Forensic Science Service (FSS), a GovCo wholly owned by the government and a key player in DNA profiling, is running out of cash and is to be wound down. Home Office minister James Brokenshire delivered this news in a written statement on Tuesday:
Despite this intervention and the commitment of the current management team, the current challenging forensics market has put the FSS back into serious financial difficulty. FSS is currently making operating losses of around £2 million per month. Its cash is due to run out as early as January next year. It is vital that we take clear and decisive action to sort this out.
The police have advised us that their spend on external forensic suppliers will continue to fall over the next few years, as forces seek to maximise efficiencies in this area. HMIC concurs with this assessment.
We have therefore decided to support the wind down of FSS, transferring or selling off as much of its operations as possible. We will work with FSS management and staff, ACPO, and other suppliers to ensure an orderly transition, but our firm ambition is that there will be no continuing state interest in a forensics provider by March 2012.
The National Police Improvement Agency, which took over the role of custodian of the National DNA Database from FSS, lists Eurofins Genetic Services, FSS, LGC Forensics, and Orchid Cellmark as forensic service providers for analysing and handling DNA samples taken from individuals on arrest. To deal with DNA recovered from crime scenes, agreements were negotiated with the same four companies plus Key Forensic Services. The contract for the supply of DNA sampling kits had been awarded to the FSS.
James Brokenshire closed his written statement by indicating, 'We want to see the UK forensic science industry operating as a genuine market, with private sector providers competing to provide innovative services at the lowest cost.' That would appear to indicate that the remaining providers will get the work that was done by the FSS, however the extract included above clearly states that the police expect to reduce their spend on external forensic suppliers. If the plan is to make these savings on DNA forensic services, this could mean either analysing fewer DNA samples and/or not using external companies in some instances.
Two hypotheses: fewer samples and avoiding external forensic suppliers
Let's look at the first hypothesis. The government has stated its intention to adopt the Scottish model. This will reduce storage cost by limiting retention, but getting rid of a few freezers should only make a modest cost reduction. What would make a much bigger difference would be not to take as many DNA samples in the first place, however current official plans are still to take DNA samples at arrest. Unless the police intend not make as many arrests, the cost of sampling and analysing DNA of arrestees should remain of the same order of magnitude. Another way to reduce cost would be to collect or analyse fewer DNA samples from crime scenes (as at 30 September, 366,755 crime scene sample profiles on the National DNA Database had been submitted by police forces in England and Wales.) That would be a really bad idea as the effectiveness of forensic DNA is directly related to how many DNA samples from crime scenes are loaded.
As for the second hypothesis, it is possible that some police forces are looking into having their own DNA forensic lab. Other forensic work done in-house has brought savings and may be considered a model to emulate:
Two police officers from, Gloucestershire, UK whose forensic examination of mobile phones saved the force around a third of a million pounds have received a prestigious award. DC Adrian Stratton and PC John Loveridge were presented with the Richard Somers Award in recognition of their work interrogating the devices. [...]
Supt Bridget Woodhall, who nominated them, said earlier: "Analysis of mobile phone data is now a key part of evidence gathering - particularly in cases involving the exchange or sale of drugs.
"Thanks to the work of these officers the monetary savings are plain to see, but there are hidden benefits such as quicker results, shorter bail dates for the more serious offences, and the potential to extract a wealth of new of intelligence."
If some DNA analysis was done in police labs, independence of the police technicians from the investigating detectives would be both essential and difficult to monitor.
The ministerial announcement leaves several questions open, none of which seems to have even been asked in the many press articles covering this news.
Location breadcrumbs left by mobile phones, along with other communication traffic data, are kept as part of a mass surveillance operation. They are collected by the mobile networks, retained for a year, and handed over to the police and other bodies on request. This is such an accepted fact of life that lack of traffic data has become suspicious. As shown in Voluntary electronic tagging, not carrying a mobile phone was considered a ground for arrest in Germany in 2007 and in France in 2008.
The mobile networks want to share this trove of personal data with more than just the police, for both security and commercial applications. Lee Epting, Director of Content Services at Vodafone, told the audience of the RSA keynote The Future of Mobile (the following extract starts at 16'26" in the mp3) how we'll be lulled into abandoning our right to privacy:
In terms of people tracking, over the next ten years, we expect growing acceptance by consumers that you can be tracked by your mobile, and increased adoption of ticketless transport systems surveillance, and financially successful location based services, and the ability to locate friends and family, for example. Moving forward, as mobile phones are used to enable ticketless travel by charging the owner when they get on or off the public transport networks, the use of the location of a personal mobile device as a reliable surrogate, if you will, for the individual is stimulating lots of new applications in areas such as healthcare, financial payment among many others. However it's not all just about mobiles, the EU is mandating the incorporation of this technology in every new car from 2012, and soon the whole vehicle fleet and hence drivers will be tracked. Not only does this allow for better emergency assistance but it also acts as a catalyst for the introduction of pervasive road pricing and the like without the need any further for tollbooths.
I want to make a comment here. Although this seems a bit daunting, it does to me as well, but it is somewhat our reality. And there are real concerns around the potential impact this will have on our right to privacy, the benefits of information sharing are still very considerable. And as we become more comfortable with sharing information, and our search histories and our locations, more relevant information will be provided more quickly and the power of innovation will actually start to shift into the public domain. And I think this is one of the key things we want to consider because just talking about the fact that we're monitored and people know where we are, what we've done is daunting, but when you consider the power when things start to shift, it could be quite a big shift. Clearly this technology has to be managed sensitively and wisely as it's rolled out more widely, but looking into 2020 we can see a world where whether we want it or not and whether we seek to avoid it or not, we're no longer just tracked by the border control when we leave or enter/exit a country but we are constantly tracked for both security and commercial applications.
If that's not the world you want, support organisations which call for an end to compulsory telecommunications data retention.
Bootnote: the German working group on data retention AK Vorrat published, in English, a FAQ explaining the current blanket data retention policy on the entire EU population's communications and the alternative, proposed by civil society, of expedited preservation and targeted collection of traffic data. See also its information page.
Terri Dowty from Action on Rights for Children (ARCH) and Dr Helen Wallace from GeneWatch UK, two exceptional campaigners on civil liberties, will be talking about children's databases and the National DNA Database (NDNAD) at a free event organised by No2ID this Monday 22nd November, 7pm in the Bertrand Russell Room, Conway Hall (25 Red Lion Square, London WC1R 4RL).
To coincide with her appearance in the film Erasing David, Terri Dowty published earlier this year a Privacy guide for parents (pdf) detailing the information collected about children from the moment they are born. Even though this document does not yet reflect the latest successes of ARCH's campaigns such as the end of ContactPoint in August or the recent promise that schools will no longer take children’s fingerprints without consent, it's worth browsing through it to fully realise the extent of data collection going on. To ensure its continued future, ARCH is building a new network of supporters. To support ARCH's work on children's civil liberties and data protection rights, join as a Supporter on its recently revamped website.
GeneWatch UK is calling everyone to write to or visit his or her MP to ask him or her to support the forthcoming Freedom Bill, which will introduce new legislation on DNA and to make sure it includes all the necessary safeguards. The coalition government promises that this bill will change the rules for DNA retention by following the Scottish approach. I explained what this means in Adopting the Scottish approach to DNA retention (all those arrested and not charged, and most of those charged but not convicted, would not have their DNA retained anymore).
The necessary safeguards GeneWatch is demanding are:
- The destruction of all DNA samples once the computerised DNA profiles needed for identification purposes have been obtained from them;
- The deletion of all police computer records and photographs when DNA and fingerprint records are deleted;
- Time limits on the retention of records from people given cautions or convictions for minor offences;
- Independent oversight of the removal of records;
- Stricter controls on how stored DNA records and samples can be used.
There's a wide consensus for the destruction of the DNA samples and such a measure could be effected immediately; see Interim situation to continue a bit longer for DNA retention for details of this and some of the options for change.
The second point is important not just as a future necessary safeguard but also as a useful reminder for those exceptional individuals who succeed in reclaiming their DNA using the current exceptional case procedure. Usually fingerprints (and palm and other prints) are destroyed at the same time as DNA samples and profile when a chief constable eventually agrees to such a request. However, the police have been lobbying to retain the associated Police National Computer (PNC) record; it is essential that this record is deleted as the PNC can be accessed by many organisations and having a PNC record may affect one's job and visa prospects among other risks. The last item, photographs, is in the experience of many innocents surprisingly difficult to get back or destroyed. Only this month a correspondent who after successfully reclaiming his DNA and subsequently specifically querying whether the police was still holding on to some pictures of him was told 'we still hold details of the incident, including photos of you, on some of our systems'. In my case the police relented to return the photographs it took of me and at my flat only after they agreed to settle, two years after they destroyed my DNA and prints. Innocents, on the occasions that they do succeed in getting off the National DNA Database, should not have to be so thorough and have to make multiple formal requests for the destruction of each and every piece of personal information that the police may have collected on them.
Time limits on the retention of DNA for minor offences and for cautions is necessary to ensure rehabilitation, otherwise it is in essence a life sentence which can affect jobs and visas prospects. The longer DNA samples are stored and profiles held, the more they are at risk of being lost or unlawfully accessed; I have compiled a list of those documented instances I could find at DNA database unauthorised use and data loss, and incorrect storing of DNA samples. Independent oversight is an obvious necessity. I suggest you discuss with your MP how it can be effective as well as independent. As for GeneWatch's demand for stricter controls on the use of DNA samples and profiles, consider that today –if you have been arrested for one of the many recordable offences– research can be done on your DNA profile or sample without needing your consent. You won't even be informed that your DNA information was used.
A briefing document, The DNA Database: Contacting your MP (pdf), supporting these demands and offering further points of information to have an informed discussion with your MP is published on GeneWatch's website. Read it and contact your MP! (If your DNA is already on the National DNA Database, for help to get off, check out the Reclaim Your DNA website.)
The United Families and Friends Campaign (UFFC), a coalition of families and friends of those who have died in the custody of police, prison and psychiatric hospital officials, organised a procession to Downing Street to give a letter to the Prime Minister. The police refused to let Samantha Rigg-David in Downing Street and they refused to accept it. The letter was taped to the gate; a copy will be sent by post; it is reproduced below. Whether the decision not to accept the letter was entirely a police operational one or a political one, it showed a shameful lack of respect to those families seeking justice and peace. The last conviction of a police officer following a death in custody was in 1971.
The Rt. Hon. David Cameron MP
10 Downing Street
30th October 2010
Dear Prime Minister
We write from the United Families and Friends Campaign (UFFC), which is a coalition of families and friends of those that have died by the hands of the police, prison officers and psychiatric nurses in suspicious circumstances. All of us have lost loved ones at the hands of the state and for the past 11 years have been seeking justice by marching to Downing Street to hand deliver a letter to the Prime Minister. This year is our 12th year and we hope this year will make a difference.
To date there has been little accountability for the controversial deaths of our loved ones. We have been betrayed by the current inquest system, which is frankly not fit for purpose and feel that our needs and quests for answers have been ignored. Collectively, we insist that you, as the Prime Minister of the new coalition government address these very grave and serious issues personally.
The deaths such as those of Christopher Alder, Roger Sylvester, Brian Douglas, Azelle Rodney, Ian Tomlinson, Jean Charles De Menezes, Joy Gardner, Rocky Bennett, Mikey Powell, Jason McPherson, Ricky Bishop, Harry Stanley, Leon Patterson, Sean Rigg, and the very recent death - only 2 months ago - of Olaseni Lewis to name but a few, have overwhelming issues of concern to the individual families and their communities and is a matter of great public interest.
Families’ confidence in the judicial system is completely broken-down and deaths are still too often occurring, unbeknown to the public at large. Even after families have campaigned vigorously for justice, after numerous reviews, parliamentary reports and inquiries, the following issues we raise surely call for an overhaul of the system:
- The vital need for open, transparent and robust genuine independent investigations and public inquiries into these controversial deaths. The IPCC to date have failed to inspire public confidence, and is not fit for purpose.
- Unlawful killing verdicts in Inquests are being over-turned with no recourse.
- Officers should not to be allowed to collude their statements of fact.
- Cameras need to be in all police vehicles in the interest of both the officers and the public.
- Immediate interviewing of police and prison officers in cases of this type.
- All families are being scrupulously means tested and often asked to contribute from their properties and life savings. There is a lack of funds for family legal representation at Inquests, whilst officers get full free non-means tested legal representation from the public purse - surely this is unfair treatment to families who are already struggling and grieving.
- There continue to be voluminous judicial reviews and legal battles with only 'no case to answer' verdicts.
- There is a strategy of long drawn out investigations, which go on for years in order to wear families down.
Murder, manslaughter, violent and brutal behaviour by state officials is totally unacceptable and we will not give up our pursuance of justice for our basic human right to life. We say that the behaviour of previous governments is shameful. Any moral member of the public with a heart would fail to understand why the government allows such blatant injustices to continually occur, with walls of silence and closed doors in our faces.
In light of the new coalition government’s announcement to change this country for the better, we urge you to immediately change the current institutionally flailing system on deaths in custody. Deaths in custody have to stop. If there is no justice, there will be no peace from the families concerned, and we will never give up, shut up, nor go away.
We await hearing from you with a positive response.
Marcia Rigg and Samantha Rigg-David
On behalf of the United Families and Friends Campaign
Update: Peter Marshall has published, with his photographs of the event, stories of some of those who have died on his excellent My London Diary.
First published on 2010-10-30; last updated on 2010-11-08.
The coalition government included in its May Conservative-Liberal Democrats coalition negotiations agreements, the following item in the Civil Liberties section:
Ending of storage of internet and email records without good reason.
In its Strategic Defence and Security Review – Securing Britain in an Age of Uncertainty (pdf) published earlier this week, the government announced it has apparently found a good reason:
We will: [...] introduce a programme to preserve the ability of the security, intelligence and law enforcement agencies to obtain communication data and to intercept communications within the appropriate legal framework. This programme is required to keep up with changing technology and to maintain capabilities that are vital to the work these agencies do to protect the public. Communications data provides evidence in court to secure convictions of those engaged in activities that cause serious harm. It has played a role in every major Security Service counter-terrorism operation and in 95% of all serious organised crime investigations. We will legislate to put in place the necessary regulations and safeguards to ensure that our response to this technology challenge is compatible with the Government’s approach to information storage and civil liberties.
This programme, formerly known as the Interception Modernisation Programme (IMP), was estimated to cost £2bn. Chris Williams, over at El Reg, gives some context in Green light for spooks' net snoop plan.
(This is obviously is in addition to the existing data retention programmes in place under the European data retention directives. See Voluntary electronic tagging for some thoughts on these.)
A 15-year old who had been locked up overnight in January in a case of mistaken identity received a written apology from the Chief Inspector Humberside Police and his DNA samples back. This is most unusual as when an innocent who has been arrested manages to convince the police that his or her case should be considered an ' exceptional case' –the only way to get off the DNA database–, the normal procedure is for the DNA samples to be destroyed and all the associated records (DNA profile, fingerprint, Police National Computer entry, etc.) deleted. This is the first case I am aware of where the police returns the DNA samples.
