Sat, 29 Aug 2009

Notes on the PNC

Much information about the Police National Computer, some well-known, some less-so, can be found in the work of the Information Commissioner's Office and Information Tribunal. I am summarising below general information about the PNC obtained mostly from a July decision notice (pdf) by the Information Commissioner about the National Police Improvement Agency (NPIA), from an older decision, from last year, by the Information Tribunal about five police forces (pdf), and from the NPIA.

The PNC

The PNC is an intelligence system, designed to support operational policing. Statutory authority for the existence of the PNC is provided by the Police and Criminal Evidence (PACE) Act 1984:

27.—(4) The Secretary of State may by regulations make provision for recording in national police records convictions for such offences as are specified in the regulations.

The Chief Constables or Officers of the 43 England and Wales police forces through their Association of Chief Police Officers (ACPO) pool much of their collective intelligence on the PNC. The PNC holds conviction data gathered from the Courts (which are often referred to as ‘hard data’) and other data such as arrests and charges (which are often referred to as ‘soft data’) provided by Chief Constables. The latter includes "Non convictions summary". The PNC also identifies whether DNA and finger prints are held on an individual. The technology used is old and is planned to be updated. In addition each force has a variety of systems where intelligence is held locally. Each of the 43 police forces in England and Wales can add information to the PNC, and can also delete information.

Uses of information held on the PNC other than for operational policing purposes include providing assistance to the Crown Prosecution Service (CPS) (or any other prosecuting agency) in the prosecution of an offence, and the courts in the administration of justice; assisting organisations such as social services departments and probation services in multi-agency work to protect the public, in particular young and vulnerable persons; disclosure of information in the context of employment vetting to the CRB; and public safety and protection of life and property, for example assisting members of the public in discovering the whereabouts of missing persons.

The Europen Courts of Human Rights explained that records on the PNC are not only accessible to the police, but also to 56 non-police bodies, including Government agencies and departments, private groups such as British Telecom and the Association of British Insurers, and even certain employers. Furthermore, the PNC is linked to the Europe-wide Schengen Information System.

The PNC is not in itself a legal entity, it is a computer system maintained by the National Police Improvement Agency (NPIA). It was set up 35 years ago. The PNC contains records from a number of separate information databases. The information records stored on the PNC are described in a written answer as follows:

The PNC is a dynamic database which is constantly updated. According to the NPIA annual report and accounts 2008-09 (pdf), the "PNC holds over 9.2 million nominal (people) records, 52 million driver records and 55 million vehicle records [and] PNC usage in the 12 months ending April 2009 was approximately 185 million transactions. However, according to information provided by the NPIA to the Information Commissioner in the past two years, there are "45,000,000 records on the PNC". Alan Campbell's figures in his written answer are close to those of the NPIA annual accounts.

Further details on the PNC Names database is found in the appendix of the PNC Code of Practice. The Names index holds data on persons who fall into one of the four categories below:

A record can be created for a number of reasons, including when a person:

A record can also be created in relation to a person who is missing in certain circumstances or has otherwise come to notice.

The PNC is an ADABAS (Adaptable Database System) management system. It does not use Structured Query Language (SQL) to search for information. Searches are carried out using ‘natural coded software’ using a QUEST (Querying Using Enhanced Search Techniques). A QUEST enables searches of the names database to identify suspects through the use of gathered information such as physical description and personal features. QUEST is not designed as a statistical tool; it is an operational tool used to identify offenders by inputting various descriptive parameters. The NPIA is able to run a QUEST to perform a tally of records within a set of given parameters. This function allows PNC operators to compare and contrast records within the descriptive parameters to define a search down to a reasonable number of responses. There is a display limit of 2000 responses for any tally. The PNC cannot be searched using free text fields.

PNC nominal records

The PNC is capable of recording more than 300 data items against an individual, including the offence, its code and the date it occurred. (The written answer states that the Names database has 253 fields available and that where fields are sub-divided, this has been counted as one data field - so these two figures may be consistent and are anyway of the same order of magnitude).

An Arrest/Summons reference number is generated by the PNC after the nominal details (name, birth date, sex and colour) are entered and the following mandatory fields are completed:

The type of information that may be recorded on the PNC is governed by Regulation 3 of the National Police Records (Recordable Offences) Regulations 2000 (SI 2000/1139):

3.—(1) There may be recorded in national police records—convictions for; and cautions, reprimands and warnings given in respect of, any offence punishable with imprisonment and any offence specified in the Schedule to these Regulations [see the post Recordable offences]. In paragraph (1) above—the reference to an offence punishable with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any enactment on the punishment of young offenders; “caution” has the same meaning as in Part V of the Police Act 1997; and “reprimand” and “warning” mean a reprimand or, as the case may be, a warning given under section 65 of the Crime and Disorder Act 1998. Where the conviction of any person is recordable in accordance with this regulation, there may also be recorded in national police records his conviction for any other offence of which he is convicted in the same proceedings.

Changes to the codes for crimes on the PNC is the responsibility of the National Identification Service (NIS), a centrally funded organisation within the Metropolitan Police Operational Information Service.

Information held in the PNC is subject to ‘weeding’ rules defined in the MoPI Guidance - Step model - Retention Guidelines. The information may be "stepped down", i.e. only open to inspection by the police, after defined time periods. The information may be deleted when a subject reaches 100-year old or when a case is considered "exceptional" enough.

