Just prior to the public launch of Contest 2 - UK's new counter-terrorism strategy - Home Secretary Jacqui Smith redefined terrorism in an interview on the BBC's Politics Show. From the included video:
What we do much more clearly in this [Contest 2] document is that we say: these are the shared values [of democracy, of tolerance, of human rights] to which we subscribe, incidentally terrorism is about killing people but is also about trying to undermine these shared values.
Fighting the ‘battle of ideas’ was introduced in the first Contest strategy. It is ironic that this government has demonstrated a lack of respect for these shared values. For instance, it has imposed restrictions on demonstrations and more recently threatened those taking photographies, including press photo-journalists. The government was found in breach by the European Court of Human Rights in its blanket and indiscriminate retention of DNA. This Home Secretary even ignored her own judges, and the law, by taking to Belmarsh prison suspects after they had been released on bail.
(Jacqui Smith also pointed out that as part of Contest 2, there are "60,000 people that we're now training up to respond to a terrorist threat, in everywhere from our shopping centres to our hotels". SpyBlog debunked this training claim in its analysis of Contest 2.)
The present legal definition of terrorism used in UK legal systems, found in section 1, Terrorism Act 2000, as amended by the Terrorism Act 2006 (Lord Carlile looked at the the definition of terrorism in a report he published in 2007):
(1) In this Act “terrorism” means the use or threat of action where— (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it— (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section— (a) “action” includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.
The definition of terrorism that has wide international agreement, according to Justice Chaskalson, is that of 'criminal acts committed with the intent to cause death or serious bodily injury [(i.e., excluding damage to property)] with the purpose of provoking terror in order to compel governments or international organisations to do or abstain doing any act'. The focus is on the act rather than on the actor, i.e., anyone performing an act of terrorism is a terrorist - be it an individual, an organisation or a state.
At one extreme we have a definition of terrorism limited to criminals causing serious bodily injuries and death, and at the other we have Jacqui Smith's interpretation that includes law-abiding individuals who do not share some system of values. Take your pick.
The universality of human rights and the work of the Council of Europe – 'Lecture Series of the Americas' speech by the Rt Hon Terry Davis, Secretary General of the Council of Europe:
While I am on the subject of the fight against terrorism, allow me to make one important point. It is vitally important to dismiss the notion that Europe is soft on terrorism. It is nonsense. The fact is that Europe has a long and bloody experience of terrorism. We have learned – the hard way - that the objective should not be to fight terrorists but to defeat them. At the end of the day, the only effective anti-terrorist policy is one which stops more terrorists than it helps to recruit.
That is why in Europe we insist on respect for human rights and the rule of law. Contrary to the belief of some people, the European Convention on Human Rights is not a collection of lax, ineffectual and utopian principles. It is a body of international law, which was drafted in difficult and uncertain times and has been tested in courts ever since. The Convention balances the rights and freedoms of individuals against the interest of the larger community. It allows for a robust, effective and fair response to the threats faced by society, including terrorism. In Europe, we reject the bogus choice between security and freedom, and we are delighted that the new US administration has embraced this approach.
In Guardian's Liberty Central, Comedian Mark Thomas explains how he got off the National DNA Database:
How I got my genes deleted
I've had my DNA struck from police records - now it's over to the rest of you 799,999 innocents
In Guardian's Liberty Clinic, Anna Fairclough tackles the ongoing controversy about the indefinite retention by police of DNA taken from people who have been arrested:
Question eight: DNA database
RJMcReady wants to know if it is possible to challenge the indefinite retention by police of DNA taken following arrest
Find out more about how to reclain your DNA. Check out GeneWatch UK and my articles Don't delay: Delete your DNA today - What to do now and Three months on, you still can't get off the DNA database - Carry on sampling....
The government had mentioned in the press that they were backing off clause 152 on information sharing. This has eventually been confirmed in Parliament. The government plans are to withdraw clause 152 entirely at the moment and to keep planning how to reintroduce some of its provisions in the future.
Michael Wills (Minister of State, Ministry of Justice) - House of Commons debates 2009-03-17:
Sharing information across Government Departments in a safe and proportionate way, with proper safeguards in place, is vital to the delivery of modern public services. That has always been Government policy.