This case has been reported in detail by this is Hull & East Riding. Here are extracts about the DNA retention aspect from three articles published about this case (emphasis added):
Innocent boy locked up in identity mix-up, Friday, January 08, 2010
[...] Joshua, described by teachers as "a lovely lad" spent the night in a cell at Priory Road police station, had his fingerprints taken, a DNA sample swabbed from his mouth, and was photographed for a mug shot.
He was not released until yesterday morning, at about 10am.
Joshua said: "It was horrible – being treated like a criminal when I knew that I had done nothing wrong whatsoever, but no-one would believe me." [...]
Teen's apology from Humberside Police over DNA sample, Monday, January 25, 2010
[...] Mr Lever said: "Further enquiries revealed this boy was not involved and was released from custody.
"We are sorry he was arrested and kept in a cell overnight. For this I apologise."
Mr Lever, who issued the statement on behalf of Chief Constable Tim Hollis, who is currently in New Zealand, also confirmed Joshua's DNA sample would be destroyed without the need for the family to make a formal application to the force. [...]
Boy was held in cells 'unlawfully': Family's anger over case of mistaken identity, Wednesday, September 15, 2010
Joshua Stevens, 15, and his father
Alan with a letter from the police and
Josh's DNA samples.
[...] Despite the ongoing claim, the Stevens family are claiming a victory after receiving a written apology from the force and they have been given back Joshua's DNA samples – an unprecedented move by Humberside Police.
Chief Inspector Kai Adegbembo wrote: "I personally apologise on behalf of Humberside Police for the negative impact that has resulted from the arrest." [...]
It remains extremely difficult for innocents to get off the National DNA Database. For help, check out the Reclaim Your DNA website created by GeneWatch UK and other organisations. If you succeed in getting off the DNA database, it is most likely your DNA samples will be destroyed and not returned to you.
Bootnote Hat tip to SC.
In December 2008, the European Court of Human Rights (ECtHR) found the UK was was in breach of the human rights of innocents when keeping their DNA and associated records. For the million or so innocents on the National DNA Database, the situation is still the same. Police and the courts can ignore the ECtHR ruling. To get off the DNA database, innocents have to follow the exceptional case procedure with limited chance of success. New legislation, which may eventually put an end to the breach and prevent any further violation in the future, is now scheduled for late 2011.
Two years ago, a unanimous grand jury at the ECtHR concluded:
[T]he Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.
This judgement was final and the UK must abide by ECtHR judgements by (as succinctly put by the Joint Committee on Human Rights):
The previous government dealt immediately with the obligations of reparation and to make just satisfaction, but there still has been no effective progress on the obligations of cessation and non-repetition. For some more details about these obligations see Don't delay: Delete your DNA today. For more on the previous government's response see Home Office still wants your DNA profile, and your PNC record; its last proposals received royal assent in the Crime and Security Act 2010 but none have come into force.
The current government promised it will follow the Scottish approach (explained in Adopting the Scottish approach to DNA retention) to change the rules for DNA retention.
Domestic law unchanged until changed
A recently-published High Court ruling from July ( EWHC 2225 (Admin)) explored whether the police and courts are bound by the Strasbourg ruling or whether they should follow the earlier House of Lords ruling:
It is contended that the continuation of the policy upheld in the House of Lords but successfully impugned in Strasbourg is itself proportionate and legitimate. That temporary maintenance of the policy, so it is contended, affords a legitimate period of time in which the domestic law can be changed. But as the claimants point out, neither the Commissioner nor the Secretary of State as members of the executive can speak for the legislature. There can be no certainty as to when or what, or even whether legislation will be passed or, if it is passed, what it will contain by way of measures relevant to the retention of biometric samples and the time during which those samples can be held. This case must be judged, so the claimants contend, on the basis of the policy as it has been applied to them. Certainly, this case must be judged in the light of the question as to whether the decision of the House of Lords binds this court in the conclusion it reaches.
Lord Justice Moses ruled that 'this court is bound by the decision of the House of Lords. The doctrine of precedent and the legal certainty which that doctrine protects demands that this court follows the decision in S and Marper.' Until something changes domestically, nothing changes for all those on the DNA database.
Chief constables have continued to follow the Association of Chief of Police Officers (ACPO) guidance about DNA retention, the 'exceptional case procedure', which applied before the decision of the ECtHR. Chief constables will continue to do so until new legislation is introduced. A flow chart illustrating how a case is deemed exceptional is included in Innocents are exceptional.
Lord Justice Moses granted permission to appeal directly to the Supreme Court. In the ruling he has 'not expressed any view on the underlying merits' and the outcome of the case when it goes back to the House Lords (now the Supreme Court) is 'far from a foregone conclusion':
No one can properly predict the conclusion that the Supreme Court might reach. It is far from a foregone conclusion. In particular the Supreme Court will have to consider the relevance of the government's contention that continuing the policy at the moment is merely temporary, pending the introduction of new legislation, which will take into account the decision of the European Court of Human Rights and their contention that time should be given to make such changes in an area of great public concern, where legitimate views as to retention and use of biometric data may differ.
Political reform and campaigning
In July as well, the government announced in its Political reform draft structural reform plan (pdf) that it will use its Freedom Bill to implement its agenda to '[r]estore the rights of individuals in the face of encroaching state power, in keeping with Britain’s tradition of freedom and fairness'. Changing the law on DNA retention is part of this civil liberties agenda:
Implement Freedom Bill to adopt the protections of the Scottish model for the DNA database, outlaw fingerprinting of children at school without parental permission, further regulate CCTV, restore rights to non-violent protest, and consider additional areas in response to ideas from Your Freedom website
Start: Jun 2010. End: Nov 2011. Lead: Home Office. Milestones: Freedom Bill passed Nov 2011
November 2011 is later than many campaigners had hoped for. That gives you, dear reader, plenty of time to lobby your MP. Of particular concern is whether when a DNA profile will be deleted, the associated Police National Computer (PNC) record will be deleted as well. This has happened so far under the exception case procedure, however the police had successfully lobbied the previous government to change this practice. The position of the coalition government on this issue remains unclear.
A response from the Ministry of Justice to the Joint Committee on Human Rights (pdf) dated from July (busy month) suggests, for the first time, that the government may in the interim bring into force some of the sections of the Crime and Security Act 2010, which received royal assent under the previous government:
The Government also intends to bring the retention of historic samples and profiles into line with the judgment of the Court as soon as possible. A number of potential options to do this as soon as possible are being explored, including commencing some or all of the DNA provisions of the Crime & Security Act 2010 where that would assist us in achieving early implementation of our policy objectives and the judgment in S & Marper.
One uncontroversial section, which could be commenced immediately, is section 64ZA about the destruction of the physical DNA samples stored in private labs' freezers as soon as a DNA profile has been derived from the sample, or if sooner, before the end of the period of 6 months beginning with the date on which the sample was taken. Such a measure would be welcomed by anyone on the DNA database and would reduce some of the costs. The only voice I have every heard opposed to this measure has been from someone working for a private lab having a direct financial benefit in the status quo.
While successive governments work out their intentions, the law and policies have remained the same and it continues to be extremely difficult for innocents to get off the National DNA Database. For help to get off, check out the Reclaim Your DNA website created by GeneWatch UK and other organisations as official help is lacking.
Bootnote Hat tip to Matthew Hill and Adam Wagner at the UK Human Rights Blog for their respective posts Courts entitled to ignore European Court decision on DNA and fingerprint retention and Courts entitled to ignore European DNA and fingerprints ruling… for now on the High Court case.
Correction: The number of innocents who have their DNA profile on the DNA database was incorrect when first published. (Thanks to ML for spotting this mistake.)
First published on 2010-09-01; last updated on 2010-09-02.
The National DNA Database (NDNAD) Ethics Group (EG) has just published its third annual report, three months after it was completed in April 2010. It makes five recommendations:
1. To accept the fundamental need for prospective studies to ensure that key issues of the proportionality and relevance of the various uses/categories of individuals within the DNA database are illuminated by robust statistical information.
2. The effectiveness of the NDNAD in solving crime needs to be addressed with a proper statistical/evidence basis for any conclusions.
3. The national DNA Database strategy Board and the NPIA should work with the EG towards an embedding of ethical considerations at all stages in the use, obtaining and retention of DNA samples and profiles.
4. The appeals process against decisions not to delete a profile from the database should be reviewed to ensure that the cost of an application does not act as an unreasonable bar to redress. Consideration should be given to referring such decisions to a specialist tribunal (such as that under the Regulation of Investigatory Powers Act) rather than panels of magistrates across the country who may very rarely consider such a case in practice.
5. The Database should be supported by a strong governance framework and there should be a clear and transparent accountability for its operations.
This short report (20 pages) describes the work done by the Ethics Group in the year finishing March 2010 and how its earlier recommendations have been handled. This reveals a few less well-known details about DNA databases and what's in store. Some such items clearly need much more public awareness (emphasis added):
In other news the March 2010 update of the Forensics21 programme explains:
The contract for the supply of DNA sampling kits has been awarded to the Forensic Science Service Ltd (FSS). Orders for DNA sampling kits can be placed with FSS through the DNA Sampling Kits framework agreement. By simply referencing the framework on any orders placed forces will benefit from the new reduced price of £1.95 - a price that will offer a considerable cost saving to all.
The final allocation of 9-series barcodes for PACE DNA sampling kits was made at the end of January 2010. From now on 3-series barcodes will be issued for PACE DNA sampling kits. In addition to the change in barcode series, the forms inside all DNA sampling kits used for the collection of demographic data now ask for less information. The Volunteer DNA sampling kit is being phased out and replaced by the Elimination DNA sampling kit. Information about a new method of taking a DNA sample from a volunteer and its subsequent use, will follow shortly.
This reduced price is just for a sampling kit. For each individual whose DNA is taken, you then need to add the cost of processing the DNA sample to obtain a profile, of storing the sample, retaining the profile, backing up the database, staff cost, etc.
The government has yet to give details on its promise to adopt the Scottish approach to DNA retention.
Ian Tomlinson, a man walking home was bitten by a police dog, struck with a baton and then pushed very strongly in the back by a police officer, and fell. Members of the public helped him. He died. This time, the violent actions of a police officer and the inaction of his colleagues were filmed, not just by CCTV, but also by a passer-by and published for the whole world to witness.
The Crown Prosecution Service has decided not to prosecute the police officer. The reason: 'irreconcilable conflict' between the three post-mortems. The first one found the death 'consistent with natural causes', the two others found the death was 'the result of abdominal haemorrhage from blunt force trauma to the abdomen, in association with alcoholic cirrhosis of the liver'.
The pathologist who conducted the fist post-mortem has been suspended from the Home Office register of forensic pathologists while he is being investigated by the General Medical Council for 'allegations that, whilst working as a Consultant Forensic Pathologist Dr Mohmed Patel's conduct in carrying our four post mortems was irresponsible and not of the standard expected of a competent Home Office registered forensic pathologist and that in one case his conduct was liable to bring the profession into disrepute.'
No prosecution gives a very wrong signal to violent police officers. That this happened as a consequence of choosing as the initial pathologist someone who has allegations against him, further rewards wrong behaviour. A police officer was last convicted for assault charges following a death in custody in 1971.
The Ian Tomlinson Family Campaign has launched a Campaign Fighting Fund to help the Tomlinson family in its fight for justice.
The coalition government has repeatedly promised it will follow the Scottish approach to change the rules for DNA retention. The coalition negotiations agreements reached in May listed 'Adopting the protections of the Scottish model for the DNA database' as one of its measures in the civil liberties section. Nick Clegg, soon after, confirmed that 'the DNA database [will be properly regulated], with restrictions on the storage of innocent people's DNA', and a month ago, Theresa May hinted that the process to create this new legislation has started:
As part of the development of a DNA retention model that provides the protections of the Scottish model, we are examining a range of options before bringing forward detailed proposals to put in place a system which provides protection to the public while respecting the rights of those who have been arrested for but not convicted of an offence.
Costs will be taken into consideration as part of the policy development process.
At no point this Scottish model has been explained and as usual in such situations, confusion leads to misinformation and the quality of the debate is lowered. For instance, the information sheet distributed by the Civil Liberties Panel of the Metropolitan Police Authority at its public meeting on the use of DNA in policing contained incorrect and misleading information in the note explaining the Scottish model.
The Scottish approach to the retention of DNA samples and profiles is defined in sections 18 and 18A of the amended Criminal Procedure (Scotland) Act 1995. As a public service I'll summarise the gist of these sections here and reproduce them in full in a bootnote.
If this model is incorporated in UK legislation, then the DNA profiles of all innocents, bar a few charged for serious sexual and violent offences will no longer be retained in England, Wales and Northern Ireland. No draft law has been published yet and no timetable announced.
Seven outstanding issues
In The DNA Database: what next? (pdf) briefing document, GeneWatch UK highlights six outstanding issues that need to be addressed before new legislation is adopted:
- Will the new law ensure that people’s records on the Police National Computer (PNC) are deleted at the same time as people’s records on the DNA and fingerprint databases?
- When does the Government expect to have the new law in place?
- What will happen to people who have cautions or old convictions for minor offences? Their records used to be deleted after five or ten years but are now kept indefinitely.
- Will there be a system of independent oversight to make sure that the police delete people’s records when they are supposed to?
- Will the Government review whether some DNA samples are being collected unnecessarily, when they are not relevant to solving the alleged crime?
- Will the new law contain tighter restrictions on how people’s stored DNA records can be used?
Check out the pdf for a detailed backgrounder of each of these issues. The first one is essential as the PNC is accessible by many organisations, including 56 non-police bodies. A related aspect, not included in the briefing, concerns the DNA report summary that is part of PNC records. These summaries include a marker for the status of the DNA sample. This information, that is accessible to all those who have access to PNC records, may be damaging especially if incorrect. For instance, for a while this marker in the DNA report summary of my PNC record was 'Confirmed', meaning 'on the database and a conviction has been achieved' even though I had no conviction (I was never even charged).
I would add at least a seventh item to GeneWatch's list: 'Will there be regular peer-reviewed publication of statistics and evidence-based analysis about the efficacy of DNA retention?' Reports published to justify options suggested by the previous government were of low quality, full of errors and not always relevant. To have a proper debate about what should be the use of DNA in policing with both aims of reducing crime and protecting our civil liberties, we need to have facts that can be trusted and inform this debate. For instance, while the previous government pushed for long retention periods with dubious arguments, it never arranged to publish data on how long DNA profiles of crime scenes and individuals had been retained, per crime type, when a DNA match or detection occurs. Another example: it is known the percentage of recorded crimes which involve a DNA detection is less than 0.4%, but not how many lead to convictions and whether DNA was even essential. There are few facts and much speculation. Hard evidence must be required to justify any measure that risk affecting innocents.