The legal framework is permissive, not mandatory. Certain conviction information may be recorded in national police records; there is no statutory obligation to record conviction information, and nor is there an obligation to retain conviction information (either for any particular period, or indefinitely) once it has been recorded. Nor is the legislative framework comprehensive. Certain legal offences are not liable to imprisonment and are not specified in the Schedule to the Regulations, and hence they are not recordable. For instance, it is understood that the offences created by the Data Protection Act itself are at present not recordable. Therefore even if all recordable offences were recorded and retained indefinitely, the PNC would not be a comprehensive record of all criminal convictions.

PNC data integrity

The information held in the PNC is saved three times a week. Three ‘generations’ of data are kept at any given time. As a new generation of data is saved, the oldest generation is removed.

The NPIA do not retain a ‘snap-shot’ of the data on the PNC for any particular time.

The NPIA have an audit trail of changes made to the PNC which allows the contents to be recovered to its last iteration.

Changes to PNC software and those at database level (not to be confused with updates to individual records made by police users) are recorded in hand over documents which are retained for approximately 3 years.

At present, step down is a manual process. Where a record is stepped down from the PNC then conviction information is removed from the PNC, although a record of an individual’s name and other identifying information remains on the PNC. The individual’s record on the PNC would also include an indication that information has been stepped down. Information is held in paper records, not on computer, under the control of ACPO. It is intended that at some point in the future the step down process should operate automatically, not manually. What is envisaged is that stepped down information will be held on the PNC, but that special measures will be taken to ensure that it is only accessible to police users of the PNC.

NPIA's role in relation the PNC

The NPIA maintains and delivers the PNC and acts as a central resource for police forces. The NPIA maintains the ‘hardware’ of the PNC.

The NPIA does not determine policy in respect of the data recorded on the PNC. It is outside of the NPIA’s remit to dictate to police forces how data should be entered onto PNC; this is the responsibility of the Association of Chief Police Officers (ACPO).

The NPIA produces national plans. This does not involve interrogating data held on the PNC.

The NPIA use information from the PNC for the purpose of operational research, for and on behalf of police forces.

Within the NPIA are a number of organisations such as the Missing Persons Bureau (MPB) and the Serious Crime Analysis Squad (SCAS). These use the PNC in limited ways for their specific functions; for instance, the SCAS uses PNC information to obtain intelligence on known offenders and on suspects for outstanding serious crimes. They do not input data into the PNC. The PNC recorded 7,625 transactions by the NPIA SCAS and MPB during 2008.

Note that even though the NPIA argued "that it holds and is responsible for the PNC in its capacity as Data Processor and it is the individual police forces who are the Data Controllers", the Commissioner found in its recent decision notice that "Where information is held by a public authority, to any extent for its own purposes, then it holds that information otherwise than on behalf of information for the purposes of the Act." This means that, for instance, Freedom of Information requests about the PNC can be sent to the NPIA and not just to the police forces.

These notes about the PNC are a mash up of several sources, and in some instances they highlight inconsistencies in the information available. There's no obvious explanation for the discrepancy in the number of records, especially as the conflicting figures originally came from the same organisation, the NPIA. On a more general level, there seems to be two different understandings for the "PNC": either a database of arrested individuals and crimes, or a more encompassing system made up of several databases. While the latter may be more accurate, the former seems to be closer to the general understanding as well as to the scope defined in PACE 1984.

First published on 2009-08-29; last updated on 2009-08-31.

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Sun, 23 Aug 2009

Sean Rigg - no justice, no peace, no CCTV footage

Friday marked the one year anniversary of the death of Sean Rigg. He died while in police custody after he was brought to Brixton police station where he was placed in a metal cage outside at the back of the station. His family and the United campaign against police violence organised a rally followed by vigil outside Brixton police station to demand justice for Sean Rigg and for other deaths in police custody. Black men figure prominently among the death in custody, and Brixton police has been involved in too many of these.

We walked from the street where Sean Rigg was living up to the Brixton police station. Families and friends of several men killed in police custody had joined the vigil and said a few words. Jo Lang, a friend of Blair Peach who died 30 years after being hit on the head by a police officer at a demonstration, stressed the necessary unity of this campaign, "there are numerous more people who are killed in police custody but we never hear about them because there is no one speaking out for them. That is why it is so important we are here today." Thirty year later, the Cass report into the police actions on the day Blair Peach died has still not been released, though when it is eventually published Jo Lang expects it to be heavily redacted. Marcia Rigg-Samuel and Samantha Rigg-David explained what little they have managed to find out about the death of their brother, and the many failures of the IPCC. It may be years before an inquest in Sean Rigg's death happens. The evening concluded with the release of black balloons, some from a coffin, and lighting of candlelights.

Vigil for Sean Rigg Vigil for Sean Rigg

What is known of what happened to the CCTV footage gives all the impression of a cover up. Here's the situation about the missing CCTV recordings as described in a Guardian article by Paul Lewis (the Guardian also published a video about the family's campaign to find out what actually happened):

There were no cameras in the police van that took Rigg to the police station and the Independent Police Complaints Commission (IPCC), which is expected to complete its investigation next month, initially told Rigg's family that only CCTV footage seized from inside the station showed the cage where he died – and the cameras involved had limited views.

Convinced there were more outdoor cameras nearby, Rigg's family demanded an audit of security cameras at the station. IPCC investigators then conceded there were more cameras overlooking the cage. But two weeks later, they said they had tried to obtain the tapes and found the recorders had not been working for three months.

Rigg's family suspect a cover-up. The IPCC's claim about CCTV contradicts repeated assurances given to the family by a senior police officer two days after Rigg died. Suzanne Wallace, a chief inspector who was in charge of the station, was caught on tape saying CCTV was working and recordings had been seized.

[...]