I am grateful to the hon. Gentleman, and I hope it will give his constituents some reassurance to know that we have withdrawn the clauses that they are worried about.
In the case cited by the hon. and learned Gentleman, it became clear that the powers were drawn too widely. We have therefore withdrawn them, will redraft them, and propose to introduce data-sharing powers in future, precisely because we believe that they can be in the public interest if they are implemented safely and if they are proportionate.
The fundamental point remains that the creation of databases can be in the public interest. It is never easy to get these things right, but I think that if the hon. and learned Gentleman looks at the record of the private sector, just as much as that of the public sector, it will be clear to him that we all have a great deal to learn. We are learning those lessons, however. We have put measures in place constantly to improve data security. I entirely accept that we have some way to go, but the fact that there have been deeply regrettable breaches of data security is no reason for us to turn our back on all the public good that can be done by the creation of databases in the public interest, subject to the principles of data protection.
As some provisions in clause 152 were among the most intrusive proposals pushed by this government and would have subverted the Data Protection Act, this is an overall positive and welcomed move. It will however means that the better measures such as strengthening the powers of the Information Commissioner are also pushed back.
UPDATE: Andrew Dismore, the chair of the Joint Committee on Human Rights, said:
We welcome the Government's recent decision to remove the proposals to use secondary legislation to allow the 'bulk' transfer of large amounts of personal data - including DNA data, medical records, or children's information - between departments, agencies and councils and the private sector. But while there is some recognition that new protections, new powers, are needed when personal information is shared in the public sector, the fact that the private sector now holds vast amounts of personal information on people has not been recognised. As the line between private and public service providers becomes increasingly blurred it is important that the Information Commissioner's powers should be extended to cover the private sector.
First published on 2009-03-18; last updated on 2009-03-20.
The ACPO is launching a national campaign calling for untrained people to denounce their friends and neighbours who are a bit different - possibly foreign or with a mental handicap. This follows two similar campaigns by the Met, in 2007 and 2008, and a recent one by the GMP targeting hair salons. Here's a graphical example from this year's campaign by the Met:
The ACPO press release:
Launch of national counter-terrorism campaign
‘Don’t rely on others. If you suspect it, report it.’ That is the key message of the national counter-terrorism campaign launched today in the UK.
The campaign, which will use print, radio, outdoor and transport advertising, will remind people to be vigilant as they go about their daily business and to call the Anti-Terrorist Hotline on 0800 789 321 if they are concerned about suspicious activity.
Considering how bad trained police officers are at spotting terrorists, asking untrained people to attempt to do the same will end up creating more suspicion of anyone behaving a bit differently. This will obviously target those who have different customs and those who are afflicted by some illness, fuelling further discrimination. These campaigns also focus on common objects, recently photographers have been particularly targeted. Looking at our environment, be it buildings or CCTV surrounding us, - hostile reconnaissance as it is called by the police - is a cause for arrest but so far has not been a cause for any conviction.
Although the threat of attack remains real, the advertising campaign has not been launched in response to any specific threat.
So there has been no risk assessment?
Deputy Assistant Commissioner John McDowall, Senior National Coordinator Counter-Terrorism, said:
“This campaign is asking all members of the public to trust their instincts and contact the Anti-Terrorist Hotline on 0800 789 321 with any information they have. No piece of information is considered too small or insignificant.
“Terrorists live alongside us in our communities. They make their plans while doing all they can to blend in. They try to avoid raising suspicions about what they are up to.
“We want people to look out for the unusual – some activity or behaviour which strikes them as not quite right and out of place in their normal day to day lives – and to take responsibility for reporting it.”
Check out the interviews on the Colors Magazine website, or the profiles in the magazine itself, if you need to be convinced that this campaign will result in more innocents ending up on police files just because they're not British and white and compliant and...
The advertising campaign will run for between three and five weeks across the country from 16 March and asks members of the public to report any suspicious behaviour to the Anti-Terrorist Hotline on 0800 789 321.
All information passed to the Hotline is treated in the strictest of confidence and researched prior to police action being taken.
Issue 75 of Colors Magazine
I haven't seen it yet, but its website has been updated.