Bootnote Until the legislation changes, the exceptional case procedure is the only way to get off the National DNA Database. (The Crime and Security Act 2010 received Royal Ascent but none of its sections concerning the DNA database have come into force and now they won't.) The website Reclaim your DNA offers a step-by-step guide for innocents to request to be taken off this crime-related intelligence database and ensure that their personal genetic information samples are destroyed. Chief constables may claim that you need to wait until a change of guidelines; this is disingenuous as they have the power to destroy DNA samples and associated records.
Bootnote Sections 18 and 18A of the Criminal Procedure (Scotland) Act 1995
18. Prints, samples etc. in criminal investigations. —
(1) This section applies where a person has been arrested and is in custody or is detained under section 14(1) of this Act.
(2) A constable may take from the person, or require the person to provide him with, such relevant physical data as the constable may, having regard to the circumstances of the suspected offence in respect of which the person has been arrested or detained, reasonably consider it appropriate to take from him or require him to provide, and the person so required shall comply with that requirement.
(3) Subject to subsection (4) below and section 18A of this Act, all record of any relevant physical data taken from or provided by a person under subsection (2) above, all samples taken under subsection (6) or (6A) below and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction or an order under section 246(3) of this Act.
(4) The duty under subsection (3) above to destroy samples taken under subsection (6) [F6or (6A)] below and information derived from such samples shall not apply—(a) where the destruction of the sample or the information could have the effect of destroying any sample, or any information derived therefrom, lawfully held in relation to a person other than the person from whom the sample was taken; or (b) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held by or on behalf of any police force in relation to the person.
(5) No sample, or information derived from a sample, retained by virtue of subsection (4) above shall be used—(a) in evidence against the person from whom the sample was taken; or (b) for the purposes of the investigation of any offence.
(6) A constable may, with the authority of an officer of a rank no lower than inspector, take from the person—(a) from the hair of an external part of the body other than pubic hair, by means of cutting, combing or plucking, a sample of hair or other material; (b) from a fingernail or toenail or from under any such nail, a sample of nail or other material; (c) from an external part of the body, by means of swabbing or rubbing, a sample of blood or other body fluid, of body tissue or of other material; (d) . . . .
(6A) A constable, or at a constable’s direction a police custody and security officer, may take from the inside of the person’s mouth, by means of swabbing, a sample of saliva or other material.
(7) . . . .
(7A) For the purposes of this section and sections 19 to 20 of this Act “relevant physical data” means any—(a) fingerprint; (b) palm print; (c) print or impression other than those mentioned in paragraph (a) and (b) above, of an external part of the body; (d) record of a person’s skin on an external part of the body created by a device approved by the Secretary of State.
(7B) The Secretary of State by order made by statutory instrument may approve a device for the purpose of creating such records as are mentioned in paragraph (d) of subsection (7A) above.
(8) Nothing in this section shall prejudice—(a) any power of search; (b) any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or (c) any power to take prints, impressions or samples under the authority of a warrant.
18A Retention of samples etc.: prosecutions for sexual and violent offences. —
(1) This section applies to any sample, or any information derived from a sample, taken under subsection (6) or (6A) of section 18 of this Act, where the condition in subsection (2) below is satisfied.
(2) That condition is that criminal proceedings in respect of a relevant sexual offence or a relevant violent offence were instituted against the person from whom the sample was taken but those proceedings concluded otherwise than with a conviction or an order under section 246(3) of this Act.
(3) Subject to subsections (9) and (10) below, the sample or information shall be destroyed no later than the destruction date.
(4) The destruction date is—(a) the date of expiry of the period of 3 years following the conclusion of the proceedings; or (b) such later date as an order under subsection (5) below may specify.
(5) On a summary application made by the relevant chief constable within the period of 3 months before the destruction date the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.
(6) An application under subsection (5) above may be made to any sheriff—(a) in whose sheriffdom the person referred to in subsection (2) above resides; (b) in whose sheriffdom that person is believed by the applicant to be; or (c) to whose sheriffdom the person is believed by the applicant to be intending to come.
(7) An order under subsection (5) above shall not specify a destruction date more than 2 years later than the previous destruction date.
(8) The decision of the sheriff on an application under subsection (5) above may be appealed to the sheriff principal within 21 days of the decision; and the sheriff principal's decision on any such appeal is final.
(9) Subsection (3) above does not apply where—(a) an application under subsection (5) above has been made but has not been determined; (b) the period within which an appeal may be brought under subsection (8) above against a decision to refuse an application has not elapsed; or (c) such an appeal has been brought but has not been withdrawn or finally determined.
(10) Where—(a) the period within which an appeal referred to in subsection (9)(b) above may be brought has elapsed without such an appeal being brought; (b) such an appeal is brought and is withdrawn or finally determined against the appellant; or (c) an appeal brought under subsection (8) above against a decision to grant an application is determined in favour of the appellant, the sample or information shall be destroyed as soon as possible thereafter.
(11) In this section—“the relevant chief constable” means—(a) the chief constable of the police force of which the constable who took or directed the taking of the sample was a member; (b) the chief constable of the police force in the area of which the person referred to in subsection (2) above resides; or (c) a chief constable who believes that that person is or is intending to come to the area of the chief constable's police force; and “relevant sexual offence” and “relevant violent offence” have the same meanings as in section 19A(6) of this Act and include any attempt, conspiracy or incitement to commit such an offence.
It may not be obvious from a naive reading of Section 18A(2) whether that condition for retention applies when someone is arrested or charged. The correct reading is that there can be retention only when someone has been charged for 'a relevant sexual offence or a relevant violent offence'. The exact meaning of when criminal proceedings are instituted is defined in section 15(2)(c) of the Prosecution of Offences Act 1985 (thanks to L for this reference):
(2) For the purposes of this Part, proceedings in relation to an offence are instituted— [...] (c) where a person is charged with the offence after being taken into custody without a warrant, when he is informed on the particulars of the charge;
Powers to stop and search anyone and everyone without any reasonable suspicion, on the off chance that a random pedestrian may be a terrorist, have been suspended. These powers, section 44 of the Terrorism Act 2000, have been used to harass people from ethnic minority communities (black men and young Muslims in particular), photographers, peaceful protesters and more.
Confirmation from the European Court of Human Rights, two weeks ago, that it had rejected the British government’s final appeal over section 44 stop and search powers was cause for celebration, and 'Photographers not terrorists' met in front of New Scotland Yard (see pictures). The court in the case brought by Kevin Gillan and Pennie Quinton found 'that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention.'
Last week, Theresa May, the Secretary of State for the Home Office finally decided to halt the use of these stop and search powers. She made the following short statement in Parliament:
On Wednesday last week, the European Court of Human Rights ruled that its judgment in the case of Gillan and Quinton is final. This judgment found that the stop and search powers granted under section 44 of the Terrorism Act 2000 amount to the violation of the right to a private life. The Court found that the powers are drawn too broadly—at the time of their initial authorisation and when they are used. It also found that the powers contain insufficient safeguards to protect civil liberties.
The Government cannot appeal this judgment, although we would not have done so had we been able. We have always been clear in our concerns about these powers, and they will be included as part of our review of counter-terrorism legislation.
I can, therefore, tell the House that I will not allow the continued use of section 44 in contravention of the European Court’s ruling and, more importantly, in contravention of our civil liberties. But neither will I leave the police without the powers they need to protect us.
I have sought urgent legal advice and consulted police forces. In order to comply with the judgment—but to avoid pre-empting the review of counter-terrorism legislation—I have decided to introduce interim guidelines for the police. The test for authorisation for the use of section 44 powers is, therefore, being changed from requiring a search to be “expedient” for the prevention of terrorism, to the stricter test of its being “necessary” for that purpose; and, most importantly, I am introducing a new suspicion threshold. Officers will no longer be able to search individuals using section 44 powers; instead, they will have to rely on section 43 powers, which require officers to reasonably suspect the person to be a terrorist. And officers will only be able to use section 44 in relation to searches of vehicles. I will only confirm these authorisations where they are considered to be necessary, and officers will only be able to use them when they have “reasonable suspicion”.
These interim measures will bring section 44 stop-and-search powers fully into line with the European Court’s judgment. They will provide operational clarity for the police. And they will last until we have completed our review of counter-terrorism laws and taken any relevant action arising from that review.
The first duty of Government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties. I believe that the interim proposals I have set out today give the police the support they need and protect those ancient rights. I commend the statement to the House.
Powers to make everyone a suspect don't cut crime
It is refreshing to hear a Home Secretary considering the protection of our civil liberties a cross-political duty. This is particularly important when considering additional powers the police may ask for. The final ruling of the European Court of Human Rights obviously motivated the government to make such an announcement. However widespread concerns about the overuse of these powers, their lack of effectiveness (much less than one percent resulted in arrest and even fewer in conviction; 'very few arrests result for terrorist related offences'), and settlements obtained for wrongful use of the powers were other incentives for the government to reach such a position.
[...] Finally, the shadow Home Secretary said to me that I, as Home Secretary, need to understand. I think what the shadow Home Secretary needs to understand is the degree of concern that there has been about the use of these section 44 powers under the Terrorism Act 2000—the degree of concern that did arise, not just initially from the way in which they were being used by the police, but a continuing concern about the impact on our civil liberties. I make no apology for the fact—[Interruption.] I believe the shadow Home Secretary was looking at a Liberal Democrat, Tom Brake, and muttering about “their obsession”. I have to say to the shadow Home Secretary that a desire to protect our civil liberties is not an obsession; it is something that we throughout this House should want to do, regardless of political party. I believe it is the duty of Government to balance the need to give the police the powers they need to protect us, with the need to defend our civil liberties, and I believe that is what the statement does.
One cause for the overuse of section 44 stop and search has been the targets set for its use (recently abandoned by most, if not all, forces). At the National Policing Conference, last month, Theresa May announced the scrapping of targets: 'targets don’t fight crime; targets hinder the fight against crime. In scrapping the confidence target and the policing pledge, I couldn’t be any clearer about your mission: it isn’t a thirty-point plan; it is to cut crime. No more, and no less.' Some of these changes will surely be resisted by entrenched interests in the Home Office and the police. A good compromise would be the nine principles of policing from 1829, published soon after the creation of the Metropolitan Police Service, that defined policing by consent.
When celebrations for the suspension of section 44 stops and searches of individuals are over, vigilance will still very much be necessary. The guidelines introduced in May's statement are non-statutory and interim; they could be revoked at any time. What is required to make these changes more definitive is a change of legislation: a repeal of section 44 (if not of the whole Terrorism Act 2000). New legislation will happen only after the announced review of existing counter-terrorism laws is completed.
A potted history of sections 43 and 44
Theresa May reminded officers that 'instead [of relying on section 44], they will have to rely on section 43 powers, which require officers to reasonably suspect the person to be a terrorist.' Both these powers were created by the Terrorism Act 2000. Assistant Commissioner Yates recognised that 'a lot of the stops under section 44 were actually under section 43, where you require reasonable suspicion, so it was a misguided, mis-briefed use of the powers.' Officers have used section 44 even when they had reasonable suspicion, probably to avoid having to justify themselves. (I was stopped and searched under section 44 even though officers stated to have found my behaviour suspicious.)
From 19 February 2001, when the Terrorism Act 2000 came into force, until June 2007, its stop and search powers were mostly used by specialist units. At the very end of June 2007, two car bombs were found in London and a burning car was driven into the Glasgow airport terminal building. For a few days, the threat level in the UK was raised to the the highest: 'critical'. This marked a jump in the use of the Terrorism Act 2000 stop and search powers.
The Metropolitan Police Service (Met) did its first section 43 stop and search in February 2005. During this same month, it was already making 1,296 section 44 stops and searches. The British Transport Police (BTP) started earlier: in June 2003 it was making two section 43 stops and searches and 46 section 44 ones. Most months the number of section 43 stops and searches was in tens, increasing to hundreds for the Met from September 2008; monthly section 44 stops and searches were in thousands or tens of thousands. Most of the counter-terrorism stops and searches, 96% of the use of section 44 in 2009, are by the Met and the BTP.
For the whole of 2009, a total of 148,798 section 44 stops and searches were conducted in Great Britain, a fall of 40% from the previous year; these led to 688 arrests (an arrest rate of 0.5%). During the same period, a total of 1,450 persons were stopped and searched by the Met under section 43, out of which 28 were arrested. As can be seen in the graphs above, the number of counter-terrorism stops and searches peaked in December 2008.
A section 44 stop and search can be done only in an area where there's a prior authorisation. Until August 2009, the Met had in place a London-wide authority for section 44, reviewed every 28 days or close to. From that time, until this week, the Met moved to a patchwork use of section 44 authorisations limited to sites across London of an iconic nature and/or key strategic importance (e.g., transport hubs), and specific tasking in response to the intelligence picture. Detective Chief Superintendent Mike McDonagh at a conference earlier this year stated that, there was an authority for section 44 in place in about 10% of London and that in January 2010 there were about 4,000 section 44 stops and searches in transport hubs and the government security zone, and 600 done at borough level.
The Home Office has always refused to publish the list of section 44 authorisations. SpyBlog has made several attempts to get this information, and its freedom of information requests are still ongoing. Last month, Baroness Neville-Jones disclosed that errors were made in the authorisation process for the stop and search powers under Section 44 of the Terrorism Act 2000, hence some stops and searches were unlawful. In May, the Metropolitan Police Service quietly published a list of authorisations it requested for section 44 stops and searches from 19 February 2001 til 18 May 2009. As officers can still use section 44 in relation to searches of vehicles, it is still important to be able to verify that an authorisation is in place to ensure that a section 44 search of a car is lawful. The Counter Terrorism Command promised that 'Each police service within the UK will now confirm if they have a Section 44 authorisation in place at that current time, although forces still will not provide details of exactly where for operational reasons.'
Other ways to stop and search without ground for suspicion required
The halting of the use of section 44 of the Terrorism Act 2000 does not mean the (interim) halting of all powers that allows stops and searches of individuals without reasonable suspicion. Section 60 of the Criminal Justice and Public Order Act 1994 enables police officers to search any person or vehicle anywhere – within an authorised area – for offensive weapons or dangerous instruments to prevent incidents of serious violence or to deal with the carrying of such items. An authorisation lasts up to 24 hours and can be extended for a further 24 hours. The number of section 60 stops and searches, in England and Wales, nearly trebled from 53,319 in 2007/08 to 150,174 in 2008/09 with corresponding number of arrests of 2,069 and 4,273 respectively.
Criminologist Marian Fitzgerald pointed out that the figures on a borough level show little connection between section 60 stops and searches and reduction in number of stabbings. Not only is the efficacy of this power not clear cut, but the European Court of Human Rights ruling that section 44 of the Terrorism Act is unlawful because 'the powers are drawn too broadly [... and] contain insufficient safeguards' should apply equally to section 60.