For Rigg's family, the missing CCTV footage raises serious questions about the actions of police on 21 August last year. They want to know why he was left for an hour in an outdoor cage, which functions as a station holding area, rather than taken into the custody suite.

One theory held by the family is that officers knew the cage was in a CCTV "blind spot" and left Rigg there so there would be less evidence of his deteriorating condition upon arrival at the station.

Another is that the tapes were destroyed during the 27 days it took the IPCC to attempt to seize footage from outdoor cameras.

Rigg's sister Marcia, 45, said: "It is my opinion that this is a deliberate cover-up by the police, and the IPCC [by failing to rigorously investigate] are allowing that cover-up. It's all part of collusion and to me the IPCC are certainly not independent."

Records show some cameras at Brixton police station were reported as faulty. However an annual maintenance check of all CCTV completed on 12 August, nine days before Rigg died, found no problems with the cameras that the family believe should have recorded Rigg's last moments alive.

[...]

The van entered the police yard at 7.53pm and Rigg was left inside for about 10 minutes before officers escorted him to the cage. CCTV inside the station's custody area recorded obscured footage of Rigg in the cage. His family, who have watched the images, say they show him collapse repeatedly and lose consciousness.

[...]

In the family's view, the IPCC has yet to give an adequate explanation about the missing CCTV. "That was the way we were going to find out what was going to happen that night," said Wayne Rigg. "We were told that the cameras were working. We went and saw the positions of these cameras. Then to be told the cameras weren't working – we were devastated."

This follows a similar patter to what happened more recently when Ian Tomlinson died after being hit by police officers during the G20 demonstration, the story about the CCTV evolved from denial to possible existence. Unfortunately for the Rigg family there was no independent amateur footage available.

Update: Fourmanfilms has posted a video filmed at the rally and vigil.

First published on 2009-08-23; last updated on 2009-08-24.

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Thu, 20 Aug 2009

Acpo's advice to chief constables about DNA retention: don't change anything

Excerpts from a letter by Ian Readhead, director of information at ACPO, sent last month to all chief constables have been widely quoted in the press:

Until that time [when new guidelines are set by the Home Office], the current retention policy on fingerprints and DNA remains unchanged.

Individuals who consider they fall within the ruling in the S and Marper case should 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 issue on the matter.

Acpo strongly advise that decisions to remove records should not be based on [the government's] proposed changes. It is therefore vitally important that any applications for removals of records should be considered against current legislation.

There's nothing new in this advice. Here's an excerpt from the letter sent by ACPO to chief constables on 2008-12-09, just a few days after the European Court of Human Rights ruling in S and Marper v. UK:

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, it does not have any impact on the current retention fingerprint and DNA policy until the law is changed by Parliament. It therefore follows that the current legislation and procedures remain unaffected by this ruling.

Individuals who consider that they fall within the ruling in the S & Marper case should await the full response to the ruling by Government prior to seeking advice and/or action from the Police Service in order to address their personal issues on the matter.

Once the legal interpretation has been established, further advice will be provided via the ACPO Criminal Records Office.

Last March, I wrote about how this advice is being followed by chief constables in Three months on, you still can't get off the DNA database. Read that article for typical letters from chief constables to individuals requesting to get off the NDNAD. Anecdotal evidence shows that chief constables have attempted to rebuff those writing to them to have their DNA samples destroyed, DNA profile deleted and other associated records (fingerprints, palm prints, PNC) deleted by responding along the lines of "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" (excerpt from such a response).

This is of course not acceptable as until new laws and regulations are put in place, "applications for removals of records should be considered against current legislation" and regulations on their individual merit. The infamous Retention guidelines for nominal records of the police national computer describes the procedure to decide whether a case is deemed to be exceptional enough for the request to be granted. These guidelines are issued by the Association of Chief of Police Officers (ACPO), a private company.

If your DNA profile is on the NDNAD do apply to get off it. Few have done it. Combined figures for 2008 obtained from 20 police forces that did record this information show that out of 535 requests received, 211 succeeded. You will need to persevere and don't take no as an answer. As shown by Damian Green who just announced his DNA profile has been removed, it is possible to successfully argue one's case is exceptional. (Ironically, he was commenting on the "draconian" retention guidelines only a few days before his arrest and DNA sampling last November.) However, being an MP may have helped him. Dr Helen Wallace from GeneWatch UK said: "We congratulate Damian Green on his success but it highlights how arbitrary and unfair the system is. People who are famous or get press coverage for their case seem to get removed while the vast majority of people do not." For the vast majority, there's help in the form of a website launched earlier this year by a coalition of NGOs, including GeneWatch UK: ReclaimYourDNA.

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DNA, a forensic silver bullet?

DNA evidence is perceived by many to be virtually infallible, a truth machine in criminal investigations. This is not the case. Many of the fallacies about DNA's forensic powers are detailed in The Potential for Error in Forensic DNA Testing (and How That Complicates the Use of DNA Databases for Criminal Identification) (pdf), a very clear and easy to read paper published last year by Professor William C. Thompson, Department of Criminology, Law & Society, University of California, Irvine:

The infallibility of DNA tests has, for most purposes, become an accepted fact—one of the shared assumptions underlying the policy debate.

In this article, I will argue that this shared assumption is wrong. Although generally quite reliable (particularly in comparison with other forms of evidence often used in criminal trials), DNA tests are not now and have never been infallible. Errors in DNA testing occur regularly. DNA evidence has caused false incriminations and false convictions, and will continue to do so. Although DNA tests incriminate the correct person in the great majority of cases, the risk of false incrimination is high enough to deserve serious consideration in debates about expansion of DNA databases. The risk of false incrimination is borne primarily by individuals whose profiles are included in government databases (and perhaps by their relatives). Because there are racial, ethnic and class disparities in the composition of databases, the risk of false incrimination will fall disproportionately on members of the included groups.