The theme is Cease-Fear. Innocent individuals affected by counter-terrorism
policies around the world have been interviewed for this issue. Last
November, I was interviewed by journalist Elena Favilli and then
visited by photographer Piero Martinello and video artist Heloisa
Sartorato. Some more details on this issue:
From the tragedy of the Twin Towers to the recent events in Mumbai, for many the threat of a new major act of terrorism necessitates relentless political, technological and day-to-day approaches to defense. But growing suspicion and fear of ‘the other’ has been the price of that defense.
Colors 75 examines this fear and its consequences: From traveling, daily life and the little frailties we can smile at, to the often-concealed violations of human rights committed in the name of security.
The case of Sami El-Haj, imprisoned in Guantanamo for six years without charge then released without an explanation, is one example featured in the magazine. David, arrested for failing to look at a policeman while taking the underground to his girlfriend’s place, is another.
Mark, Ardeth, Kevin and Hicham are just four among the thousands who can no longer fly without worrying about the color of their skin or the reputation of their religion. And as many line up jadedly at the airport check-in desk, Paul in Utah builds an anti-terrorism-attack bunker for €2500/m2, an elderly lady buys an electric pistol for €400, two Kentucky pensioners patrol their local river for terrorists, bees are trained to detect explosives and police in London cordon off a Thai restaurant after the smell of frying chili arose the suspicions of the neighbors.
Bruce Schneier and Loretta Napoleoni, a security expert and an economist, respectively, attempt to break down all this fear. “Terrorism,” says Schneier, “is a crime against the mind that uses violence as a totally casual weapon.” So casual that the “chances of being hit by lightning,” says Napoleoni, “are higher than those of dying in a terrorist attack.” If you don’t yet know whether you’re apocalyptic or integrated, find your path out of terror using the orange pages, Colors’ mini encyclopedia on terrorism and its diverse remedies.
Colors 75 / Cease-Fear: on sale from March 2009. In three bilingual editions – English plus Italian, French or Spanish.
the final draft of my magazine interview:
“They surround me and ask me to take off my backpack. They empty my pockets, loosen my belt and handcuff me. They evacuate the tube station. “Nice laptop!”, they tell me, checking my backpack. Then they arrest me and drive me to Walworth police station. They take my DNA, search my flat and seize my personal belongings.
I was on my way to meet my girfriend at Hanover Square and was just waiting for the train.
What was so suspicious about me? My jacket was allegedly too warm for the season, I entered the station without looking at the police officers, I was carrying a backpack, I looked at people coming on the platform, I played with my mobile phone and I took a piece of paper from inside my jacket. Is all this suspicious? I think it's just normal.
Do you know what they found particularly interesting in my pockets? A folded A4 page where I did some doodles in red ink, a small promotional pamphlet for the movie The Assassination of Richard Nixon, and the active part of an old work pass with its electronics visible.
This is not making people safer, it is treating normal people as criminals, and choosing to create a surveillance state. It's dangerous”.
UPDATE: Colors / Cease-Fear is now available in newsagents and specialised bookshops in London. (If you have difficulties finding a copy, it's distributed in the UK by COMAG Specialist - a very helpful company that called me back when they promised to do so to let me know of several places close by having it in stock.)
Hicham Yezza, also featured in this issue, has been jailed following a nine-month sentence. His profile, in this issue of Colors, ends with:
I was completely shocked by the surreal scenario. I was kept in custody for six days as officers went through every details of my life with intense scrutiny: my activism, my books, my writing, my love life, my photography, my work in theater and dance and my cartoons. When they failed to find anything they tried to quickly deport me for immigration charges. An obvious abuse of power, this sets dangerous precedent by stifling freedom of speech, needed now more than ever in the fight against extremism.
You can write to Hicham at:
Hicham Yezza XP9266
(I've updated the XP number, as the one I originally published was unfortunately incorrect. You can also donate to Hicham's legal fund; see at the bottom of the IRR article: The case of Hicham Yezza for details.)
First published on 2009-03-05; last updated on 2009-03-19.