Yet another power not requiring reasonable suspicion but more limited in where it can be used is defined in Schedules 7 and 8 of the Terrorism Act 2000. This is the power to stop, question, detain (up to nine hours) and search individuals at port and border controls. There were 10,404 examinations longer than one hour in the period between 1 January 2004 and 30 September 2009. Of these 1,110 persons were detained under the powers in Schedule 7 and 8, leading to 99 arrests for terrorism-related offences, of which 17 were initially charged in relation to offences under the Terrorism Act 2000 and 31 were charged with other terrorist-related offences. Of those charges there were 43 convictions. (From the introduction of the Terrorism Act 2000 up to 31 December 2009, fingerprints and DNA samples have been taken under Schedule 7 on approximately 1,200 occasions.)
When the Terrorism Act 2000 was passed, it is likely MPs intended its stop and search measures to be used to reduce the threat of terrorism and not as a general power to make suspects out of everyone. Some police officers justified their use of section 44 powers by considering it a preventative measure, i.e. the fewer resulting arrests are to be found a proof of its effectiveness as deterring potential terrorists to walk around equipped with items that could help in the preparation of an act of terrorism. Massive use of these powers and zero arrest being the ultimate perfection, according to this perverse logic. I witnessed such logic, with incredulity, in interventions by police officers attending a stop and search conference at Kings College. This is yet another reason why the Home Secretary and parliament must give a very clear message to all police officers of what is acceptable in a democracy... before being forced by the European Court of Human Rights.
Bootnote 1 The data used for the section 43 and 44 graphs was obtained with freedom of information requests to the Metropolitan Police Service (Met) and the British Transport Police (BTP). A year ago, neither the Home Office nor Lord Carlile, the independent reviewer of counter-terrorism legislation, had any data on the use of section 43. The Home Office explained in May 2009, '[s]tatistics on the number of Section 43 stop/searches carried out by Police Forces is not collated centrally; any statistics are collated by individual Police Forces.' Since my requests, the Home Office has regularly published section 43 statistics from the Met in its Home Office Statistical Bulletins. In this instance, the Met was helpful, but the BTP initially refused to provide section 43 or 44 statistics and required some further persuasion from the Information Commissioner's Office. One of the stated reason for non disclosure was that '[t]he law enforcement role of the force could very possibly be compromised by the release of this information.' Considering that it was common for other police forces to publish section 44 statistics and that some section 43 data had published in a Metropolitan Police Authority report into 7/7, this was a surprising reasoning!
Bootnote 2 Azad Ali from the Muslim Safety Forum, mentioned earlier this year at a conference on stop and search at Kings' College some of the allegedly typical (and astonishing) questions asked to Muslim men stopped at borders under the powers of Schedule 7 of the Terrorism Act 2000: Are you good with computers? Have you studied science? What do you want to do in life? What do you think of the Israel-Palestine situation? What does Jihad means to you? What does Ummah means to you? What's your view on arranged marriage? What's your view on the Muslim Council of Britain? Can you tell me what a moderate Muslim is?.
Imagine, being arrested, locked up and questioned by the police for a month and then told to go back to your normal life as they do not have any cause to even charge you. You are innocent, but one month of your life has been disappeared and you have been tarred with the label of suspect terrorist. Will your employer have kept your job as you suddenly left with no notice? Will you still have a home as you've been unable to pay the rent or mortgage, nor any bills? Will your friends still want to be your friends?
This happened to three individuals in the UK.
On Wednesday afternoon next week, Parliament will vote to renew for six months the current 28-day pre-charge detention limit for terror suspects. The use of these powers so far is summarised by the LibDems in their Freedom Bill as follows:
Only 11 people have ever been held for longer than 14 days, and of these only eight were eventually charged (and only three under new terrorism laws). Six people have been held for the full 28 days and three of those were eventually released without charge. Half of the people held for a month in police custody have never been charged with an offence as a result. No one has been held for longer than 14 days since June 2007. The police and the Crown Prosecution Service (CPS) have become more adept at dealing with terrorist suspects. The length of pre-charge detention should now be reduced to 14 days.
To learn more about the 'longest pre-charge detention period of any western democracy' come to the public meeting organised by the Campaign Against Criminalising Communities in association with the Haldane Society of Socialist Lawyers this coming Wednesday:
No to 28-day pre-charge detention. No to punishment without trial - No to the politics of fear.
Public meeting on the detention of people, suspected of having committed terrorist offences, for up to 28 days.
Tuesday 13 July 2010, 7-9pm, Committee Room 4, House of Lords, Westminster, SW1
Hosted by Lord Rea
- Chaired by Bill Bowring – Professor of Law, Birkbeck College
- Imran Khan – Imran Khan & Partners, Vice-President of Haldane Society of Socialist Lawyers
- Isabella Sankey – Policy Director, Liberty
- Jeremy Corbyn – MP
- Hicham Yezza – Writer and activist, Editor of Ceasefire magazine and detained under terror laws for six days. He has recently won his case against the Home Office's attempts to deport him.
- Anne Gray – Campaign Against Criminalising Communities (Campacc)
Under UK law, people suspected of having committed terrorist offences can be held and questioned by police for up to 28 days before being charged with an offence – or else released without charge. Previously terrorist suspects could only be detained for up to 14 days before charge or release (Terrorism Act 2000). When the period was extended under the Terrorism Act 2006, neither the government nor the police gave any credible grounds for requiring a longer period. For anyone called a ‘terror suspect’, the current limit represents an even greater extension from before the Terrorism Act 2000 – when the limit was only 7 days. For ordinary criminal suspects, including those suspected of the most serious crimes such as murder, manslaughter, rape etc, the period is only 96 hours.
The long limit is a dangerous, unjust power. Even shorter periods have been used to stigmatise, intimidate and isolate people by branding them as ‘terror suspects’. The power to arrest and detain suspects under the terrorism legislation permits detention on vague grounds, e.g. that they are suspected of involvement in the preparation, commission or instigation of terrorism. No further details are needed. That suspicion permits the police to detain a suspect for up to 28 days.
The police are supposed to use the period when someone is detained before charge to interview the suspect, and to decide whether or not there is sufficient evidence to charge that person. The police have usually already gathered evidence before they arrest a suspect, and so there is often very little additional evidence to be gathered while the person is detained. It is impossible to justify holding someone for 28 days – four weeks – simply to conduct a few interviews.
This despotic practice puts detainees under enormous psychological pressure. It can be used to extract dubious ‘information’, thus justifying detention of yet more ‘terror suspects’. It can be used for blackmailing detainees to become informers on ordinary activities in their communities. Pre-charge detention acts as a substitute for a proper criminal investigation.
Such a long detention violates the principle of ‘innocent until proven guilty’. It amounts to internment in all but name, thus violating the principle of habeas corpus. Detainees may not know the grounds for any suspicion against them. Detention for up to 28 days is the equivalent of serving a 56 day prison sentence. Lengthy pre-charge detention amounts to punishment without charge, much less a trial.
Such long pre-charge detention is not credibly necessary in order to protect the public. It doesn’t make us safer. But it does encourage a politics of fear and suspicion, creating distrust towards and within the communities who are targeted by such powers. Perhaps for this political aim, the UK has the longest period of pre-charge detention in the Western world.
The Home Secretary intends to ask Parliament to renew the powers for six months. This decision must be made by Parliament by 25 July 2010. If the powers are not renewed by 25 July, then they lapse and the time limit reverts to 14 days.
Ask your MP to vote against renewal. Use the facility on the Liberty website, Charge or Release.
The announcement of the renewal of the current pre-charge detention period limit of 28 days for terrorist suspects was made in a statement by Theresa May. The motion 'to approve a Statutory Instrument relating to Counter-Terrorism' is scheduled to be passed by Parliament on the 2010-07-14. This statutory instrument (SI) is the Terrorism Act 2006 (Disapplication of Section 25) Order 2010, also known as Draft SI 9780111499610. The draft is available as a web page and as a pdf. An explanatory memorandum is also available as a pdf.
Hopefully, the detention conditions have somehow improved since Gareth Peirce and Louise Christian both wrote about how even 14 days or less in Paddington Green affect the mental health of detainees. You may also want to read about the arguments made when this issue came up three years ago in my Detention without trial post.
Update: Justice has published a briefing (pdf) for the House of Commons renewal debate on 28 days pre-charge detention.
First published on 2010-07-07; last updated on 2010-07-11.
The Metropolitan Police Authority (MPA) is having an open public meeting on the National DNA Database (NDNAD) and the use of DNA in policing on 2010-07-01. Organiser Victoria Borwick, Chair of the Civil Liberties Panel, wrote: 'We would particularly welcome firsthand accounts of those who have had their DNA taken by police and have requested that their DNA be removed from the database. In order to cover the range of topics and avoid repetition we shall be grouping the morning into six broad areas of discussion.' Here is a list of the seven areas of discussion:
- What informs your views and knowledge of the DNA database and the use of DNA in policing?
- How do you think the taking and / or retention of DNA affects individuals and families?
- How do you think particular communities are impacted e.g. ethnic minority and / or religious communities?
- What information is provided by the police and other bodies?
- How confident are you about the security of the DNA database?
- What do you know about the process of requesting removal from the DNA database and do you think this is fair?
- What do you think are the positive aspects of the database?
For more information and to register to participate check out the full agenda on the MPA website. Registration closes on 2010-06-21. See you at City Hall in July!
Update Webcast of the public meeting.
Update You can share your view with the MPA about the use of DNA in policing by completing and submitting this questionnaire by 2010-08-31.
First published on 2010-06-16; last updated on 2010-07-20.
Information capture and retention are two very different concepts that too often get mixed up. Many politicians have appeared particularly confused by these two concepts during the debates on the National DNA Database. Cases where a match happened when the suspect's DNA was loaded were wrongly used to justify retention. Exonaration of innocents was also suggested as another justification for retention when a new DNA sample can always be taken from a detained innocent.
Several articles recently commented on the retention, by parts of the NHS, of blood test taken from babies aged between five and eight days old to screen for serious conditions. Action on Rights for Children (ARCH) explains the issue on its blog: 'Mothers are asked for consent, but usually don’t realise that if they consent to the tests (and they would be unwise to refuse these) they are also consenting to long-term storage – and in any case, few women who have just given birth are compos mentis enough to think through the issues, so it’s hardly valid consent.'
NHS Blood Spot Card (image from the NHS website.)
Details on the collection of these blood spots had been included right at the top of the excellent Privacy guide for parents (pdf) prepared by Terri Dowty at ARCH for the launch of the film Erasing David:
What is it? Soon after birth, a tiny amount of blood is taken from a baby’s heel and transferred to a ‘Guthrie Card’ as a series of small spots. These are used to carry out routine checks for any potentially serious health problems. You can get more information here:
In England and Wales babies' blood spots are stored for a minimum of five years. Some hospitals keep them until adulthood.
Will you know it’s happening? Yes, parents are asked for their consent to this procedure.
Pros and Cons: the tests are undoubtedly very important but once you have given consent to any of them, you have no further control over whether the bloodspots are used for other research, nor for how long the Guthrie Card is kept. This is in contrast to many other countries. In Scotland, for example, parents can specify that the Card is only kept for 12 months:
What you can do: If you believe that you should have the option of requesting destruction of the Card once tests are complete, talk to other parents in your area and consider making a joint approach to your MP to raise your concerns.
I haven't found the rate of consent given by new mothers but as this screening is, according to the NHS, 'to identify babies with these conditions early so they can be treated quickly to prevent severe disability or even death' I'd expect it to be very high; new mothers surely want to give the best chance to their babies. According to The Sunday Times, more than 700,000 babies are screened each year. By conflating consent to take the blood samples, to do the tests and to retain the Guthrie Cards, the NHS has strong armed long term retention of these blood samples creating another national DNA database without informed public debate.
Even though the Code of Practice recommends a retention 'minimum of five years as part of quality management', Marie Woolf wrote in The Sunday Times that 'Central Manchester University Hospitals Trust has 1m samples in storage dating from 1984. About 250,000 further samples are stored in the hospital’s laboratory. It plans to store them indefinitely. Cambridge University Hospitals Trust retains samples for 18 years. It stores 400,000 samples at Endex archives in Ipswich, with a further 62,800 samples kept in hospital labs. Great Ormond Street hospital in London began storing samples in 1990 and preserves them for at least 20 years. It screens and stores the samples of about 120,000 babies a year. It confirmed that it had occasionally handed samples to coroners but not to the police.'
The NHS Code of Practice for the Retention and Storage of Residual Spots complete section on retention explains:
Failure to diagnose an affected child through screening may require investigation by re-testing of the original blood spots and is part of quality management. All newborn blood spots will be retained for a minimum of five years as part of quality management. Retention thereafter will depend on the resources and requirements of the screening laboratory and/or health department.
If there's a need for re-testing, surely another blood sample could be taken from the baby (or child, if several years later). The last sentence of this section is telling, budgets and interest of the labs, not medical condition and privacy of the child are the drivers for retention. The NHS does suggest better rationales: research on anonymised blood spots is useful to monitor the health of the general population, and to develop new equipment and tests and for forensic works. However, even for these use cases, there's no need for long term retention. The only listed rationale that would justify an indefinite retention is to help police identify missing and dead individuals. Not a common occurrence, and one that would require a public debate. As a society do we find this limited benefit justifies a universal blood bank?
Last November, the Islington Borough Police set up a Stop and Search Monitoring Group to get regular feedback from members of the public. I joined this group two months ago. So far, I have only attended one meeting of the group. Most of it was dedicated to a presentation by Bevan Powell, Metropolitan Black Police Association, about two schemes: Young Leaders for Safer Cities (YLFSC) and Voice Of the Youth And Genuine Empowerment (Voyage). None of these schemes are currently planned for Islington, but they gave a context for discussing a series of workshops on stop and search.
The Inspector, Stop and Search lead for Islington Police, who set up the monitoring group organised a workshop on stop and search at the North London Central Mosque on 2010-05-14. He was accompanied by his Chief Inspector. Two Safe Neighbourhood Team officers attended as well as three independent members of Islington's Stop and Search Monitoring Group. About twenty kids and young men aged from 10 to 24-year old with the majority between 11 and 14-year old were present. They were very motivated and attentive, asking many relevant questions.
The workshop started with an introduction by the Inspector stressing that the aim of the workshop was to explain the stop and search tactic, and to get some feedback. Those who have had experience(s) of being stopped and searched then briefly talked about what happened:
This was followed by a series of four role play exercises. In the first two, the two police officers acted as police officers on patrol while two kids acted as members of the public being stopped and searched:
For the next two exercises, two kids acted as police officers and the police Inspector acted as a member of the public being stopped and searched. The 'officers' were briefed that an Asian man with a white jacket (description matching that of the Inspector) had been seen at the robbery. At some point during the stop and search, the 'officers' were further instructed that someone had been arrested for the robbery, and hence their suspect was innocent of this crime.