This article will discuss major ways in which false incriminations can occur in forensic DNA testing, including coincidental DNA profile matches between different people, inadvertent or accidental transfer of cellular material or DNA from one item to another, errors in identification or labeling of samples, misinterpretation of test results, and intentional planting of biological evidence. It will also discuss ways in which the secrecy that currently surrounds the content and operation of government databases makes these issues difficult to study and assess. It will conclude by calling for greater openness and transparency of governmental operations in this domain and a public program of research that will allow the risks discussed here to be better understood.

[...]

Do innocent people really have nothing to fear from inclusion in government DNA databases? It should now be clear to readers that this claim is overstated. If your profile is in a DNA database you face higher risk than other citizens of being falsely linked to a crime. You are at higher risk of false incriminations by coincidental DNA matches, by laboratory error, and by intentional planting of DNA. There can be no doubt that database inclusion increases these risks, the only real question is how much. In order to assess these risks, and weigh them against the benefits of database expansion, we need more information.

It is well worth taking the time to read this article in full. The risk of false incrimination from DNA evidence is only one of the reasons, especially for innocent or those arrested for some trivial matter, not to want to be on a DNA database such as the NDNAD. Other objections include the stigma of being on a criminal intelligence database (an honorary criminal), risks to privacy, database function creep and other misuse by the database state, and concerns about the efficacy of retaining DNA of individuals (only retention of DNA from crime scenes has been shown to drive detections).

The risk of intentional planting of DNA by criminals has been in the news as The New York Times reported earlier this week that scientists in Israel "showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person." Simpler scenarios include planting biological evidence taken from someone else. Yet another technique developed at the University of Western Australia is to create a spray made from someone else DNA which, under certain condition, can mask the profile of the actual DNA found in a bloodstain or other samples from crime scenes. William C. Thompson reiterates the risks that we may face if or when criminals start using these techniques:

If someone plants your DNA at a crime scene, it might throw police off the trail of the true perpetrator, but it is unlikely to incriminate you unless your profile is in the database. The authorities are likely to search the profile of the crime scene sample against a database, but if your profile is not in the database, they will find no match and will be left with just another unknown sample. Suppose, however, that you are unlucky enough to have your profile in the database. In that case, the police will likely find it, at which point they will have something far better than an unknown sample—they will have a suspect. Given the racial and ethnic disparities that exist in databases, that suspect is disproportionately likely to be a minority group member.

[...]

Kary Mullis, who invented PCR [technique used to create highly concentrated solutions of DNA fragments, such as in the spray scenario], anticipated this potential misuse of the technique. In a conversation I had with him in 1995, Mullis jokingly discussed creating a company called “DN-Anonymous” that would sell highly amplified solutions of DNA from celebrities, or from large groups of people, that criminals could use to cover their tracks. Although Mullis was not serious about doing it himself, he predicted that someone would do so within the next ten years. As far as I know, Mullis’ prediction has yet to come true, but it may only be a matter of time before materials designed to stymie DNA tests (by planting other people’s DNA at crime scenes) become available for sale on the internet along with kits designed to thwart drug tests.

Another incorrect assumption is to believe that everyone has only one DNA profile. Amazingly, for a small number of persons this is not true: analysis of different samples from the same individual can result in distinct DNA profiles. In some bone marrow transplant treatments, patients' blood contain a mixed DNA profile. "Chidambaram [of the Alaska State Scientific Crime Detection Laboratory in Anchorage] argues that potential marrow donors should be informed of the small risk of their DNA profile turning up in a crime database if the recipient later commits an offence." Another instance where the unique DNA profile assumption doesn't hold is for those affected by the rare chimerism condition, when two fertilised eggs fuse to become one foetus. Chimeras end up with two separate strands of DNA. Depending on what DNA sample is taken, one of two distinct DNA profiles may be obtained.

DNA evidence has proved useful in criminal investigation but it is no silver bullet. Mistakes are made, DNA evidence can be planted at crime scenes, it can even be fabricated and some persons have more than one DNA profile. Limitations in the evidential powers of DNA need to be understood by judges and juries... and the Home Office.

For a better understanding of the Home Office plans, check out some of the several public responses to Home Office consultation collated by GeneWatch UK. Most of the responses and advice currently available are deeply critical of the science and/or the legality (pdf) of the Home Office's proposals for 'Keeping the right people on the DNA database'.

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Mon, 17 Aug 2009

Recordable offences

DNA samples can be taken from anyone arrested for a recordable offence. The list of such offences has evolved with several statutory instruments (SIs) amending previous legislation and can be difficult to figure out. This post aims to remedy this!

Recordable offences are those which are recorded on the Police National Computer to form part of a person's criminal record. They include convictions for; and cautions, reprimands and warnings given in respect of, any offence punishable with imprisonment and other offences from a scheduled list defined in the National Police Records (Recordable Offences) Regulations 2000 (SI No. 1139) as amended in 2003 by SI No. 2823, 2005 by SI No. 3106 and 2007 by SI No. 2121 – see below. (Conviction for any other offence in the same proceedings may also be recorded in national police records.)

Offences punishable with imprisonment

Since 1997, there have been 1,036 new imprisonable offences, with a big acceleration from 2003 onwards (257 from May 1997 to January 2004, 174 in 2005, 137 in 2006 and 133 in 2007). More detail on offences can be found at:

Specified offences (schedule)

Below is the list of other specified offences defined in the amended National Police Records (Recordable Offences) Regulations. (The number in front of each offence is the section number in the amended regulations.)