Monday in Parliament:
Christopher Huhne (Liberal Democrat): To ask the Secretary of State for the Home Department how old the (a) youngest and (b) oldest person with a profile on the national DNA database is; and how old the (i) youngest and (ii) oldest person to have had a profile added to the national DNA database was at the time the profile was added.
Jacqui Smith (Home Secretary, Labour): As at 26 November 2008, the youngest person with a profile on the National DNA Database was aged under one year and the oldest was over 90 years old. The youngest person to have had a profile added to the NDNAD was under one year old, and the oldest was over 90 years old, at the time the profile was added.
The precise age of the subject profile taken from the subject aged over 90 cannot be disclosed as it would constitute personal data as defined by Article 2 of the European Data Protection Directive: information relating to an identified or identifiable individual.
On 16 December 2008, I announced that the Government would take immediate steps to remove the DNA profiles of children aged under ten from the NDNAD.
This is the second time - at least - in three months that Jacqui Smith reminds us the government would take immediate steps. Does the time it takes depends on how many times the expression 'immediate steps' is repeated? Are three 'immediate steps' longer than a 'normal step'? Or a 'rapid step"? What about a 'slow crawl'? (Francophones will remember the wonderful sketch "Et puis y'a la télé" by Coluche.)
Coincidentally, on Monday, Jack Straw was talking at the LSE and Cafe Babel reports that he spoke freely about the retention of DNA records (surprisingly this comment is not included in the official transcript):
"I would be perfectly happy to hand over everyone's DNA. Some people think that it may be sensible to have a universal DNA database."
Except that those opposed to the blanket retention of fingerprints, DNA samples and profiles and associated records of innocents include a unanimous jury at the European Court of Human Rights, and we're all waiting for the government to eventually comply with this ruling.
Data provided by Alan Campbell earlier this month concur with GeneWatch UK's analysis that what makes a difference is adding crime scene DNA profiles not DNA profiles of innocents. The answer to the question 'how many and what proportion of recorded crimes have been detected using DNA from the national DNA database' (asked by Jennifer Willott ) is 0.71% for the first half of the financial year 2008-09. (Bear in mind that detections are achieved through integrated criminal investigation, not through DNA alone.)
Likely sensing that this figure may not show the stubborn insistence of the government to hold on to as many of our DNA profiles and samples as they can in the best possible light, Alan Campbell went on to answer a question that wasn't asked but that he must have felt better about. For a different period of time, 2007-08, there was an 89% match rate if you only consider crimes that 'yielded DNA crime scene samples of sufficient quantity and quality for profiling and loading to the NDNAD'. (If you consider all crime scences where DNA material was collected, the match rates lowers to 36%.)
This demonstrates that retaining good quality DNA profiles from crime scenes is really useful - as opposed to criminalising innocents from as young as a few months old -, and how desperate the government is on this issue.
13 X '200' litre barrels
12 X'18.5' litre water containers
1 '19' litre water bottle
4 X water bottles of various sizes
10 X inflatable dinghys
33 X car tyres
numerous large / small / bike inner tubes
plastic bag containing tyre valves
adhesives & patches
2 X '3ft' plastic tubes
5 X high output air pumps
1 foot pump
2 X airpumps
4 X inflatable cushions
8 X inflatable canoes
30 X canoe paddles, incl double / single / T-bar types of bladed paddles
13 X wooden 'homemade' paddles
46 X lifejackets
4 X wet suits - (1 returned)
dry wader boots
2 X llife belts
various wooden pallets nailed together forming 5 Raft bases
8 x wooden pallet of various sizes
various sizes and lengths of wood / timber / plywood
51 x lengths of wood with yellow plastic end attachments (returned)
large quantity of 'branch' wood (returned)
31 x pieces of red coloured wood (returned)
16 x saws of varying size (4 ret)
2 x lengths of waste pipe
quantity of black foam pipe lagging
a variety of bungee cords (some ret) and various straps
4 x various sizes of hosepipe, some with connectors
5 x various sizes of netting (1 returned)
2 x plastic buckets
3 war on terror board games (returned)*
1 plastic character face mask with wig.