Participants were asked why do they think the police use stop and search tactics. Here are some of the answers:
The Inspector added that the stop and search powers are used to search for knives, drugs, stolen property, offensive weapon, equipment and suspicious individuals in hotspots. When someone is stop and searched the officers must say who they are, their police station, the grounds for the search, and give a copy of the form filled in during the search. If plain cloth officers are conducting a stop and search in addition to identifying themselves they must show their warrant card (though no warrant card was shown so how does one knows what they look like and if they're genuine was left as an exercise.)
The form normally offered at the end of a stop and search may not be
given there and then in section
60 (S60) of the Criminal Justice & Public Order Act 1994
situation as there may no time for doing so. The form can be requested
during the next 12 months (section
1(9) of the Crime and Security Act 2010 will this to three months
if it come into force). The form is not a criminal record, there's
nothing to worry about (
it was not mentioned that the information
collected during the stop and search does end up in the CRIMINT
criminal intelligence database*). The police also use stop and account
to just have a chat with you.
The Inspector pointed out that the UK was exceptional in having well codified stop and search powers. In most other countries, the powers of arrest are used when a stop and search would be enough. These powers are well defined in comparison to the old 'Sus' law. (There was no mention that an arrest in England and Wales has much more severe consequences than in many other countries, in particular with having one's DNA profile ending on the National DNA Database. Also several stop and search powers do not even require any suspicion, namely section 60 of the Criminal Justice & Public Order Act 1994, and section 44 (S44) and schedule 7 of the Terrorism Act 2000.)
The conclusion was that the police will use the stop and search powers but need to use them fairly so you feel safe in your community. It was expressed that the number of stabbings in Islington has gone down in over the past years. (There may not be a link between stop and search and reduction in number of stabbings; criminologist Marian Fitzgerald pointed out that during the same period, the number of stabbings had gone up in Southwark though Southward Borough Police had used S60 stop and search powers more often than Islington Borough Police.)
Many questions were asked, most of them answered, and much feedback offered:
After two busy hours, the workshop was formally closed. Discussions still continued briefly afterwards showing how concerned kids and teenagers are with stop and search, and the interest this workshop created. The role play exercises were an efficient tool to show the difference made by remaining calm in encounters such as stop and search.
Even though the participants may not have understood all the subtleties of all the different powers, they made several comments about needing a better reason for stop and searches. This hints at the problems associated specifically with stop and search powers that do not require reasonable grounds. I was surprised that the Inspector did not mention that officers conducting a stop and search should mention the act authorising the power used. The audience was too young to go into legal details, but stating the law authorising their action does help in furthering confidence in the police. Another surprise was that no-one asked about whether they had to give their names when stopped and searched; in my experience this is one of the most common question of older audiences.
All those who talked about having been stopped and searched mentioned one of the reason given was their 'suspicious look'. It is possible that they misremembered the officers stating instead they were stopped and searched because of their 'suspicious behaviour'. This may not be racial profiling, but it is a serious issue which I hope Islington police will investigate further and report on at a future meeting of the monitoring group. Lastly, most of those stopped and searched didn't take the form, even though it was usually offered to them. Hopefully this workshop will have given them the confidence to take a copy of it, if or when they are next stopped and searched. This is an essential step in making the police officers accountable.
* Update (2010-05-24): I received the following correction from Islington Borough Police:
One thing you mention with regards the CRIMINT- Intelligence database is inaccurate. The 'Stops Data base' is not directly linked to the CRIMINT. Only if an officer believes there is useful intelligence connected to the stop is the stop then linked to the actual CRIMINT Intelligence system. The vast majority of stops are not entered onto the CRIMINT Intelligence database.
Further details about the reporting of stops and searches is contained in Notice 27/2007 from the Met Territorial Policing Headquarters (TPHQ) Stops and Searches Team (obtained on 2009-06-17 using the Freedom of Information Act):
Prevention of Double Keying
It has become common practice across the Metropolitan Police Service for data from the Form 5090 to be entered into CRIMINT in addition to the Stops Database. This is an unnecessary duplication of work and effort as all information on the Stops Database is contained within the Corporate Data Warehouse and is fully searchable through the Integrated Information Platform which every Borough Operational Command Unit has access to.
It is accepted that officers will, on occasions, glean information as a result of a stop and search/encounter that cannot be captured on the Form 5090 or placed on the Stops Database. Officers must create a separate CRIMINT entry in these circumstances, on all other occasions the stop will be recorded on the Stops Database alone.
Officers should ensure the Stops Database is populated with as much information as possible to allow detailed searches to be performed.
Update (2010-06-09): Emma Norton has posted a concise recap on Liberty Central of the main stop and search powers and what information officers must give you.
First published on 2010-05-18; last updated on 2010-06-09.
Paul Chambers has been convicted for writing a silly tongue-in-cheek message, a joke, on his Twitter feed. 'The message was “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!” This was in response to a news feed that he had just received that the airport was closed due to the weather conditions prevailing at that time.' He had booked a flight for the following week to meet his partner.
He was prosecuted under section 127(1) of the Communications Act 2003 for sending "by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character". District Judge Jonathan Bennett after a hearing at Doncaster Magistrates Court, found that the message was 'was of a menacing nature in the context of the times in which we live.'
Paul Chambers now has a criminal conviction, lost his job, and was ordered to pay a £385 fine, a £15 victims surcharge (which victim?) and £600 costs, all for writing a joke - however poor you may find it - because of the times in which we live humour is too dangerous a weapon. That means that an email, posting a blog post, comment to an article, etc. construed - in the times in which we live - to be menacing (or grossly offensive, indecent or obscene) can be enough to get a criminal record. The times in which we live are also justification to stop and search anyone without reasonable suspicion, use secret evidence or national security reason to convict individuals without them knowing why, keeping the DNA of innocents, etc.
Paul Chambers wrote about what happened to him in the Guardian: My tweet was silly, but the police reaction was absurd. His partner wrote a guest post on Jack of Kent about her experience: Paul Chambers: Guest Post by CrazyColours.
Legal blogger Jack of Kent has written extensive analysis of worrying aspects of this case, in particular:
You can donate to Paul's legal and appeal fund at the Twitter Joke Trial Fund. He has 21 days to decide whether to appeal.
During a visit to the Independent Police Complaints Commission (IPCC) I learn it has a seven year retention policy. This means my IPCC complaint files will be destroyed in 2014.
This week, the Court of Appeal has established that 'closed material', i.e. secret evidence, can never be used in ordinary civil trials. The government has been attempting to use secret evidence more and more making a mockery of the right to a fair trial. For justice to be served, an accused person must know the case against him and be able to scrutinise and challenge the evidence used against him in a fair, open and public hearing. This ruling makes it very clear how judges consider both the importance of fair civil trials and of the risk of temporary emergency legislation limiting civil rights:
69. It is nonetheless tempting to accept that there may be the odd exceptional ordinary civil claim, where the closed material procedure would be appropriate. "Never say never" is often an appropriate catchphrase for a judge to have in mind, particularly in the context of common law, which is so open to practical considerations, and in relation to civil procedure, where experience suggests that unpredictability is one of the few dependable features. However, this is one of those cases where it is right for the court to take a clear stand, at least in relation to ordinary civil proceedings. Quite apart from the fact that the issue is one of principle, it is a melancholy truth that a procedure or approach which is sanctioned by a court expressly on the basis that it `is applicable only in exceptional circumstances nonetheless often becomes common practice.
70. The importance of civil trials being fair, the procedures of the court being simple, and the rules of court being clear are all of cardinal importance. It would, in our view, be wrong for judges to introduce into ordinary civil trials a procedure which (a) cuts across absolutely fundamental principles (the right to a fair trial and the right to know the reasons for the outcome), initially hard fought for and now well established for over three centuries, (b) is hard, indeed impossible, to reconcile satisfactorily with the current procedural rules, the CPR [Civil Procedure Rules], (c) is for the legislature to consider and introduce, as it has done in certain specific classes of case, where it considers it appropriate to do so, (d) complicates a well-established procedure for dealing with the problem in question, namely the PII [public interest immunity] procedure, and (e) is likely to add to the uncertainty, cost, complication and delay in the initial and interlocutory stages of proceedings, the trial, the judgment, and any appeal.
The Court of Appeal has today “firmly and unambiguously” rejected the government’s argument that it is open to a Court, in the absence of statutory power, to order a “closed material procedure” in relation to the trial of an ordinary civil claim, such as the claims of former Guantanamo detainees brought against the British Security Services and various government departments for alleged complicity in their torture and maltreatment over several years.
On 18 November 2009, in a highly controversial judgment, Mr Justice Silber ruled that in principle it was possible for a Court to allow a party to rely on closed evidence and closed pleadings in a civil claim for damages. As the law currently stands, if the government successfully claims “public interest immunity,” excusing them from disclosing material in the civil courts (for instance, on the grounds of national security) they are then not allowed to rely on the material. The government’s proposals would have meant that they would be able to rely on such evidence, the judge trying the case would be able to see it and make a judgment dependant on such evidence but the other party and their legal team would not be able to see it, respond to it or cross-examine witnesses on it . This was particularly troubling in the context of such serious allegations, leading the Claimants to appeal against the judgment.
Today, Lord Neuberger (Master of the Rolls), Lord Justice Maurice Kay and Lord Justice Sullivan unanimously agreed with the Claimants that such a procedure would undermine some of the most fundamental principles of the common law and fly in the face of the Civil Procedure Rules.
Their Lordships referred to the “cardinal requirement that the trial process must be fair, and must be seen to be fair… which under the common law means that a trial is conducted on the basis that each party and his lawyer, sees and hears all the evidence and all the argument seen and heard by the Court.” They also referred to another fundamental principle of English law that a party to litigation should know the reasons why he won or lost.
Their Lordships commented that
“[i]f the court was to conclude after a hearing, much of which had been in closed session, attended by the defendants, but not the claimants or the public, that for reasons, some of which were to be found in a closed judgment that was available to the defendants, but not the claimants or the public, that the claims should be dismissed, there is a substantial risk that the defendants would not be vindicated and that justice would not be seen to have been done. The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.”
Speaking after the judgment was delivered today, Sapna Malik, Partner at Leigh Day & Co, acting for Binyam Mohamed said:
“We are delighted that the Court of Appeal has fully accepted the Claimants’ arguments that the government has been seeking to introduce, via the backdoor, unconstitutional and manifestly unfair measures to defend these most serious of allegations, which the Courts must be emphatically resist.”
Clive Stafford Smith, Director of Reprieve, who acted for Binyam Mohamed in the United States, said:
“Perhaps the most dangerous legacy of the ‘War on Terror’ is a creeping secrecy that threatens to shutter the workings of British justice away with access limited to a privileged few. We applaud the Court of Appeal’s excellent decision to keep our courts open, so that the British public may continue to see justice done in their name. It is crucial that our government accept this ruling, and stop hiding the mistakes of the ‘War on Terror’ years. We cannot learn from history unless we know what it is.”
The Coalition Against Secret Evidence (CASE) petition
asking 'the Prime
Minister to ensure that everyone in the United Kingdom has the right to
a fair trial by ending the use of secret evidence to obstruct the
judicial process.' will reopen for signatures upon the
formation of the Government following the General Election and close by
If you haven't done so yet, sign the petition
when it reopens.
As of when the Number10 petition site temporarily closed to signatures,
this petition had collected 298 signatures putting it in the top 7% most popular open petition by number of signatures.
Update: Adam Wagner, in a post on the UK Human Rights Blog, mentioned two other rulings about secret evidence: 'The Court of Appeal has told the Government three times in 24 hours that it cannot keep evidence secret in civil proceedings. Similar reasoning was applied in three different contexts; the employment tribunal, a case relating to Iranian nuclear proliferation and a claim for damages for foreign torture.'
Update: Anya Proops in the Panopticon blog also published a post summarising these three judgments and concludes that '[These judgments] also confirm that a distinction is to be drawn between those cases where there is a specific statutory or Parliamentary authority for a closed material procedure to be adopted (Tariq and Bank Mellat) and those cases where no such authority exists (Al Rawi). In respect of the latter cases, the Court of Appeal has effectively held that: (a) in general, the only procedural course available to the State is to make an application for evidence to be excluded under the PII procedure; although (b) there may be cases where exceptionally third party interests or the public interest warrant a different approach being adopted.'
Update: The petition is now closed and awaiting a response from the new administration. It closed on 2010-06-03 with 298 signatures. It is in the 10% most popular closed petitions (2,956 out of 29,701).
First published on 2010-05-05; last updated on 2010-06-06.
The director, David, is going to attempt to disappear in the UK to test the boundaries of our police, surveillance and database state, while being traced by our countries top private investigator. This 'stunt' will be used as a way of exploring the larger issues surrounding privacy.
I expressed reservations about the disappearance 'stunt' part of the project. It felt like too many constraints were needed to make it work. I saw the film last week, and they have managed to pull it off successfully. The presentation as a detective story with both the points of view – of the chased (David Bond) and of the chasers (Cerberus Investigations) – makes for an interesting thriller. One change from the early brief is that the film tests aspects of private surveillance and the database state, but the police and their many databases are left out. The team from Cerberus slowly builds a vast profile of David Bond mainly through querying online information and using traditional sleuthing techniques such as checking the bins of David and his parents (for which they had prior consent). The experiences of being under surveillance and of realising how much data is held on us by commercial companies and public organisations has affected David Bond and his family beyond the film.
One particularly interesting aspect of the film is that it explores privacy issues that are not always easy to represent visually. Too often privacy is depicted in films solely with CCTV. A CCTV control room does feature in the film but only briefly. One instance where the documentary is particularly efficient is in communicating both the mass of data held on us and how one can figure out what is held on them. There is a scene where David goes through the piles of responses to subject access requests he had sent (using the Data Protection Act). The thickest response was from Amazon. Another response describes his mood when he contacted that organisation.
A number of privacy experts are interviewed in the film. Terri Dowty from Action on Rights for Children (ARCH) in addition to her interview has published, on the film's website, a Privacy guide for parents (pdf) detailing the information collected about children from the moment they are born. It's worth browsing through it even if you don't have kids to fully realise the extent of data collection going on. The website hosts more information such as education packs. If after seeing the film you decide to send a few subject access request, you may also find my simple guide to the Freedom of Information and Data Protection Acts useful.
Note that if you plan to attend this free public debate on Thursday, I just learnt that you must register for it. Here are further details from the registration page:
‘Surveillance, Politics and Civil Society’
Featuring Shami Chakrabarti, Directory of Liberty, Professor Clive Norris, University of Sheffield, Anna Minton, Writer/Journalist and David ‘Panda’ Mery, Writer/Activist
Chair: Professor Dr David Murakami Wood, Queen's University, Canada
Thursday 15th April 2010 at 7pm - 8:30pm, Oliver Thompson Lecture Theatre, City University London**
** Despite the event being free to members of the public, individuals MUST register in advance to guarantee a space in the auditorium.