1. Giving intoxicating liquor to children under five (section 5 of the Children and Young Persons Act 1933);

2. Exposing children under twelve to risk of burning (section 11 of the Children and Young Persons Act 1933);

3. Failing to provide for safety of children at entertainments (section 12 of the Children and Young Persons Act 1933);

4. Drunkenness in a public place (section 91 of the Criminal Justice Act 1967);

5. Touting for hire car services (section 167 of the Criminal Justice and Public Order Act 1994);

6. Purchasing or hiring a crossbow or part of a crossbow by person under the age of seventeen (section 2 of the Crossbows Act 1987);

7. Possessing a crossbow or parts of a crossbow by unsupervised person under the age of seventeen (section 3 of the Crossbows Act 1987);

8. Failing to deliver up authority to possess prohibited weapon or ammunition (section 5(6) of the Firearms Act 1968);

9. Possessing an assembled shotgun by unsupervised person under the age of fifteen (section 22(3) of the Firearms Act 1968);

10. Possessing an air weapon or ammunition for an air weapon by unsupervised person under the age of fourteen (section 22(4) of the Firearms Act 1968);

11. Possessing in a public place an air weapon by unsupervised person under the age of seventeen (section 22(5) of the Firearms Act 1968);

12. Throwing missiles (section 2 of the Football (Offences) Act 1991);

13. Indecent or racialist chanting (section 3 of the Football (Offences) Act 1991);

14. Unlawfully going on to the playing area (section 4 of the Football (Offences) Act 1991);

15. Trespassing in daytime on land in search of game, etc. (section 30 of the Game Act 1831);

16. Refusal of person trespassing in daytime on land in search of game to give his name and address (section 31 of the Game Act 1831);

17. Five or more persons being found armed in daytime in search of game and using violence or refusal of such persons to give name and address (section 32 of the Game Act 1831);

18. Being drunk in highway or public place (section 12 of the Licensing Act 1872);

19. Obstructing an authorised person inspecting premises before the grant of a licence etc. (section 59(5) of the Licensing Act 2003);

20. Failing to notify change of name or alteration of rules of club (section 82(6) of the Licensing Act 2003);

21. Obstructing an authorised person inspecting premises before the grant of a certificate etc. (section 96(5) of the Licensing Act 2003);

22. Obstructing an authorised person exercising a right of entry where a temporary event notice has been given (section 108(3) of the Licensing Act 2003);

23. Failing to notify licensing authority of convictions during application period (section 123(2) of the Licensing Act 2003);

24. Failing to notify court of personal licence (section 128(6) of the Licensing Act 2003);

24A. Keeping alcohol on premises for unauthorised sale etc. (section 138(1) of the Licensing Act 2003);

24B. Allowing disorderly conduct on licensed premises etc. (section 140(1) of the Licensing Act 2003);

24C. Selling alcohol to a person who is drunk (section 141(1) of the Licensing Act 2003);

24D. Obtaining alcohol for a person who is drunk (section 142(1) of the Licensing Act 2003);

24E. Failing to leave licensed premises etc. (section 143(1) of the Licensing Act 2003);

24F. Keeping smuggled goods (section 144(1) of the Licensing Act 2003);

24G. Allowing unaccompanied children on certain premises (section 145(1) of the Licensing Act 2003);

24H. Selling alcohol to children (section 146(1) and (3) of the Licensing Act 2003);

24I. Allowing sale of alcohol to children (section 147(1) of the Licensing Act 2003);

24J. Purchasing alcohol by or on behalf of children (section 149(1), (3) and (4) of the Licensing Act 2003);

24K. Consumption of alcohol on relevant premises by children (section 150(1) and (2) of the Licensing Act 2003);

24L. Delivering alcohol to children (section 151(1), (2) and (4) of the Licensing Act 2003);

24M. Send a child to obtain alcohol (section 152 (1) of the Licensing Act 2003);

24N. Allowing unsupervised sales by children (section 153(1) of the Licensing Act 2003);

24O. Making false statements (section 158(1) of the Licensing Act 2003);

24P. Allowing premises to remain open following a closure order (section 160(4) of the Licensing Act 2003);

24Q. Obstructing authorised person exercising rights of entry to investigate licensable activities (section 179(4) of the Licensing Act 2003);

25. Making false statement in connection with an application for a sex establishment licence (paragraph 21 of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982);

27. Falsely claiming a professional qualification etc. (article 44 of the Nursing and Midwifery Order 2001);

28. Taking or destroying game or rabbits by night, or entering any land for that purpose (section 1 of the Night Poaching Act 1828);

29. Wearing police uniform with intent to deceive (section 90(2) of the Police Act 1996);

30. Unlawful possession of article of police uniform (section 90(3) of the Police Act 1996);

31. Causing harassment, alarm or distress (section 5 of the Public Order Act 1986);

32. Failing to give advance notice of public procession (section 11 of the Public Order Act 1986);

33. Failing to comply with conditions imposed on a public procession (section 12(5) of the Public Order Act 1986);

34. Taking part in a prohibited public procession (section 13(8) of the Public Order Act 1986);

35. Failing to comply with conditions imposed on a public assembly (section 14(5) of the Public Order Act 1986);

36. Taking part in a prohibited assembly (section 14B(2) of the Public Order Act 1986);

37. Failing to comply with directions (section 14C(3) of the Public Order Act 1986);

38. Failing to provide specimen of breath (section 6 of the Road Traffic Act 1988);

39. Penalisation of tampering with vehicles (section 25 of the Road Traffic Act 1988);

40. Kerb crawling (section 1 of the Sexual Offences Act 1985);

41. Persistently soliciting women for the purpose of prostitution (section 2 of the Sexual Offences Act 1985);

42. Allowing alcohol to be carried on public vehicles on journey to or from designated sporting event (section 1(2) of the Sporting Events (Control of Alcohol Etc.) Act 1985);