2 X wigs
2 X face masks
1 beige nose
black face covering - emblazoned with 'recognised enemy of the state'
1 clown outfit
unknown animal head costume
3 X cycle helmets
large assortment of coloured hard hats (some returned)
3 X hoods
2 X hats
assortment of scarves
various overalls / coveralls (all ret) incl: painting, hooded, disposable, white
3 x pairs bolt croppers (1 returned)
10 x sets of wire rope cutters (returned)
2 x pairs wire cutters
several pairs of pliers (1 returned)
4 x hacksaws ( 1 ret), 9 hacksaw blades
Prof cut large metal saw.
electric cable tester
5 x parachutes
10 x hand held radio's (returned)
4 x smoke bombs
road map with phone number
bag containing a model of the power station, aerial photo and CD (returned)
2 maps of power station. (returned)
2 x lengths of fencing mesh
14 x 'one' tonne scissor jacks (all returned)
4 x spades (returned)
3 x sledgehammers (2 returned)
2 x D rings for towing (very heavy duty)
metal tow pin
4 x climbing Karabinas
various holdalls and rucksacks (2 returned), 2 x containing rock climbing kit
3 x climbing harnesses
17 x buckles
several lengths of webbing with ratchets
large assortment of ropes
1 scaffold jack (returned)
1 car jack
6 rolls of normal duct tape
3 rolls of duct tape sprayed with silver paint
8 rolls of black duct tape
3 rolls of grey duct tape
1 roll of white duct tape (returned)
17 rolls of gaffa tape
1 roll of white gaffer tape
4 rolls of silver gaffa tape
numerous coloured spray paint cans (some returned)
spray paint adapter
various sized paint brushes (some returned)
vessels of paint primer
vessels of acrylic paint
various vessels of paint (some returned)
tin of metal paint
tube of putty
pot of ink
various containers / tubes of glues and adhesives incl: superglue, araldite resin, evostick, bostic, 'no
more nails', spray adhesives (some returned)
assortment of coloured marker pens (some returned)
pencils, crayons and chalk (some returned)
various lengths of chains incl: steel-o-chain, coil, bike, some cut/broken (some returned)
In excess of 53 x D-locks (some returned)
38 x bike locks - (some returned)
6 x combination locks
small number coil locks
small number loop locks
small number steel locks
1 of each, barrel, crook locks
2 x steering wheel locks
various padlocks incl: key, combination, anchor, (some returned)
various types of tape, including gaffer, duct (some returned)
1 wooden walking stick
5 x round wooden shields with blue rope handles
3 x capped needles
large kilt pin
bamboo sticks in a bundle
assortment of wooden fence posts / stakes
stakes with blue and black plastic end attachments (returned)
assortment / bundles of metal stakes of varying length (many returned)
1 copper pipe
3 x yellow playing darts (returned)
4 x ice axes, 2 x ice picks and 3 x pick axes (2 returned)
27 x grappling hooks (26 returned)
2 x small axes (1 returned)
staple gun (returned)
black plastic imitation rifle
2 metal rods (1 returned)
black metal handle
1 wooden handle with metal handle
2 red petrol cans
2 boxes of display fireworks
2 golf balls
1 golf club (returned)
glass containers, jars, bottles (some returned)
10 pairs of scissors
assortment of knives, incl the types of: Swiss Army, metal / wooden and plastic folding, wooden
handled, pen, kitchen, craft, flick, lock, skinning, steak, paring, leatherman.