Surveillance has become a topic of central importance for citizens, academics and governments alike as new space-time transcending monitoring technologies flood the market, pre-emptive, at-a-distance governance becomes the new logic of contemporary institutions, organisations seek to streamline and better administer their everyday practices, individuals perform and search for meaning within the spaces created by surveillance processes and the world becomes overlaid by a dense series of increasingly interconnected electronic flows. Several important questions are raised by these developments: how, for example, should relations between citizen and state, citizen and commerce and among citizens themselves be understood? In what ways might Human Rights principles be threatened by global flows and exchanges of data? How are concepts like personhood, identity, trust and privacy being transformed and shaped through surveillant practices? How might such developments be challenged and struggled over? What implications does national security policy have for individually situated notions of human security?
‘Surveillance, Politics and Civil Society’ seeks to address such questions by drawing on the views of a number of high profile, expert speakers and input from members of the audience. In particular, the session will explore what the role of civil society should and can be in regulating surveillance growth and expansion. Topics of debate will include: whether or not the state has become more authoritarian via its data collection practices and activities; what issues are raised by surveillance cultures embedding themselves into the everyday fabric of social life and social organisation; whether there are constitutional tools available to citizens to challenge surveillance protocols and processes, and a host of other related subject matter.
The event will be followed by a short wine reception, kindly sponsored by the Centre for Law, Justice and Journalism, City University London.
Details of other events this week, on hostile reconnaissance, police monitoring and privacy were posted earlier in Surveillance, hostile reconnaissance and legal observation.
Why is it that the topic of the National DNA Database (NDNAD) brings the worse crassness out of politicians? Two days ago, the Tories changed their mind on what they had long claimed to be a 'point of principle', allowing the Crime and Security Bill to become an Act with its DNA clauses intact. Today, Gordon Brown went a few notches up by misleading the public about DNA retention in the presence of the family of Sally Anne Bowman, at a campaign event in Stevenage. His arguments, that retaining the DNA profile of anyone arrested is essential to bring to justice criminals, including the killer of Sally Anne Bowman, has been debunked before, many times.
Retention of DNA profiles of innocents does not improve crime detection. What helps is retention of DNA profiles of crime scenes. More details in the post: Home Office gets DNA database funding priorities wrong. Tables of the detection rates for the past two years are in this post: Sorry Affairs Committee; it has remained over the years close to 0.36%.
The Home Office has still not published data supporting the claims by ministers of cases where DNA evidence has been essential. What has been published by the Home Office has times and again proven to be unreliable: the research by the Jill Dando Institute published with the Home Office consultation was from my reading of it an estimation based only on approximately 18 cases taken over three days at one year interval; more about this in the post: Sentenced to genetic probation (the research was later disavowed by the Institute's director). The research published alongside the summary of responses to the consultation is of little use as it 'does not provide evidence to inform the length of any general DNA retention period'; more details in the post: Home Office still wants your DNA profile, and your PNC record. When the Home Office listed five case studies in a letter to a Committee scrutinising the Crime and Security Bill, two of these five were in fact one and the same; more details in the post: Home Office: five equals four.
In the specific case of Sally Anne Bowman, Mark Dixie's DNA was profiled after a pub brawl and then matched to the DNA profile of the crime scene. There was no need for DNA retention of individual profiles in this case. This case and a few others are listed on Liberty's Busting the Myths. Gordon Brown also mentioned how Sally Anne Bowman's boyfriend was eventually exonerated thanks to the arrest of Mark Dixie. What he didn't say is that another innocent man, Kevin Reynolds, whose DNA profile was on the DNA database, was also arrested for this murder and had a second DNA sample taken when his first retained sample should have been enough to prevent his arrest. More details, published two years ago, in the post: DNA retention of unconvicted people.
The National DNA Database has more than five million records including those of close to one million innocents. What happens to their personal and intimate data should get more respect from politicians.
Several events next week may be of interest to some readers of this blog. I will be delivering one of the keynotes on Thursday and will be attending the training workshop on Sunday. I look forward to meeting some of you.
Taking pictures, filming or even just drawing sketches of buildings is often construed as hostile reconnaissance and risks you being stopped and searched, or even arrested. (Even my innocent doodles were construed by the Police as being a hostile reconnaissance of a tube station.) This rally on Terror Laws, Civil Liberties & Press Freedom is organised by the London Photographers’ Branch:
Surveillance, Politics and Civil Society is the title for a set of four public keynotes that will close the three day conference A Global Surveillance Society? The conference itself is registration-only, but these closing keynotes are part of a public event for which the organisers look forward to attract a healthy representation from the public for the Q&A discussion.
Update: Despite the event being free to members of the public, you must register in advance to guarantee a space in the auditorium. (The event will be followed by a short wine reception.)
My keynote will focus on the role of the citizen in confronting and challenging surveillance protocols. I intend to briefly explain the facts of my arrest, to give some context, and then spend most of the keynote talking about the instances of surveillance and data collection I faced and how to proceed to find out what the state has on you, how to get off the databases and other more general measures.
Erasing David is a film about another David, its director David Bond documenting the meaning of privacy and the loss of it. In his film David Bond decides to find out how much private companies and the government know about him by attempting to disappear. This screening will be introduced by Jo Glanville, the editor of Index on Censorship, who will also will lead a Q&A afterwards with the director and the private investigators who hunted him. Email to book your free place.
If you're worried about abuse of police powers at protests and in your community, but don't know what to do about it, this training should provide practical answers. It will give you skills to be a legal observer and monitor protests such as those that will happen on May Day in Central London. Sessions will include police powers, stop and search and surveillance, as well as workshops on legal observation and police monitoring.
The organiser Network for Police Monitoring is a new organisation made up of individuals involved in Campaign Against Criminalising Communities, Climate Camp Legal Team, Fit Watch, Legal Defence and Monitoring Group and Newham Monitoring Project. To have an idea of numbers, they would appreciate an email if you're planning to attend.
(Updated with details of the screening of Erasing David, with registration information for the debate 'Surveillance, Politics and Civil Society' and the recording of the hostile reconnaissance event.)
First published on 2010-04-07; last updated on 2010-04-25.
This afternoon in the Lords, Baroness Neville-Jones said 'Systematic reform is needed and a new approach focused on the guilty and on those who pose most risk. This is a fundamental root and branch change that we will not achieve today but which must be achieved by a new Government. For now, we take the view that it is important that we have in law acceptance of the proposition that the indefinite retention of innocent people’s DNA is unacceptable and illegal.'
Only three weeks ago on the closing panel at a conference on Stop and Search at Kings College, Crispin Blunt MP, Shadow Home Affairs Minister for Counter-Terrorism agreed to pledge that during the wash-up the Conservatives would not go further than the Scottish approach in relation to the DNA retention clauses in the Crime and Security Bill. This had been the position of the Conservatives until today. This afternoon, the Conservatives have accepted that this is no longer a 'real point of principle' for them as they have withdrawn their opposition to the bill. That means accepting the retention of the DNA profiles of innocents for six years (possibly more 'for reasons of national security').
Baroness Neville-Jones made another pledge: 'A Conservative Government if in office will do the following: they will legislate in the first Session to make sure that the DNA database includes permanent records only of people who have been convicted of an offence and, for a more limited period, those charged with sexual or violent offences. Secondly, we will focus efforts on collecting the DNA of all existing prisoners, those on probation, on licence or in prison or under the supervision of the criminal justice system, which the Government have failed to do. Thirdly, we will introduce new guidelines so that those wrongly accused of minor crimes and who have volunteered their sample have an automatic right to have their DNA removed from the database—one thing that this House most strongly objects to.'
Here's the full text of this short debate:
Moved by Baroness Hamwee
2: Before Clause 14, insert the following new Clause—
“Retention, destruction and use of fingerprints and samples
For section 64 of the Police and Criminal Evidence Act 1984 (destruction of fingerprints and samples) there is substituted—
“64 Destruction of fingerprints and samples
(1) Unless provided otherwise in this section, where fingerprints, impressions of footwear or samples are taken from a person in connection with the investigation of an offence, the fingerprints, impressions of footwear or samples or any DNA profile may not be retained after they have fulfilled the purposes for which they were taken and shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom a body part came.
(2) In subsection (1) above—
(a) the reference to crime includes a reference to any conduct which—
(i) constitutes one or more criminal offence (whether under the law of a part of the United Kingdom or of a country or territory outside the United Kingdom); or
(ii) is, or corresponds to, any conduct which, if it took place in any one part of the United Kingdom, would constitute one or more criminal offences; and
(b) the references to an investigation and to a prosecution include references, respectively, to any investigation outside the United Kingdom of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside the United Kingdom.
(3) A DNA sample must be destroyed—
(a) as soon as a DNA profile has been derived from the sample, or
(b) if sooner, before the end of the period of six months beginning with the date on which the sample was taken.
(4) Any other sample to which this section applies must be destroyed before the end of the period of six months beginning with the date on which it was taken.
(5) Fingerprints, impressions of footwear and DNA profiles are not required to be destroyed if they were taken from a person convicted of a recordable offence.
(6) Where any fingerprint, impression of footwear or sample has been taken from a person who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall not be destroyed—
(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the “initial retention date”; or
(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken, such date being the “initial DNA retention date”; or
(c) if an application is made to the court under subsection (7), until such later date as may be provided by subsection (8) or (10) below.
Provided always that if the person is convicted of a recordable offence, subsection (5) shall apply.
(7) On application made by the responsible chief officer of police within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.
(8) An order under subsection (7) shall not specify a date more than two years later than—
(a) the initial retention date in relation to fingerprints or impressions of footwear, or
(b) the initial DNA retention date in the case of a DNA profile.
(9) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.
(10) A fingerprint, an impression of footwear or a DNA profile shall not be destroyed where—
(a) an application under subsection (7) above has been made but has not been determined;
(b) the period within which an appeal may be brought under subsection (9) above against a decision to refuse an application has not elapsed; or
(c) such an appeal has been brought but has not been withdrawn or finally determined.
(a) the period within which an appeal referred to in subsection (9) has elapsed without such an appeal being brought; or
(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (8);
the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.
(12) Subject to subsection (13) below, where a person is entitled to the destruction of any fingerprint, impression of footwear or sample taken from him or DNA profile, neither the fingerprint, nor the impression of footwear, nor the sample, nor any information derived from the sample, nor any DNA profile shall be used in evidence against the person who is or would be entitled to the destruction of that fingerprint, impression of footwear or sample.
(13) Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention, in the case of a fingerprint or impression of footwear or the retention of any DNA profile—
(a) that fingerprint, impression or DNA profile as the case may be need not be destroyed;
(b) subsection (12) above shall not restrict its use; provided that—
(i) no DNA profile may be retained on any child under the age of 10 years; and
(ii) consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible following receipt of such written application.
(14) For the purposes of subsection (13), it shall be immaterial whether the consent is given at, before or after the time when the entitlement to the destruction of the fingerprint, impression of footwear or DNA profile arises.
(15) In this section—
“DNA profile” means any information derived from a DNA sample;
“DNA sample” means any material that has come from a human body and consists of or includes human cells;
“the responsible chief officer of police” means the chief officer of police for the police area—
(a) in which the samples, fingerprints or impressions of footwear were taken; or
(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken;
a “sexual offence” or “violent offence” shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.
(16) Nothing in this section affects any power conferred by paragraph 18(2) of Schedule 2 to the Immigration Act 1971 or section 20 of the Immigration and Asylum Act 1999 (c. 33) (disclosure of police information to the Secretary of State for use for immigration purposes).
(17) An order under this section must be made by statutory instrument.
(18) A statutory instrument containing an order under subsection (17) shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””
Baroness Hamwee: I shall speak also to the amendments grouped with this one and to our objections to Clauses 14 to 23 standing part.
With this amendment we come to the subject of DNA. In the first debate in which I spoke on the Home Affairs portfolio, I said that for Liberal Democrats, civil liberties are in our DNA. The Minister protested that they were in his too, and I do not for a moment doubt it. Unfortunately, although they might be in his DNA, they are not in this Bill.
The current law on DNA retention has been held by the Grand Chamber of the European Court of Human Rights to breach the European Convention on Human Rights. The “blanket and indiscriminate nature”, to use its words, of the law under which the police may retain indefinitely the DNA of the person arrested, whether or not convicted or even charged, failed to,
“strike a fair balance between the competing public and private interests”.
Following the case of S and Marper the Government have got to do something. However, what they are choosing to do in this Bill is only a marginal improvement. Those arrested but not charged or convicted will still have their DNA profile kept on the national DNA database for at least six years. In our view, the retention of the DNA profile of an innocent person for six years is six years too long.
I spoke at Second Reading of the importance of the presumption of innocence over guilt holding in our technologically advanced world; of arrest not being confused with conviction; and of the stigma attached to DNA retention. Evidence of that was debated not only in this House but in the Commons and given to the Home Affairs Select Committee, which has recently published a report on the matter.
The Home Office has relied on research which itself relies on the flawed premise that arrest is an indicator of the risk of offending—arrest not conviction—and it measures the risk of offending by the risk of rearrest. So it appears that two arrests are evidence of criminality. I could go on but I shall not do so because I am aware of how much business the House has to get through—I was going to say tonight but perhaps I should say before we start business again tomorrow.
Members of the Commons discussed the matter at length—they went on because they had more opportunity—and the Conservative Member Mr Brokenshire said that,
“the measure fails to take account of one of the fundamental principles of our liberal democracy: the presumption of innocence before the law unless one has been proven guilty. That principle should be an important guiding factor in framing the debate on retention, rather than being an inconvenient anomaly, as the Government appear to view it, given their historical approach to DNA retention”.—[Official Report, Commons, 8/3/10; col. 41.]
He said that when introducing an amendment that is exactly the same as the amendment we have tabled. I do not often flatter the Conservatives—either sincerely or insincerely—but they will recognise the imitation on this occasion.
I made it clear at Second Reading that the amendment is a compromise. The Scottish model, which this is—or, one might say, the model of my noble friend Lord Wallace of Tankerness—self-evidently is more proportionate than the provisions in the Bill. Innocent people are treated as innocent but there is an allowance for a three-year retention of data in the case of those suspected of sexual or violent offences. I have flattered the Conservatives and now I shall quote the noble Baroness, Lady Neville-Jones. At Second Reading—which seems a long while ago—she said:
“In the absence of a much better put together case than the assertions that we heard this afternoon, the Scottish system has shown that it is capable of delivering. It is the reason why we on these Benches prefer that model. We believe that the state should not retain the DNA profiles of those not convicted of an offence, except in circumstances where the charges relate to a crime of violence or of a sexual nature”.—[Official Report, 29/3/10; col. 1234.]
That is quite right.
In winding up for the Conservatives, the noble Lord, Lord Skelmersdale, said:
“Suffice it to note that both the Joint Committee on Human Rights and your Lordships’ Constitutional Committee doubt whether Clauses 14 to 21 really are Human-Rights-Act-proof”.—[Official Report, 29/3/10; col. 1268.]