43. Being drunk on public vehicles on journey to or from designated sporting event (section 1(4) of the Sporting Events (Control of Alcohol Etc.) Act 1985);

44. Allowing alcohol to be carried in vehicles on journey to or from designated sporting event (section 1A(2) of the Sporting Events (Control of Alcohol Etc.) Act 1985);

45. Trying to enter designated sports ground while drunk (section 2(2) of the Sporting Events (Control of Alcohol Etc.) Act 1985);

46. Unauthorised sale or disposal of tickets for a designated football match (section 166(1) of the Criminal Justice and Public Order Act 1994);

47. An individual subject to a banning order failing to comply with the requirements determined by the enforcing authority and made of him by a police officer on the individual's initial reporting at the police station (section 19(6) of the Football Spectators Act 1989);

48. A person subject to a banning order knowingly or recklessly providing false or misleading information in support of his application for an exemption from a reporting requirement of his banning order (section 20(10) of the Football Spectators Act 1989);

50. Loitering or soliciting for purposes of prostitution (section 1 of the Street Offences Act 1959);

52. Taking or riding a pedal cycle without owner's consent (section 12(5) of the Theft Act 1968);

53. Begging (section 3 of the Vagrancy Act 1824); and

54. Persistent begging (section 4 of the Vagrancy Act 1824).

For more information on a specific offence, check out the law mentioned in brackets in the UK Statute Law Database (very good search facility and the laws integrate some revisions from later amendments - unfortunately not fully up-to-date for many laws) or the Office of Public Sector Information (the original legislation as it was enacted).

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Fri, 07 Aug 2009

A response to the Home Office consultation on DNA retention

Below is my response to the Home Office consultation Keeping the right people on the DNA database. You still have the whole of Friday to engage in the DNA database debate and send yours in, if you haven't done so yet.

1) Introduction

There is a consensus that retention of DNA profiles of crime scenes has a direct positive effect on the detection rate. The Home Office explained in 2005 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”. There’s no such clear case about the impact of retaining DNA profiles of individuals; there’s even data showing the contrary. When the NDNAD doubled in size, the percentage of recorded crimes involving a DNA detection remained roughly the same (at 0.36% according to GeneWatch UK). Furthermore, according to Brian Costello's research, increasing the size of the NDNAD is likely to increase the risk of miscarriage of justice: “If a miscarriage based on an adventitious match has not occurred yet, it appears likely it will occur in the future as the NDNAD grows ever larger.”

Options that include retention of either DNA samples or profiles must be based on strong evidence. The default position has to be that samples and profiles of innocents must be destroyed and deleted unless solid evidence can be shown of the value of retention. No such evidence has been presented in the consultation.

It is most unfortunate for the consultation to be of such poor quality. The included research has many mistakes and surprisingly does not appear to always support the Home Office options. (I attempted to get a corrected version of this document from its author and correspondence about it from the Home Office, without success.) The consultation documents are flawed in other ways as well: for instance, the chief economist was given an earlier draft to review with different options, and the costing for removing DNA wrongly assumes each removal has to be individually reviewed. (This has been communicated to the Home Office Consultation Co-ordinator last month.)

The rules governing the NDNAD, including retention period of DNA profiles, should be properly debated in Parliament. That the Home Office has already published a draft Statutory Instrument to implement its proposal, only a week after starting the consultation period, does not give confidence in its capacity to listen to constructive criticism. The rules governing the NDNAD should be included in primary legislation instead of having an SI giving full discretion to the Secretary of State. As Mr Justice Beatson commented that “It appears that a decision was taken not to address the reasons for the [Strasbourg] Court’s conclusion in the Consultation Paper”, the Home Office may want to reconsider this decision.

2) DNA samples

The Home Office is to be commended for its plan to destroy all DNA samples.

Destroying new DNA samples as soon as an effective profile is loaded on the NDNAD is by far the best option. It ensures the associated DNA profiles are available for policing purposes while not holding on to the most intimate human biological data.

The Home Office mentions a retention “for up to six months maximum for possible re-examination purposes only”. Six months is an arbitrary period that is not justified. In the absence of evidence for this choice, I suggest reducing this period to two months at most.

The consultation estimates that 12 months will be needed to destroy the legacy samples as they amount to about 25 cubic meters. This seems overly long to effectively take the DNA samples of individuals out of freezers in bulk and securely destroy them.

3) DNA profiles of innocent individuals

To retain the DNA profile of innocents, after the police have decided to take No Further Action (NFA) or after they have been acquitted, is an attack on the presumption of innocence. This can be justified only with solid evidence in support of such retention. The research included in the consultation does not provide strong evidence. This has already been discussed at length by many (for e.g., see articles by Anna Fairclough, Dr Ben Goldacre, Professors Keith Soothill and Brian Francis, and several of my writings as well). There’s not much point rehearsing these arguments here. Instead I’ll offer an alternative approach.

The NDNAD is effectively a criminal database as opposed to an identity database. The NDNAD Ethics Group concurred in its first annual report with two of its 11 recommendations making it clear the National DNA Database (NDNAD) is a “crime-related intelligence database”, and the Human Genetics Commission regards it “as a criminal database”. There are potentially conflicting goals for the retention of DNA profiles of innocents: improving crime prevention while avoiding criminalising innocents. Of course there’s stigma for an innocent to be included in a criminal database. There are also risks.