variety of hammers (4 ret) incl, clubb, wooden handled, floral, claw, mallett
various power / hand drills and drill bits
assortment of screwdrivers (3 returned)
selection of spanners / wrenchs inc, adjustable, fixed, bike (1 returned)
nails (some returned)
assortment of clips, inc jubilee, metal
various wires / cables incl: welding, plastic coated, coiled, solder
jointed metal bike rack - damaged
2 x electrical leads (small)
various yellow studs/rivets
bolts with washers
solder and assortments of metal wire
nuts & bolts
small screws and safety pins
2 x blue metal wheel braces
1 metal object
2 flashlights & 1 dragon lamp
1 book titled 'Wholey Irrisponsable Experiments'
assortment of leaflets / flyers/ newsletters / booklets / envelopes
Anarchist literature booklet
Camp for climate handbook
bag containing several flags
small number of badges
Swiss Card (Quattro Black)
1 climate change card
1 number stamp
bag of balloons and party poppers
assortment of strings / twine / ribbons / cords, excl: ropes and cables
numerous washing lines
assortment of plastic bags / bin liners/ cloth (returned)
various sizes / rolls of carpet / cloths
blankets / rugs
large number of ground mats
14 X white plastic table tops
large number of plastic rings
midi block brush
2 pairs of nail clippers
white tub containing soap, Potassium Hydroxide flakes and Methonol
dealer' bag containing traces of white powder
Paracetomol tablets in box
Diazipam tablets 5mg
reflective trailer marker
solar power power leads
2 X stick candles
camera - (found property)
50m extension lead
ladies mountain bike
1 box containing 17 plastic fog horns (returned)
package of green matter (returned)
1 pair of blue ear defenders (returned)
assortment of gloves incl: latex, plastic, heavy duty gripper (returned)
This poetic list is the description of the property seized by Kent police as part of Operation Oasis; the operation conducted at Climate Camp in Kingsnorth in August 2008. Will there be an exhibition? This list was published by the BBC, and that's the authoritative source for it writes the Kent police. This operation cost £5.9m. It was initially claimed 68 out of the 1,500 officers involved sustained injuries from the protesters. It was later found out that "Kent police have informed the Home Office that there were no recorded injuries sustained as a result of direct contact with the protesters." Here's a mashup of the lists of injuries:
four injuries involved any contact with protesters at all and all were at the lowest level of seriousness with no further action taken.
officer stung on finger by possible wasp
officer injured sitting in car
officer succumbed to sun and heat
officer cut his arm on a fence when climbing over it
officer cut his finger while mending a car
officer used leg to open door and next day had pain in lower back
three officers had succumbed to heat exhaustion
three had toothache
six were bitten by insects
others had diarrhoea, had cut their finger or had headaches
To get a feel about getting in the Climate Camp, check out the 18-minute video documentary by Jason Parkinson about police stop and search of journalists. The Guardian has since obtained footage shot by police, accompanied by their own critical commentary that shows how their officers monitored campaigners and the media – and demanded personal information. Also revealed is that the Police are maintaining a database of the details of thousands of political campaigners and journalists. What some police officers think about freedom of the press, an essential requirement for a democratic society:
"A lot of press officers aren't there. Just think they can bloody wander in and out of the field. It's wrong, I think," the lead officer remarked when the ITV crew was in shot.
The combination of the stop of search powers of section 44 of the Terrorism Act 2000 (which have more to do with reassuring the public than catching terrorists), the new arrest powers brought in with section 76 of the Counter-Terrorism Act 2008 - in particular when taking photographs of police officers, this database of activists and press, and the promise of Superintendent David Hartshorn that the 'Police are preparing for a "summer of rage"' make for a bad cocktail. How many more innocents, who have committed no crime, will have to be surveilled and arrested before the situation improves?
Carry on sampling...
Almost three months on from the unanimous ruling by the European Court of Human Rights (ECtHR) against the UK's mass retention of DNA of innocent people, the situation has turned worse. Although eventually the UK should become compliant with the ruling, police forces are adopting a wait and see attitude, while Jacqui Smith is pushing back any response.
Meanwhile, the Government has tabled an amendment giving sweeping powers on DNA retention, use and destruction to the Secretary of State.
At the end of last year, in Don't delay: Delete your DNA today, looking at the ECtHR ruling and at how few individuals had requested to be taken off the National DNA Database and how even fewer had succeeded, I wrote "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."
Individuals who wrote, since the ECtHR ruling, to the chief of police of the force which took their DNA received stock answers telling them to wait until the Home Office decides to issue further instructions. (Many thanks to all those who wrote to me with copies of the letters they received.) This is most unsatisfactory and possibly even illegal. From the wording of these letters and of some responses to Freedom of Information requests I made to all the police forces, it appears that chief constables are extremely reluctant to consider any case until new guidance arrives. The police are known to want to cling to any data they have. The five forces that were ordered by the information tribunal to the delete old criminal convictions 'held for longer than necessary' from the Police National Computer are also considering appealling against this decision.
