badge designed by Vivienne Westwood for the civil liberty organisation Liberty. On it is written in friendly letters ‘I am not a terrorist, please don't arrest me’. Liberty describes the writing as ‘a child-like scrawl plea’. It obviously works as I have not been arrested, or even stopped and searched, since I started wearing this badge.
The badge helps people realise that we must all adopt a rational attitude to the terrorist threats. We must promote measures that really do enhance our security and not security theatre measures that just inconvenience many innocents and do not make us any safer.
I have travelled abroad many times while wearing it. While waiting in security queues at airports I had the occasional positive response from fellow passengers. At Stansted Airport, early February, I had the first and so far only negative reaction to it. While I was waiting at the gate, by the counter, for an Easyjet flight to Copenhagen, a Swissport staff requested that I remove the badge which was pinned to my coat.
When I queried the staff why he was making such a request, he explained his motivation was that it might upset some passengers. I pointed out that the design of this badge is friendly and the message is non-threatening. I found his request upsetting and that his motivation was purely hypothetical as he hadn't heard from any concerned passenger. As he insisted, I complied with his request. This exchange was short and polite. At the bottom of the steps leading to the tarmac, he further discussed this incident with a colleague travelling with me adding that you have to be careful because some people are getting nervous about these things.
On board of the plane, my colleague opened The Times, and the headline on top of p.3, visible from several rows, was ‘Ryanair ordered to pay damages to steel band ‘terrorists’ thrown off jet’. Oh, the irony.
As no passenger has ever complained about this badge and I don't believe requesting me to remove it increases our security, back in London I contacted the General Manager for Swissport at Stansted to query the regulations covering Swissport staff's authority in requesting passenger to remove badges and other items of clothing. He investigated the incident and was very diligent in responding:
As all communications from passengers and customers are important to us, we do investigate all complaints or comments fully, and by the nature of our business this can take longer than perhaps I might prefer.
I have now had the opportunity to investigate the circumstances surrounding a member of Swissport staff asking you to remove your badge before boarding a flight at Stansted Airport.
Our business as a major provider of airport ground handling services around the world, works hard with our customer airlines and operators at airports where we work, to ensure aviation continues to be a safe and secure method of transport. The aviation industry is rightly well regulated and all businesses co-operate with the Department for Transport and the police services and security staff at the airports to meet these regulations. Additionally, we try and ensure that passengers are spared additional anxiety that they may feel as a result of enhanced security processes at the airports.
The badge which I understand you were wearing bears the message "I am not a terrorist. Please don't arrest me." Whilst it is unlikely that anybody could take exception to such a friendly and, presumably well-intentioned sentiment, our concerns were that the word "terrorist" was clearly the most prominent and could be read from a distance, while the context in which it was used could not.
Our request for the badge to be removed while you were preparing to board the flight and during the flight itself, followed consultation with the airline on which you were travelling, in particular the Captain and senior cabin crew member. We did not intend to cause you offence or to demonstrate support or rejection of the objectives of Liberty, the cause which I gather the badge supports. It was merely to spare other passengers any potential anxiety through the prominence of the word "terrorist" in what many would consider a security sensitive area. As part of legislative requirements, all airport staff are now required to undergo a greater degree of security awareness training and one of the supporting strains of this is to recognize and to act upon the “out of the ordinary”.
I hope that this provides some explanation of the reason for the action of our member of staff and I trust that this explains why you were asked to remove the badge on this occasion.
It is reassuring that airport staff benefit from additional security awareness training. This is exactly the type of measure that increases our safety.
Unfortunately some of the explanations still left me confused. Neither my colleague nor I noticed the Swissport staff having radio communications with the Easyjet Captain. We may have missed that as even though we were right by the counter we weren't paying particular attention to this. However, during the request to remove my badge, there was no mention of any consultation with the Captain. Sparing potential anxiety is of course something I fully subscribe to, but how come the word ‘terrorists’ when more prominent on a newspaper has not the same potential to create anxiety in a security sensitive area? Security measures, if efficient, should be applied consistently. Why singling my badge out?
I sent a further email requesting clarifications. Here's the concluding email:
Thank you for your further correspondence, and my apologies for a tardy reply. I have been dealing with a large redundancy issue which as I hope you can appreciate is very time consuming.
Our dispatchers are responsible for ensuring the boarding process is safe and timely and, as such, liaise with a number of personnel during the time the aircraft is on the ground. It is likely you would not have been aware of all of these discussions, some of which will have been made by radio or telephone from our Operations office, and there was no need for the dispatcher to explain them to you at the time.