William C. Thompson, in The Potential for Error in Forensic DNA Testing (and How That Complicates the Use of DNA Databases for Criminal Identification), clearly explains some of these risks: “Do innocent people really have nothing to fear from inclusion in government DNA databases? It should now be clear to readers that this claim is overstated. If your profile is in a DNA database you face higher risk than other citizens of being falsely linked to a crime. You are at higher risk of false incriminations by coincidental DNA matches, by laboratory error, and by intentional planting of DNA. There can be no doubt that database inclusion increases these risks, the only real question is how much. In order to assess these risks, and weigh them against the benefits of database expansion, we need more information.”

The ECtHR also requested more information: “Weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants’ private data compared to that of other unconvicted people.”

Unfortunately the consultation does not provide the information we need to consider whether there are indeed situations where the risks of criminalising innocents are outweighed by the risk of a criminal offending who could have been found if his/her DNA profile had been retained before his/her first offence. (There is obviously no need for retention to match a criminal arrested after an offence where DNA was left at the crime scene and loaded on the NDNAD.)

Professors Soothill and Francis in Keeping the DNA link point out that “The notion of ‘arrest’ is the main criterion used for action in the consultation document. [...] In fact, arrests are useful indicators of police action but not of guilt. Re-arrests are dangerous indicators and making arrests the pivotal criterion encourages the notion that we are moving towards becoming a police state. The most serious abuse to avoid is an arrest by the police at the end of a retention period in order to get a further retention period on the DNA database.” The ethnic bias of the NDNAD is likely a consequence.

“After all, one of the authors showed nearly 30 years ago (Soothill K, Way C and Gibbens TCN (1980) ‘Rape Acquittals’, Modern Law Review, 43(2), 159-172) that the subsequent criminal profiles of those acquitted of rape are almost identical to the subsequent criminal profile of those convicted of rape—in fact, a greater proportion of the former had subsequent violent convictions. However, there is no recourse to this kind of evidence. Their demand for a 12-year retention period is backed up by what we call the smokescreen of versatility. [...] More recently, McGloin et al (McGloin, JM, Sullivan, CJ and Piquero, AR (2009) ‘Aggregating to versatility: Transitions among offender types in the short term’, British Journal of Criminology, 49, 243-264) provide evidence that offenders may favour certain offence types during the short term, largely because of opportunity structures, but that because of changing situations and contexts over the life-course, their offending profiles aggregate to versatility over their criminal career as a whole.”

As there’s no evidence to justify the proposed six and twelve years retention periods, my recommendation is that DNA profiles of innocents must be deleted when the individuals are NFA’d or acquitted.

However, as there appears to be some other evidence suggesting that a proportion of those arrested for certain specific serious offences - rape and kidnap are the two mentioned in Keeping the DNA link - go on to commit a related offence in the short term, it may be proportionate to retain their DNA profile for the “short term” period where such criminal specialisation can be expected. The length of criminal specialisation, though, does not give the full picture, Liu, Francis and Soothill found in Kidnapping offenders: Their risk of escalation to repeat offending and other serious crime (published in the Journal of Forensic Psychiatry & Psychology), that the shape of the re-conviction curves is also important as it is offence-specific. Clearly more work needs to be done to find and analyse the existing peer-reviewed research and commission further research.

It may be difficult to complete substantive further research in the time scale for the legal changes this consultation addresses, so there’s an open question in how to deal, at this stage, with DNA profiles of those arrested and charged for a violent offence and subsequently acquitted. I consider three options: a) delete their DNA profiles at acquittal, b) set a maximum retention period in the regulations, and c) retain their DNA profiles indefinitely. Indefinite retention of DNA of innocents is clearly unacceptable so that leaves two options.

My recommendation is to set a maximum period of up to six years for the exceptional retention of the DNA profile of individuals charged for a violent offence and acquitted, and plan a review of this aspect of the regulations for when further validated research work has been conducted allowing to create evidence-based retention periods for specific violent offences.

4) DNA profiles of under 18s

The experience of being arrested and having one’s DNA taken can be especially traumatic for young kids. For individuals arrested under the age of 18, a DNA sample should be taken at arrest only for violent offences.

If an individual arrested before the age of 18 was not DNA sampled but is later convicted for that offence, then a DNA sample should be taken at conviction for DNA profiling.

5) DNA profiles of convicted individuals

Rehabilitation must also apply to DNA retention. The DNA profile of convicted individuals should be deleted at the end of their rehabilitation period (as defined in the Rehabilitation of Offenders Act 1974). The retention period could be exceptionally extended, as part of the sentencing, if deemed appropriate to the specific circumstances.

6) Legacy profiles

Legacy DNA profiles of innocents must be bulk deleted when the regulations come into force as the default position should be not to retain DNA profiles.

Legacy DNA profiles of convicted individuals should be deleted at the end of their rehabilitation period (as defined in the Rehabilitation of Offenders Act 1974).

Legacy unreconciled DNA profiles should preferably be manually reviewed for deletion when regulations come into force. If the time and cost is too great, then they could be automatically deleted after a set retention period suggested to be six years from arrest. I.e, all unreconciled DNA profiles more than six years old would be bulk deleted when regulations come into force and the remaining unreconciled profiles automatically deleted when they reach this retention period.