They want to have their cake and eat it. If nothing has changed, then they still operate under the ACPO guidelines, and hence are under the obligation to consider the individual merit of each request, and whether they are exceptional enough. A judicial review in case of a negative decision would likely take into consideration the ECtHR ruling and hence put pressure on chief constables to grant requests from innocents - if they consider them. I would be interested to hear from anyone initiating a judicial review in such circumstances. Here are some of the stock answers currently sent out:
At the present time whilst the judgement in the European Court of Human Rights has gone against the UK it does not have any impact until UK law is changed by parliament, so at the present time no changes can be made to police procedures.
I can assure you that... Police will comply with whatever changes are made to the law. I know that the Home Office are dealing with the implications of this judgement but at the present time I do not know what these changes will be or when they will come into force.
From a different police force:
Since the case the Government has been preparing a response to this ruling, which is currently under consideration by their lawyers. It should be noted that whilst this judgement has gone against the Government, it does not have any impact on the current retention policy until the law is changed by Parliament. It therefore follows that the current legislation and procedures remain unaffected by this ruling.
In anticipation of receiving further guidance and the necessary changes in the law, your details will now be retained within my department and dealt with in the appropriate way as soon as possible.
And a more detailed one from yet another force:
On 4th December 2008 the European Court of Human Rights unanimously held in the case of S & Marper that the retention of fingerprints and DNA of all persons, suspected but not convicted of offences, constituted a disproportionate interference with the individual's right to respect for a private life and could not be regarded as necessary in a democratic society.
The Government is expected to provide a considered response to this ruling, which is currently under consideration by their Lawyers.
Whilst this judgement has gone against the Government, the current domestic legislation remains unaffected by the ruling and it does not therefore have any impact on the retention of fingerprint and DNA policy until the law is changed by Parliament.
Individuals who consider that they fall within the ruling in the S & Marper case are being advised to await the full response to the ruling by the Government prior to seeking advice and/or action from the Police Service in order to address their personal issues on the matter.
Considering the ECtHR ruling and Jack Straw's intervention in the Commons the day of the judgment: 'We have an obligation to report initially to the Council of Ministers and the Council of Europe by March.', it would seem reasonable to expect the detail of the Government's plan, if not actions, to be announced before the end of March.
The Joint Committee on Human Rights (JCHR) has a similar understanding and is expecting proposals from the Government by March 4th. Following the lack of substantive response from Vernon Coaker at the oral evidence session of the JCHR on 2008-12-09 (see Q65), the same day, Andrew Dismore, MP and Chair of JCHR, sent a letter to Jacqui Smith "to ask for further information about the Government's response to the judgment of the Grand Chamber of the European Court of Human Rights in S and Marper v United Kingdom (App. No 30562/04 and 30566/04, 4 December 2008)."
This letter includes a series of specific questions:
I am writing to ask for further information on the Government's response to this judgment:
• What general measures does the Government consider are necessary in order to remove the breach of the Convention identified by the Grand Chamber?
• Does the Government now intend to destroy all fingerprints or samples currently held on the national DNA database, or otherwise held by the police, except those which were gathered during an investigation which led to the donor's conviction? If not, why not?
• Does the Government intend to amend the provisions of Section 64 (1A) PACE?
• Specifically, does the Government intend to bring forward proposals similar to those which currently apply in Scotland? If not, why not?
• If the Government considers that legislative changes are necessary to remove the breach, does the Government intend to (a) use the remedial order process provided for in the Human Rights Act; or (b) bring forward proposals in the expected Policing and Crime Bill.
• If the Government intends to use a remedial order, I would be grateful if you could explain whether the Government intends to use the urgent or non-urgent procedure.
• If the Government considers that legislative changes are necessary but does not intend to bring forward proposals in the Policing and Crime Bill or in a remedial order, I would be grateful if you could provide a detailed explanation for that view.
• If legislative reform is proposed, my Committee would be grateful for copies of the draft proposals as soon as they are available.
• If the Government does not consider that legislative changes are necessary, please provide a detailed explanation for that view.
Following the timetable we recommended in our earlier reports, we would expect the Government to write to us with their initial reaction to the judgment by 4 January 2008 and with their proposed response to the judgment, including any proposals for general measures which the Government considers necessary to remedy the breach before 4 March 2008.