Whilst I can understand your frustration, I am satisfied that in the light of the circumstances on the day as they were explained to me, the dispatcher made the right decision in asking you to remove the badge in question. The dispatcher was the senior member of our staff on duty at the time and, as such, I support his decision and am grateful to you for complying with it.
I have not received the Swissport's regulations covering Swissport staff's authority in requesting passenger to remove badges and other items of clothing
In March last year, the Met launched a counter-terrorism ad campaign. I wrote about it exactly a year this week: Not enough innocents arrested, let's do an ad campaign. These were some of the posters from last year's campaign:
A year later, a new campaign is launched at the tail end of February, and friends sent me links (thank you) to Thomas Hawk's blog post and Flicker thread titled London's Metropolitan Police Launches Anti Photography Propaganda Campaign, as well as doctored images by email. What's changed? Not much. The Police are still asking untrained people to ‘look out for the unusual’. Most foreigners have different customs, hence have ‘some activity or behaviour [...] not quite right and out of place in their normal day to day lives.’ Either you conform or you should be reported.
Here are some of this year's posters:
This year, the poster are simpler and more focused, and phones and cameras get the limelight. As more and more phones are camera-phones, soon one poster will suffice. When I was arrested I somehow had only one phone on me, but when they searched my flat the Police could admire my phone collection: several bowls and drawers full of phones. People working in the mobile phone industry routinely carry several and collect many phones. Photographers do the same with cameras and are harassed.
Tomorrow, on 2008-02-27, the Europen Court of Human Rights will be holding a Grand Chamber hearing in the case of S. and Michael Marper v. the United Kingdom.
S. and Michael Marper v. the United Kingdom (nos. 30562/04 and 30566/04)
The applicants S. and Michael Marper, were born in 1989 and 1963. They are both British nationals who live in Sheffield, United Kingdom.
The case concerns the decision to continue storing fingerprints and DNA samples taken from the applicants after unsuccessful criminal proceedings against them were closed.
On 19 January 2001 S. was arrested and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted on 14 June 2001. Mr Marper was arrested on 13 March 2001, charged with harassing his partner. His fingerprints and DNA samples were also taken. The charges were dropped following reconciliation with his partner and the case against him was discontinued, also on 14 June 2001.
Both applicants unsuccessfully requested that their fingerprints and DNA samples be destroyed.
The applicants both complain about the retention of their fingerprints and DNA samples and the fact that they are being used in ongoing criminal investigations. They are also concerned about the possible future uses of those samples and, in general, that their retention casts suspicion on people who have been acquitted or discharged of crimes. They further contend that, as people without convictions who are no longer suspected criminals, they should be treated in the same way as the rest of the unconvicted population of the United Kingdom. They rely on Articles 8 (right to respect for private life) and 14 (prohibition of discrimination) of the Convention.
The Chamber to which the case was assigned decided to relinquish jurisdiction to the Grand Chamber on 10 July 2007.
Some countries require Police record information as part of their immigration, visas, work permits and residency acceptance processes. This is the case for the USA: ‘Under United States visa law, people who have been arrested at anytime are required to declare the arrest when applying for a visa.’ This applies to all those that have been arrested even if never convicted.
The way to get details of your – blank or otherwise – police record is to make a subject access request using the Police National Computer (PNC) Form 3019B. This is a right given by the Data Protection Act 1998. The act stipulates that a reply must be received within 40 days as long as the necessary fee has been paid. The fee is decided by the relevant data controller up to a maximum of £10 and the Police do charge the maximum.
With very little fanfare, a trial has recently started in which four countries will no longer accepting PNC record extracts for their visa procedures. Instead you will need a police certificate:
The ACPO Criminal Records Office is piloting an initiative to provide Police Certificates for Visa purposes. The four countries involved in the pilot are Australia, Canada, New Zealand and the United States of America.
There's no press release from the Association of Chief Police Officers (ACPO) I could find. Searching the Hansard (or They work for you) does not bring any result so this doesn't appear to have been debated in Parliament at all. Nothing either on the websites of the Foreign & Commonwealth Office, Department for Transport, the Home Office or the Ministry of Justice (sponsor of the Information Commissioner's Office). The new form on the ACPO site does not include any issuance date, but the document properties reveal that it was created by the Hampshire Constabulary on 2008-01-15. The US Embassy is requiring new visa applicants to furnish a new style police certificate from the ACPO and those that have already applied for a PNC data subject access have only until 2008-08-15 to appear for interview. For a trial, it looks rather definitive. The websites of the Australian, Canadian, New Zealand embassies do not appear to have been updated yet to reflect the changes (with the Citizenship and Immigration Canada website even including out of date URLs to the Metropolitan Police Service website).