7) Governance and accountability

Increasing the independent membership of the NDNAD Strategy Board is welcomed, but it is of concern that the Home Office did not consult, or even inform, either the NDNAD Strategy Board or the NDNAD Ethics Group when preparing its plans for the future of the DNA database as embodied in the consultation. (This was confirmed in personal communications by members from both groups.) This does not give confidence that any new structure or playing musical chairs in one of the existing advisory structure would be effective. Changes in governance and accountability need to be stronger than currently proposed.

Renaming the existing ACPO exceptional case procedure to “application process for record deletion” and for the grounds to be codified in regulations is not enough. The ECtHR called for a “provision for independent review of the justification for the retention according to defined criteria.” The chief constable, owner the DNA profile and currently final arbiter, is not independent and there should be an appeal process to a genuinely independent body.

It appears that the involvement of ACRO with the NDNAD is growing. (Details are not known as they are not public and the Home Office exempted the FoI request I sent about this.) For instance, the ACRO appears to have been tasked to create processes that would improve achieve some level of national consistency when considering the requests for removal. Further involvement of ACRO, a private company, would be considered to reduce accountability and transparency and should be limited.

The creation of a strategic and independent advisory panel tasked with monitoring the implementation and operation of the new policy would be useful if it is given enough authority and power to do its job. If it is to be bypassed, as the NDNAD Strategy Board and the NDNAD Ethics Group recently were, then its creation would be useless. This advisory panel must report to Parliament, instead of to Ministers as is proposed.

Regular publication of the key statistics on NDNAD numbers, speculative searches, deletions and applications for deletions is welcomed. A review of past NDNAD-related Parliamentary questions and Freedom of Information requests would give a good idea of the kind of data that is found useful. The Home Office should also ensure that proper peer-reviewed research on the efficacy of the NDNAD is commissioned.

8) Taking Samples – Additional Categories

Additional provisions to take samples may be justified in specific circumstances, from individuals who are considered to pose a potential danger to the public, but need to be narrowly constrained to avoid any risk of harassment by the police. In particular, any additional sampling would have to be for a serious offence and only during the period for which it would be legal to retain the DNA profile.

9) Fingerprints

Having retention policy for fingerprints (and palm prints) in line with that of DNA profiles is attractive as it will allow for deletion of both at the same time minimising the risk of error.

The Home Office is proposing to remove the ability to witness the destruction of one’s fingerprints. Any aspect of the process that increases the transparency of the police and offers a chance for positive interactions between the police and the public, such as witnessing this operation, should be reinforced. Removing this entitlement must be justified.

10) Volunteer Samples and Profiles

The proposed option of not storing DNA profiles of volunteers and deleting all the legacy DNA profiles of volunteers is fully supported.

First published on 2009-08-06; last updated on 2009-08-07.

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Thu, 06 Aug 2009

Engaging in the DNA database debate

With close to 8% of the UK population on the National DNA Database (NDNAD), you must know someone whose DNA profile is on it. Finding out how to get off it and attempting to engage in a proper debate about its future I found the Home Office wasn’t listening but NGOs were really helpful.

There are plenty of reasons to want to be off the NDNAD, especially if you’re innocent or were arrested for some trivial matter:

Seeking deletion of your DNA profile from the database (and destruction of the DNA sample) is an arcane process. It took me much searching of Home Office and Police documents to understand how this works. Not even MPs debating an NDNAD related amendment at the end of 2008 were fully aware of the process!

Few have done it. Combined figures for 2008 obtained from 20 police forces that did record this information show that out of 535 requests received, 211 succeeded. The Chief Constable of the force that arrested you owns your DNA and, once asked, will relent to delete it only in exceptional cases. The Chief Constable may have a different opinion from you of what is exceptional. Being among the 350,000 to a million innocents on the database (the exact number is not known as not all profiles are reconciled with the Police National Computer) helps. Earlier this year, a coalition of NGOs addressed this issue by launching the ReclaimYourDNA website.

Following the European Court of Human Rights ruling against the UK, the Home Office eventually published a consultation: Keeping the right people on the DNA database (closing tomorrow). It’s a rushed job. The included research was described as “possibly the most unclear and badly presented piece of research I have ever seen in a professional environment” by Ben Goldacre. I contacted its author but got no reply. I asked the Home Office for its correspondence about it, but that was exempted. Eventually I sought the statistics used by the Home Office in creating the consultation and was told that they may respond after the consultation closes. The consultation documents are flawed in other ways. For instance, the chief economist was given an earlier draft to review, with different options, and the costing for removing DNA wrongly assumes each removal has to be individually reviewed. I wrote to the Home Office consultation co-ordinator to complain but he does not find any problem with the consultation documents. Attempts to engage with the Home Office to obtain valid data and a corrected up-to-date version of its plans were all frustrated.

Time again, NGOs came to the rescue to help make sense of these confusing documents. I attended a briefing for the children’s sector organised by ARCH and GeneWatch UK, and a seminar for Britain’s black communities held by Black Mental Health and GeneWatch UK. Alan Brown, Head of Police Powers and Procedures, Home Office, was a guest speaker at the seminar. Consultation responses are to be sent to him, so I was looking forward to get some clarifications. About the plans to retain DNA of innocents for six or 12 years, he offered: “More than happy to take constructive criticism. Indicate why you think it’s wrong. But we do feel we need retention whether it’s one or 15 years.” However he promptly left the building after only a few questions missing an opportunity to participate in the panel discussion and engage directly with a community over-represented in the NDNAD.

Where the Home Office brings confusion and pretends to be open to constructive criticism, small NGOs are doing an impressive work of public education and engagement. You have one day left to respond to the Home Office consultation. If you need help answering it, GeneWatch UK has published a briefing document (doc).

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