[emphasis in the original]
Again on 2008-12-09, this time in the Lords, Lord West of Spithead gave the strong impression that the Government was already well prepared and could move soon, well in time for the deadline, so far believed to be early March:
My Lords, the UK Government are bound by international law to comply with the judgment of the European Court of Human Rights. The European Convention on Human Rights was established to protect the interests of us all. However, it will be for the UK Government and Parliament to consider how best to give effect to the judgment. We established a contingency planning group earlier this year to look at the potential implications of a violation judgment. The group has been dealing with a hypothetical situation up until four or five days ago, and it will now focus its planning on the implications of the judgment. [...]
Until we come up with changes to our recommendations - as I said, we must come up with proposals by March 2009 - nothing will change.
However, Jacqui Smith's response to the JCHR, dated 2009-01-05, has an entirely different interpretation of the situation. Her letter doesn't answer the questions from Andrew Dismore and moves the deadlines further into the future - April for an initial response with a review by the ECtHR in June:
Technological developments and, in particular, the use of DNA in investigations has been one of the breakthroughs for modern policing in which we have led the world. It has contributed to convictions for serious crimes and also the exoneration of the innocent. However, I am conscious that we need to ensure that our policy enjoys public confidence. We need also, of course, to implement the judgement of the ECtHR. As you may be aware I announced on 16 December at the Intellect trade association* that we will consult via a White Paper on Forensics next year on bringing greater flexibility and fairness into the system, using a differentiated approach to the retention of samples, DNA profiles and fingerprints.
You will be aware that implementation of ECtHR's judgements are overseen by the Committee of Ministers. I am informed that the first substantive consideration of the Government's response will be at the June meeting for which papers will be circulated in early/mid April. We will send plans for implementation to the JCHR when we send them to the Committee of Ministers.
Things got further muddled last Friday, when the Government submitted an amendment to the Policing and Crime Bill, which it claims will implement the judgment of the European Court of Human Rights in the Marper case. Thanks to GeneWatch UK for spotting that amendment, which has otherwise not received much publicity. From a cursory reading, this amendment gives a blank cheque to the Secretary of State:
After section 64A of the Police and Criminal Evidence Act 1984 (c. 60) insert - "64B Retention and destruction of samples etc
(1) The Secretary of State may by regulations make provision as to the retention, use and destruction of material to which this section applies.
(2) This section applies to the following material - (a) photographs falling within a description specified in the regulations, (b) fingerprints taken from a person in connection with the investigation of an offence, (c) impressions of footwear so taken from a person, (d) DNA and other samples so taken from a person, (e) information derived from DNA samples so taken from a person.
(8) The regulations may make provision amending, repealing, revoking or otherwise modifying any provision made by or under an Act (including this Act).
A delayed response, no consultation yet (though they're often not effective) and an amendment letting the Home Secretary change the law not only to comply with the ECtHR ruling - whichever way she interprets it - but possibly to authorise new uses of our DNA without any review is what's on the table. And there's another risk of re-creating a wide DNA database via another route, using the data sharing clause as currently in the Coroners and Justice Bill. Hopefully the Committee of Ministers and the JCHR will ensure the Government doesn't delay further any action and fully adhere to the spirit of the ECtHR ruling as well as its letter. To contrast, in Scotland, the Justice Secretary announced last week that DNA information will be held indefinitely by police only where a person has been convicted in the criminal courts.
* In her speech to the Intellect Trade Association, the one promise Jacqui Smith made was to take immediate steps to take off the NDNAD the records of around 70 children under 10. A month later, Jacqui Smith reiterated that she had said mid-December the 'the Government would take immediate steps'. She also explained that these statistics of 70 under 10 are subject profiles submitted by police forces in England and Wales, as of 30 September 2008. The Government and the police always mention a replication rate of about 13 per cent when estimating how many individuals are in the NDNAD from the number of profiles - not in this instance. There has been no confirmation that these profiles and associated records have been deleted, nor the samples destroyed, and I am awaiting a response to a Freedom of Information request querying this promise.
(The Parliament website has since published the Public Bill Committee debate about the amendment mentioned in the article.)