Here's a summary of the differences:
|PNC data subject access||ACPO police certificate|
|Provides||‘[I]nformation that may be held about you on the Police National Computer’||Unclear
The form states: ‘ACRO will carry out extensive authentication exercises including searching various databases.’
|Validity||12 months||6 months|
|Cost||£10 paid to the local police force|
|Processing time||Within 40 days (Data Protection Act requirement)||Aimed to be within 10 working days (2 working days for the premium service)|
|Requirements||Proof of identity (returned), fee and form 3019B (less than a page)||Proof of identity (retained), photograph, fee and Police Certificate Application Form (two pages)
Declaration and photograph to be countersigned by a guarantor
|Who handles the requests||National Indentification Service (NIS)
All data subject access requests are under the authority of the Information Commissioner's Office
|ACPO Criminal Records Office (ACRO)|
These new police certificates appear to work outside the constraints of any law and any debate, they are entirely governed by the ACPO and the agreements it made with several embassies. The list of database queried is not known and what will be communicated is not yet known either (someone who has gone through the process may detail what the result reveals). The fee has more than tripled. The only positive is that it is speedier, but even that is not guaranteed: ‘ACRO will aim to produce all police certificates (standard service) within 10 working days.’
And the ACPO is most likely free to change any aspect of this scheme as it chooses.
Why introducing a paralegal process when there's already one in place that seems to do the job? If the PNC data subject access process was not adequate for visa requirements of some countries then this should be explained, debated by Parliament and put under the authority of the Information Commissioner's Office.
First published on 2008-02-24; last updated on 2013-07-11 to fix some broken links.
The Home Office consultation on Managing Protest around Parliament closes on 2008-01-17. Have you sent your response in yet?
in an afternoon of filming, at no time did i see a single act of violence towards the police from the peaceful protestors, and yet police used completely disproportionate and aggressive tactics to disperse and control peaceful sit-downs and blockades. i saw a 61 year old woman being dragged without any heed for 'health and safety' and dumped on the pavement. another elderly man was thrown over his bicycle (despite having recently had an accident leaving him in considerable pain)
there were several other arrests this afternoon, mainly for obstruction and public order offences. one person was arrested for 'organising an unauthorised protest'
See also Parliament Protest. And, don't delay sending in your response any further.
(In unrelated news, the planned demonstration by the Police Federation of England and Wales to go through Westminster on 2008-01-23 looks like it may be banned by the Metropolitan Police.)
Several readers of How to delete your DNA profile (El Reg) have queried what happens to the backups of the National DNA (and IDENT1) database. Here's Wayne Sheddan:
Do you know how the fingerprint and DNA records are removed from the backup tapes? These still contain the records from when they are first entered until they are removed? It's one thing to delete the records from the online database, it's another thing altogether to eliminate them completely from all data repositories...
Knowing most organizations it's likely the records are even online in the test systems - since these are often just a restore from production at some point in time, and are often 'refreshed' using production backup tapes...
Deleted - but not gone...
If only for cost reason it is unlikely for any backup tape to be expunged of ‘deleted’ data. Depending on the backup rotation scheme and the number of tapes used, the backed up data may have a finite lifetime and tapes degrade as they age and are eventually destroyed. Hence, it is likely that data such as fingerprints, DNA profiles and Police National Computer (PNC) records when ‘electronically deleted’ remain on backup tapes for possibly several more years. Deleted - but not (entirely) gone...
Another reader even suggested the possibility for the Police to keep a database of deleted DNA profiles. This is the standard operating procedure! ‘The Retention Guidelines are based on a format of restricting access to PNC data, rather than the deletion of that data.’ The step-down model effectively makes the data appear deleted to all but the Police and for Enhanced Checks. However, it is most unlikely the Police would maintain such a database of ‘electronically deleted’ records for ‘exceptional cases’ (as defined in these same Police guidelines) as it would be in complete contradiction to the statements they issue to each individual for whom they delete the DNA profile. Of course, if this procedure was to be changed in the future, all the records marked as stepped-down could be stepped back up.
Wayne Sheddan adds:
I just hope the legislation is such that records that have been deleted are subsequently inadmissible in court. I can just imagine the scenario where a restore is required, but the subsequent transaction roll-forward that contains the 'delete' commands fails - leaving the records in place again.... the legal status of the records must thus be the primary protection for the
Current legislation authorises the Police in England and Wales to keep the DNA profiles they collect – of innocents and convicted alike – forever. So if such records were used in court, even after the Police promised they had been deleted, they likely would be admissible as long as they were collected and retained legally. You could of course complain and/or go to trial about the fact that the Police lied to you but I'd expect that to be a separate matter entirely. (Reminder: I am not a lawyer and this is just my interpretation.)