He said that predicting what would happen with the Bill was above his pay grade, although it was obvious from his speech that he expected it not to see Royal Assent. I therefore trust that the noble Baroness will not now support the Government in view of her own and her party’s clear position previously. I await to hear her views with interest, but if she tells the House that this is a matter for review and if her party finds itself in a position to conduct a review it will do so, why not on the basis of the Scottish model rather than the regime which her party and she have condemned and which may well be—following high legal costs and much emotional agony—condemned by the European court? I beg to move.
The Earl of Onslow: My Lords, I am a member of the Joint Select Committee on Human Rights; I shall leave it the day after tomorrow, or whenever Parliament rises, because I have done my four years. The committee looked at this issue and did not think it would pass the Human Rights Act hurdle. When you take a horse racing, it is silly to put up an overscoped fence so that it falls flat on its face, and then put up another fence which is too big for it and, bang, down it comes again. That is an exact parallel to what the Government are doing in this case.
DNA is one of the greatest aids we have had in modern times to assist in solving crimes, particularly unpleasant and nasty ones—I totally concede that. However, we must never lose sight of the liberties of the subject. That means that the DNA collected from innocent people who volunteer to give it in a murder inquiry should automatically be destroyed; the DNA of people who have been arrested but against whom charges have not been brought should be destroyed; and the DNA of people who are charged and acquitted should also be destroyed. I do not know whether the amendment goes far enough or whether it is comprehensible—I looked at it, tried to read it but could not understand it—but I was efficiently briefed by Liberty. I believe that that sums up Liberty’s position, as well as I can remember it, and also the position of the Joint Committee on Human Rights. We were unanimous on this issue, as we are on quite a few matters, and there was no question of any split or vote on it.
When a case is lost in the European Supreme Court, it is stupid of the Government, instead of accepting that the case is lost, to produce legislation which will lead to them losing again. I fear that the provisions in the Bill will produce another fall at the second hurdle. The amendment should at least be taken seriously, if not accepted.
Baroness Kennedy of The Shaws: My Lords, I, too, support the amendment. I can always be relied upon to be consistent on this issue. From the point where the law was changed to allow the retention of the DNA of those who were arrested but subsequently not charged, I have opposed that retention. People feel quite seriously that there is a stigma attached to the retention of DNA. If they have been arrested and no subsequent charge follows, its retention on the database makes them feel that a terrible wrong is being done to them by the state. That might be different if everyone were on the database from the word go, but it is not the situation that we are currently facing.
I was saddened that the Government did not accept, in light of the European Court’s decision, that there were breaches of human rights principles. While I was not particularly accepting of the Scottish formula, I felt that it was a compromise that the Government should have willingly accepted. It is a great regret to me that they have not done so. I, too, shall support the amendment. It seems to me that a case will go up through the courts, and it is very likely that it will be found that the Government’s new formulation will, like the old one, offend against human rights standards. I would have thought that this was a moment to say, “Enough. Let’s reflect on this over the next period and see what a new Parliament, in whatever form it is, might feel about all these matters in a fresh dawn”.
Lord Judd: My Lords, having spoken on this subject at Second Reading, I feel compelled to say that I have a good deal of good will towards the drift of the amendment put forward by the Liberals. I find it very sad that, at the end of this Parliament, we should be endorsing the erosion of one of the fundamental principles of justice in this country as I have understood it, which is the presumption of innocence.
There will be those for whom there is no question of their presumption of innocence; there will be some who have a qualified presumption of innocence because their name is on a register or record even though they have not been found guilty of any crime. This is not an acceptable situation. I also find it very sad that we should at this stage be dragging our feet not only on what our own Joint Committee on Human Rights and Select Committee on the Constitution have said but on what the European Court has been so firm about.
The issues of proportionality, too, are central to our whole tradition of justice, and this is what has raised anxiety. I would have liked to feel at this stage that we were in the vanguard of defending these principles. I am really concerned about the erosion of everything that we have understood to be the cornerstones of our system of justice.
I am sorry to have to say these things this evening, but, having spoken at Second Reading, I think that it would be pretty feeble just to walk away and not put on record my feelings about the amendment. I shall be very sad if my noble friend is not in some way able to meet them, because I have the highest regard for him and all the responsibilities that he carries so cheerfully and willingly on our behalf. I regard myself as one of the firmest supporters of the Government, but I can put it no other way than to say that I am very sad to find myself in this predicament this evening.
Lord Avebury: Your Lordships might be interested to hear a story which I am about to tell of a person who had his DNA taken when he had no criminal record. Having gone through the immigration process at Heathrow Airport—he was a British citizen—he was stopped by Special Branch on the land side, taken aside, detained and made to give a sample of his DNA and fingerprints. When I was asked to assist him in getting the samples removed from the database, I wrote to the relevant Minister in the Home Office and was told there was a procedure whereby one could appeal to the relevant chief officer of police for a special review. I wrote to the chief officer of the Metropolitan Police; I gave him the details of what had happened and asked him to conduct a review. After a while, he wrote back and said that he was not the chief officer concerned because he did not deal with Special Branch cases. I therefore had to write another letter to a different chief officer of police.
To cut a very long story short, it took 14 months for that review to take place, during which the man concerned had, as noble Lords have said, a stigma hanging over him because his samples were taken on the database. People would say, “Well, surely he must have been guilty of something if they felt so certain that the DNA was required to be kept in this way”. I subsequently discovered that only three people had been successful in making a special appeal and getting DNA samples removed from the database. Everything that has been said about the violation of our human rights and the ignoring of the European Court is reinforced by what one knows about these cases.
I sincerely hope that the Minister will pay close attention to the amendment and, if not agree to it, at least guarantee that we will take steps to bring ourselves into conformity with our commitment to European human rights legislation.
Baroness Neville-Jones: My Lords, the retention, destruction and use of DNA samples have been the subject of much debate over several years. The controversy has centred on the indefinite retention of the DNA profiles of those who have committed no crime or who have been cleared of allegations against them, which has been found to be illegal. We on these Benches, with others, have successfully pushed the Government to end the permanent retention of innocent people’s DNA. Hence we now have these government proposals in the Bill.
I said at Second Reading that we still preferred the Scottish model, under which the state would retain for a limited period of three to five years the DNA profiles of those not convicted of an offence only in circumstances where charges relating to a crime of violence or of a sexual nature had been brought. The Home Secretary says that the police in Scotland do not think that their model works well; the Minister said the same thing when we last debated this matter. However, this is not borne out by the evidence, which shows that the Scottish system has a higher detection rate than that in England and Wales. Moreover, Labour Members of Parliament supported the Criminal Procedure (Scotland) Act 1995 which put that system in place. I therefore beg leave to take issue with those who claim, as the Home Secretary has done, that to take the Scottish system seriously is not to take the issue seriously.
The problem is that we are out of time for proper discussion, so we have to look at the essentials. First, we now have cross-party acceptance of the principle that the indefinite detention of the DNA profiles of those who are innocent is wrong and ineffective. We need to get this principle into law. It is also a requirement of the ECHR’s judgment, which we agree with and respect. Secondly, the legislation offers some control over one of the other most obnoxious features of current system, which is the postcode lottery involved in getting off the database the profiles of those who should not be on it.
At this late stage, the Liberal Democrat Benches have put forward an amendment which in some respects travels back from the rather uncompromising position that they have taken hitherto. Sadly, it is too late for proper discussion. Were we able to have that, there would be a number of changes that we would want to try to make. The amendment fails for instance to provide for getting on to the database the profiles of those who have been convicted of criminal offences but who have never been put on it. There are a significant number of people who should now be on that database, if we regard the database as being a way of usefully detecting crime.
The position of my party is absolutely clear. We do not resile from the view that the entire system needs to be overhauled, not piecemeal but systematically. A Conservative Government if in office will do the following: they will legislate in the first Session to make sure that the DNA database includes permanent records only of people who have been convicted of an offence and, for a more limited period, those charged with sexual or violent offences. Secondly, we will focus efforts on collecting the DNA of all existing prisoners, those on probation, on licence or in prison or under the supervision of the criminal justice system, which the Government have failed to do. Thirdly, we will introduce new guidelines so that those wrongly accused of minor crimes and who have volunteered their sample have an automatic right to have their DNA removed from the database—one thing that this House most strongly objects to. It is not about one party being soft on crime and one party being tough on crime, as the Home Secretary said; that is absolute nonsense. We all agree that DNA is an important and useful tool. The issue is one of creating a DNA database that works and that has public trust, given that detections have fallen although the number of profiles has ballooned. This is a point that should not be missed. In fact, the prison system is not working very well because, although we have increased numbers put on it, the actual number of detections is falling.
Systematic reform is needed and a new approach focused on the guilty and on those who pose most risk. This is a fundamental root and branch change that we will not achieve today but which must be achieved by a new Government. For now, we take the view that it is important that we have in law acceptance of the proposition that the indefinite retention of innocent people’s DNA is unacceptable and illegal.
Lord West of Spithead: My Lords, I certainly did not understand wash-up before, and I am still not sure that I do understand it. However, it seems to me to be an agreement between the main parties about finding a way ahead, so I was rather taken aback by the noble Baroness, Lady Neville-Jones, listing a great long list of proposals for what is intended to be done. My understanding was that it was only because of an agreement that this has come through—but clearly I have been taken flat aback on that one and do not understand what is going on. But that was my understanding of it.
In any event, as has been said, the proposed amendments would replace our proposal with a variant of the Scottish retention model. It was discussed, of course, in the other place, where it was pressed to a Division and defeated by some 79 votes. As the Committee will be aware, Scotland has a very different approach to the retention of fingerprints and DNA from the one that the Bill proposes. The Scottish model is that DNA samples and resulting profiles must be destroyed if the individual is not convicted or granted an absolute discharge, and DNA may be retained for those not convicted only if they are suspected of certain sexual or violent offences, when it may be retained for three years. That can be extended at perhaps two years at a time with the approval of a sheriff. While there was some support for the Scottish retention model during the Bill’s earlier stages in the other place, it should be noted that the Scottish Executive, as with so many other things that the Scottish Executive do, arrived at their model with no research whatever. It was just plucked out of the air. The model also has significant operational limitations. As the noble Baroness, Lady Neville-Jones, says, it is not just the Government’s view that the Scottish model poses problems for the police; the Scottish Association of Chief Police Officers said in February 2008:
“Our position is that we should move into line, after discussion with Scottish Government, with England and Wales and DNA samples should be taken and retained under strict guidelines from offenders. We are in favour of mirroring any legislation in the UK Parliament allowing the taking and retention of DNA samples from persons arrested for an offence”.
It is interesting to note the talk about higher detection rates in the Scottish example. That is not the case. The Scottish DNA database does not have a higher success rate. The figures quoted on one occasion look at 2005–06 figures and do not compare like with like. The latest like-for-like data, from 2008–09, show that the England and Wales database has a 13 per cent higher success rate than Scotland, so the Scottish Association of Chief Police Officers is correct and our system is somewhat better.
More significantly, consideration also needs to be given to the underlying principal question in this amendment of whether the biometric data of those not convicted of an offence should be treated differently depending on the nature of the offence under investigation. Potentially, that could create different levels of innocence, depending on what it is that someone has not done. We propose a single retention period regardless of the seriousness of the offence for which a person has been arrested. The best available evidence indicates that the type of offence for which they are first arrested is not a good indicator of the seriousness of the offence that he or she might subsequently commit. The Scottish model, proposed in the amendment, therefore risks missing many detections of serious offences due to the nature of the offence originally under investigation. For example, in 2008–09 alone, there were at least 79 rape, murder or manslaughter cases in England and Wales that were matched to the DNA database from DNA profiles that belong to individuals who had been arrested but not convicted of any crime. Of that number, in 36 cases the matches were found to have had a direct and specific value to the investigation. If we had applied the Scottish retention regime and retained DNA profiles only from those arrested but not convicted of a serious crime, at least 23 victims of the most serious crimes, and of course their families, could have been denied justice last year alone.
In the light of the above, and as the retention of DNA is not punitive but a measure to facilitate the detection of future offences, we believe that a single retention period is the correct way forward. Indeed, on the point of it not being punitive, a number of speakers have talked about being on the database as being a stigma. I believe that it is a stigma only if people know that someone is on the database. I personally have no concern about being on it. Almost nobody knows that someone is on the database. It is a stigma only if someone knows that you are there.
On the Motions that Clauses 14 to 23 should not stand part of the Bill, I point out that if these Motions were carried we could be no further forward than we were at the beginning of last year. We would still be in breach of the European Court’s ruling, as a number of noble Lords have said, and we would not have a legislative framework for the retention of DNA profiles and fingerprints. We consider that our DNA retention proposals represent an appropriate balance between public protection and protecting individuals’ rights and liberties, based on the best available research. We also believe that it will meet ECHR requirements and the ECHR judgment. While some have criticised elements of our research evidence, I remind your Lordships of the key points that the evidence points us to. We can justify retaining the DNA of people who have been arrested but not convicted while the risk of offending is higher than that of the general population. Our analysis suggests that that risk, as measured by the risk of rearrest, is higher than the general population for six years following the first arrest. While arrest is only a proxy indicator of the risk of offending, the nature and volume of data currently available to us mean that a more precise arrest/conviction analysis is likely to be less reliable. Yes, we can do more work, but at least we have done some analysis, unlike under the Scottish system. The precise length of time to equalise the risk may vary in either direction due to the uncertainties in the analysis and data. On balance, these uncertainties are more likely to extend the time that it takes for these risks to be equal, which would argue in fact for a longer retention period. But we must do analysis and look at this in much more detail.
The noble Earl, Lord Onslow, referred to samples being taken from volunteers. Those samples can and must be removed from the database on request, and DNA from a volunteer is put on the database only in very exceptional circumstances, at the explicit request of the volunteer.
Ultimately, the evidence can only go so far to answering the question of what is an appropriate retention period. When there are statistical uncertainties around the estimate, the final decision must be one based on judgment—it is not precise yet—and not evidence alone. But we are trying to build up more evidence to get a better database. That is how we arrived at a retention period of six years, the point at which our research tells us that the risk of rearrest returns to the risk of arrest in the general population. We consider that our proposals are a cogent and considered package and represent a huge change from the situation as it stands, as was touched on by the noble Baroness, Lady Neville-Jones, taking us from a blanket indefinite retention, whereby innocent and guilty are treated alike, and whereby DNA profiles are kept as long as DNA profiles—two finite periods based on research and differentiating between different categories of individual. We further believe that the safeguards outlined in Clause 23 relating to the national DNA database strategy board provide sufficient scrutiny and oversight of the process and will result in clear and consistent guidance being issued in future on the destruction and deletion of profiles. A number of speakers touched on that point.
I am particularly disappointed that, after all the consensual work done in the other place to put into place a new role for the strategy board, noble Lords wish to remove Clause 23. I also put on record my gratitude to the official Opposition for agreeing, as part of the wash-up, that our proposed retention framework should be put on the statute book. That agreement means that we can bring an end to the somewhat protracted process of responding to the judgment of the European Court, giving some certainty to both the police service and the public at large that biometric data will be held under a specific and detailed statutory regime. On that basis, I ask that Amendment 2 be withdrawn and that Clauses 14 and 23 should stand part of the Bill.