This is yet another reason that makes the ‘exceptional case process map’, the SCD12 Senior Information Manager promised me will be published early this year so important. When describing all the steps taken when deleting electronic records (and destroying samples), the document will, hopefully, make it clear as well what happens to the backups of deleted data. Publishing this process will also mean that innocents getting their DNA profile deleted will be treated fairly as the process will be documented and the same for everyone in that situation.
P.S. Earlier this week, Professor Sir Alec Jeffreys, the geneticist who first found a way to identify people through their DNA two decades ago, told the BBC that ‘recent developments such as the retention of innocent people's DNA raises significant ethical and social issues.’
Last year I wondered: ‘Hopefully there are processes to ensure that no database record or bio-information sample is missed in the destruction and deletion procedure.’ Then I learnt that no such processes yet exist. El Reg published earlier today my article ‘How to delete your DNA profile’ that reveals that a process map is coming:
How to delete your DNA profile - A cut-out-and-keep reference guide
It's a little known fact that it's possible to have your DNA profile removed from the National DNA Database (NDNAD). While the Police have processes to gather and retain DNA samples - they don't yet have a procedure to delete the DNA of innocent members of the public.
It's complicated - but for now, this is what you should do.
Over four million profiles have been added to NDNAD since 1995. Last year, 115 profiles were deleted and 667,737 added. In the last five years, 634 DNA profiles have been removed from the database, while 2,649,937 profiles were added. In other words, the number of DNA profiles removed is around 0.02 per cent of the number of profiles added in the period - where we have the information.
According to a document called the Step model - Retention guidelines, it is considered "exceptional" for an innocent citizen to have one's DNA sample destroyed, and the associated DNA profile removed.
Currently, the destruction of DNA samples and removal of DNA records are "completed by way of an approved form being sent [by a Senior Information Manager from the Metropolitan Police Service Specialist Crime Directorate 12 (MPS SCD 12)] to designated staff in each of the departments concerned who are aware of the exceptional case procedure, once deletion / destruction has taken place we are informed and subsequently we notify the applicant, there is no process map in existence for this practice."
My own fingerprints and DNA were added to the database on 2005-07-28 when I was arrested on the London Tube.
Then ensued a complaint to the Independent Police Complaints Commission (IPCC), an investigation, an appeal to the outcome and a final decision by the IPCC. The final decision, dated 2007-05-03, "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."
The Misconduct Office informed me, on 21 August last year, that they had agreed to this request. Department SCD12 confirmed that my fingerprints were destroyed and the entry on the fingerprint database was deleted on 2007-07-24, my DNA samples destroyed and the entry on the DNA database deleted on 2007-08-20 and my Police National Computer (PNC) record deleted on 2007-08-30.
If you read the previous paragraph carefully, you may notice that the Misconduct Office requested the exceptional case to be dealt with by SCD12 before informing me of its decision, and SCD12 appears to have been prompt. So it was no longer possible for me to witness the destruction and removal actions. Hopefully there was no break in communications, and all those involved did their job properly without making any mistake. The information I received, unfortunately, leaves room for interpretation.
For instance, there was mention of "DNA sample" (singular) when two mouth swabs were taken - most likely a shortcut. Another example is that SCD12 asks "departments", but the labs that are contracted to analyse the DNA samples and keeping them are not part of the Police and hence not departments, most likely another shortcut.
So how would I know that my DNA profile really had been deleted? One way to verify this would be to plant some of my DNA at a crime scene and wait for a knock at the door. Obviously this is an experiment I will not undertake. I'd much prefer to have (verifiable) specific assurances rather than assumptions, but instead I'll have to trust the Police and the labs they use.
To avoid others having to go through this same situation, I shared these concerns with the SCD12 Senior Information Manager. The outcome: "An exceptional case process map will be available on the MPS Publication Scheme early 2008."
Having a documented process in place instead of the current ad-hoc mechanisms will go some way to increase confidence in the efficacy of what must be a complex procedure. Unsurprisingly, the Information Commissioner's Office has also been keen for a long time for the Police to implement such a step-out (deletion) procedure.
Publishing a process - which describes in detail the actions to be taken by the Police departments and their contractors - will help ensure other innocents get fair and open treatment in getting off the NDNAD. This, in turn, will help make exceptional cases the norm.