Baroness Hamwee: My Lords, I am very grateful to those noble Lords who have supported my amendment and my opposition to certain provisions in the Bill. I hope that they will forgive me if, in the interests of time, I do not go through all the points that they made. The Minister said that he still does not understand wash-up; he had thought that only what was agreed went forward. He said that after listening to the noble Baroness, who seemed to be opposing the Government’s proposals. All I would say is: indeed.
On having no research of the Scottish model, the Home Office research, by all accounts, seems to have been—what can I say?—a bit dodgy. It is certainly not as substantial or as useful as those looking for a solution to all of this would want to find. I understand, of course, that the police want the most extensive tools possible. The Minister talked of detection rates; my response is that the Home Affairs Select Committee, in one of its conclusions to the report that it published only recently, on 8 March, said:
“It is currently impossible to say with certainty how many crimes are detected, let alone how many result in convictions, due at least in part to the matching of crime scene DNA to a personal profile already on the database, but it appears that it may be as little as 0.3%”.
It went on that,
“we note that the reason for retaining personal profiles on a database is so that the person can be linked to crimes he/she commits later”.
Yes, the Government are proposing a single retention period—but one which is too long.
The noble Lord gave examples of where DNA has been used to solve crimes. We all know about hard cases and bad law. As I have said, the general view is that there is a poor evidence base for what is proposed. He said that if the clauses do not stand part of the Bill, we will be no further forward in responding to the European court. Indeed, that is absolutely my point; it would then be necessary to reconsider the matter.
For the Conservatives, the noble Baroness says that we are out of time for proper discussion, that it is too late for that and, in effect, that the amendment—she did not use this word—is inadequate. I thought that I could have done no better than using the Conservatives’ own amendment. If it is inadequate—in my view it would be a compromise, but one which I hoped would take the noble Baroness and her troops with us—better to start from the inadequate than the bad. The Conservatives, if they do not support these Benches on these amendments, must accept responsibility along with the Government for the bad. I wish to test the opinion of the House.
Division on Amendment 2
Contents 53; Not-Contents 159.
Amendment 2 disagreed.
Division No. 2
Addington, L. [Teller]
Alton of Liverpool, L.
Bonham-Carter of Yarnbury, B.
Finlay of Llandaff, B.
Garden of Frognal, B.
Harris of Richmond, B.
Jones of Cheltenham, L.
Kennedy of The Shaws, B.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Livsey of Talgarth, L.
Maclennan of Rogart, L.
Mar and Kellie, E.
Miller of Chilthorne Domer, B.
Oakeshott of Seagrove Bay, L.
Phillips of Sudbury, L.
Roberts of Llandudno, L.
St. John of Bletso, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Wilson of Tillyorn, L.
Anelay of St Johns, B.
Archer of Sandwell, L.
Astor of Hever, L.
Bassam of Brighton, L. [Teller]
Boyd of Duncansby, L.
Brooke of Alverthorpe, L.
Brooke of Sutton Mandeville, L.
Brooks of Tremorfa, L.
Clark of Windermere, L.
Cope of Berkeley, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
De Mauley, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Forsyth of Drumlean, L.
Foster of Bishop Auckland, L.
Gardner of Parkes, B.
Gibson of Market Rasen, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Harris of Haringey, L.
Hart of Chilton, L.
Hilton of Eggardon, B.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howarth of Newport, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Jones of Whitchurch, B.
Kinnock of Holyhead, B.
Lea of Crondall, L.
MacGregor of Pulham Market, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Masham of Ilton, B.
Massey of Darwen, B.
Mayhew of Twysden, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Bolton, B.
Morris of Handsworth, L.
Nicholson of Winterbourne, B.
Norton of Louth, L.
O'Neill of Clackmannan, L.
Paisley of St George’s, B.
Patel of Blackburn, L.
Perry of Southwark, B.
Ponsonby of Shulbrede, L.
Royall of Blaisdon, B.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Taylor of Holbeach, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Williamson of Horton, L.
Young of Norwood Green, L.
Update: On April 8th at 5:22pm, Mr Speaker announced that the House has been to the House of Peers where a Commission under the Great Seal was read, authorising the Royal Assent to twenty Acts including the Crime and Security Act 2010.
The Home Office proudly confirmed:
The Act contains the following provisions:
- a new DNA retention regime to hold the DNA profiles of convicted offenders indefinitely and keep the DNA profiles of those who are arrested but not convicted of a recordable offence for a fixed amount of time;
- powers for police to retrospectively take DNA samples from violent and sexual offenders returning to the UK following conviction overseas, and to collect DNA from such convicted offenders who are no longer in prison;
- a mandatory parenting needs assessment when young people aged ten to 15 are being considered for an antisocial behaviour order (ASBO) and parenting orders where they have breached their ASBOs;
- powers for police and local authorities to apply to a county court for an injunction against young people over 14 to prevent gang related violence, for example prevent a gang member from meeting other named gang members or going into a particular 'territory';
- domestic violence protection orders requiring an alleged domestic violence perpetrator to leave the home for a fixed period of time;
- a licensing scheme for wheel clamping companies and an independent appeals process for motorists who feel they have been wrongly clamped;
- financial compensation for British citizens who have been injured or bereaved by a terrorist attack overseas;
- powers for licensing authorities to make an order restricting the sale or supply of alcohol between the hours of 3am and 6am;
- reduced amounts of information that police must collect when stopping and searching an individual;
- powers for police to search individuals subject to control orders and to seize items of concern where appropriate;
- a new offence of possession of an unauthorised mobile phone or other electronic communications device in prison; and
- a new offence of failing to prevent minors from having access to air weapons.
First published on 2010-04-07; last updated on 2010-04-08.
On Thursday morning, a one minute silence will be observed at Cornhill by Threadneedle Street at 11am to remember the death of Ian Tomlinson a year earlier.
The following open letter to the Director of Public Prosecutions is published in the Thursday issue of The Guardian:
A year on, we still wait for answers about Ian Tomlinson's death
It has now been one year since the tragic death of Ian Tomlinson during the G20 protests in the City of London on 1 April. While we appreciate a fair and thorough investigation takes time, Ian's grieving family has been left in limbo for a year waiting for a full explanation about the circumstances of his death. There is now very real concern as to whether the Crown Prosecution Service (CPS) proposes to charge anyone in respect of the assault and death of Ian.
The CPS has been in possession of the provisional Independent Police Complaints Commission investigation findings since August 2009. We understand that these findings, at least in part, will provide the basis for a decision on whether to prosecute anyone for Ian's death. We also note that the director of public prosecutions said in a Guardian interview (21 September 2009) that he hoped the CPS would reach a decision "within a few months".
Delays in the investigation and charging decisions increase the suffering for families of victims leaving them unable to gain closure and move on with their lives. Families are greatly concerned not to prejudice the process and are therefore effectively silenced from expressing their views publicly about the death of their loved one. They are desperate to ensure any potential future legal proceedings are not undermined nor an excuse found to abandon any cases that might be brought. The Tomlinson family has endured a year of public scrutiny unable to respond to questions about Ian's death, with little they can do but wait for the outcome of a decision. The delay however is now intolerable.
The policing of the G20 protest caused widespread public concern around use of excessive force by police officers. Proceedings against many protestors arrested on the day, as well as a number of reviews and investigations into the events of the day, have all been concluded. In the case of Ian Tomlinson, there is a heightened need for the statutory investigating body to be seen to be carrying out justice in a robust, transparent and timely manner to address public confidence. One year later the public, like the Tomlinson family, are still left with unanswered questions about how and why Ian died at the G20.
In the absence of any updates from the CPS, we have growing concerns about the investigation into Ian's death. There has been a complete lack of communication and transparency about the delay into concluding the investigation into Ian's death that calls the CPS's credibility into question.
As we have already set out, we do not wish to prejudice any investigation or potential proceedings but believe that either a decision or public explanation is due. We call on the CPS to fulfill its public duty regarding the investigation into the death of Ian Tomlinson.
Julia Tomlinson, Ian Tomlinson Family Campaign
Estelle du Boulay, Newham Monitoring Project
John McDonnell MP
Dr Caroline Lucas MEP
Jean Lambert MEP
Bob Crowe, RMT
Mark Serwotka, Public and Commercial Services Union
Shami Chakrabarti, Liberty
Deborah Coles, Inquest
Vivian Figueiredo, on behalf of the family of Jean Charles de Menezes
Samantha Rigg-David, on behalf of the family of Sean Rigg
Penny Green, professor of law and criminology, King's College London
Samantha Patterson, sister of Jason Mcpherson
Terry Stewart, The Friends of Blair Peach
Jenny Jones, Green party Metropolitan Police Authority member
Peter Herbert, Society of Black Lawyers
Cllr Duwayne Brooks, Liberal Democrat for Downham Ward
Pete Firmin and Andrew Fisher, Labour Representation Committee
Darren Johnson, Member of London Assembly
Frances Wright, Camp for Climate Action
Val Swain and Emily Apple, Fit watch
Pragna Patel, Southall Black Sisters
Sukhwant Dhaliwal, Women Against Fundamentalism.
Christine Shawcroft, Labour Briefing
David Rosenberg, Jewish Socialists' Group
Patrick Ward, United Campaign Against Police Violence
Estella Schmid, Campaign Against Criminalising Communities
Professor Gargi Bhattacharyya, sociology and public policy, Aston University
Councillor Romayne Phoenix, London Green party campaigns co-ordinator
Joseph Healy, Green party regional councillor for London
Andy Hewitt, co-chair of the Green party trade union group
Teresa Delaney, co-chair of the Green party trade union group
Frances Webber, human rights lawyer
Harriet Wistrich, solicitor at Birnberg Peirce
Ronan Toal, barrister, Garden Court Chambers
Hossein Zahir, barrister, Garden Court Chambers
David Watkinson, Garden Court Chambers
Anya Lewis, Garden Court Chambers
Richard J Harvey, Garden Court Chambers
David Emanuel, Garden Court Chambers
Yasin Patel, 25 Bedford Row Chambers
Rajiv Menon, Barrister, Garden Court Chambers
Professor Mick Ryan, former chair of Inquest
Zoe Mercer, When No One is Watching Campaign
Dr Emma Williamson, Research Fellow, Centre for Gender and Violence Research, University of Bristol
Professor Phil Scraton, Queen's University, Belfast
Dr Sacha Darke, senior lecturer in socio-legal studies and criminology, Department of Social and Historical Studies, University of Westminster
Mohan Ambikaipaker, University of Texas
Yasmin Khan, War on Want
Camilla Graham Wood
Doctor Sheila Preston
Jack Gordon Harris
The CPS was already considering whether to press charges at the time of a candlelight vigil last December.
Update:The DPP has published a statement regarding CPS decision on the death of Ian Tomlinson:
I readily accept the responsibility of the CPS to fulfil its duty regarding the investigation into the death of Ian Tomlinson. That investigation must be thorough, effective and impartial. And, I am afraid, in this particular case that means that it is taking longer than originally expected.
As we have previously explained, the CPS and the IPCC are currently trying to obtain some further information. This relates to the expert medical evidence which is crucial to the proper determination of this case. Both the CPS and the IPCC are working as quickly as is compatible with a careful investigation in this difficult and complex case.
But I acknowledge the frustration and anxiety that Mrs Tomlinson must be experiencing. In the circumstances, I will be writing to her privately today.
Keir Starmer QC, Director of Public Prosecutions
The Guardian's coverage of the G20 protest anniversary includes comments of the New York banker who shot the video of Ian Tomlinson being assaulted by the police: 'My motive was and remains to aid truth and closure for the family, though in hindsight it has become much more than that. As the press coverage went on following the Tomlinson incident, it felt more and more clear that the circumstances of the death were being covered up. Given a few weeks, Mr Tomlinson would have become another tragic footnote and then forgotten. His family deserved more than that.'
The BBC has a detailed report of this morning's vigil. (See Harpymarx for a more illustrated report.) The news article concludes with an interview of Samantha Rigg-David, whose brother Sean Rigg died in police custody in Brixton, in August 2008, commenting on the 'need to bring about a prosecution for one reason in particular: "It will show police officers that they aren't above the law."'
First published on 2010-03-31; last updated on 2010-04-01.
The Home Office sent a letter to MPs sitting on the Committee
and Security Bill 2009-10 describing five case studies allegedly
supporting their arguments for retention of the DNA profiles of
innocents. It turns out that two of these five cases studies are one
and the same! From the description of this letter by Shadow Home Affairs
stage, the error should have been easily spotted by anyone reading
the details of the letter and not just stopping at the number of cases
included. After the irrelevant Jill Dando Institute research based on
days of data
by the Institute's 'you might as well just stick your finger in the
air and think of a number' director, the
that 'does not provide evidence to inform the length of any general
DNA retention period', the many cases mentioned where retention of the
difference, comes the duplicated case in a document describing
James Brokenshire: The hon. Gentleman makes a fair point about the interrelationship between other evidence, other more general policing issues and the data that might be available. [Interruption.] Before I give way to the Minister and my right hon. and learned Friend the Member for Sleaford and North Hykeham, I should like to refer to case study 5.
In 2006 a Dutch male was arrested on suspicion of robbery. This was investigated and his DNA was taken before he was released without charge. In 2008 that same male was further arrested for rape after being identified by the victim. The DNA crime scene samples taken at the time were found to match the suspect’s DNA profile, already held on the national DNA database, and he was later tried and convicted in court. Abdirahman Ali Gudaal was Dutch. He was arrested for robbery in 2006. He was said to have raped somebody in 2008. I therefore submit that case studies 1 and 5 are one and the same case. Could the Minister look into that? It seems strange that two Dutch people were arrested for robbery in 2006, committed a rape in 2008 and were subsequently convicted.
James Brokenshire: [...] Now that we have had our lunch break, is the right hon. Gentleman able to respond to a point that I raised in relation to the case studies that he cited in the letter that was handed to the Committee? He did not seem to disagree with my comment that case study 5 and case study 1 might be one and the same case. That is quite important because obviously the letter has been put before the Committee. The facts in case study 5 are quite limited, and I made my assumption based on the limited facts. I do not know whether the Minister has sought clarification over the lunch break. Perhaps he can respond on that point.
Mr. Hanson: I will happily cover that point now, in an intervention. Having checked the matter, I can say that case study 1 and case study 5 are the same case. One reason why there is some difficulty is that we have been seeking to ensure that we get victim approval when victims’ names are put into the public domain. Every name that I have mentioned in my contributions has had the victim’s approval of it being put into the public domain. There was some confusion over those cases. I will clarify the matter if necessary by letter for the Committee, but we have many more cases that we have permission to use, and I will do so during the debate.
Deliberate misleading or incompetence? The Home Office must be pretty desperate.
A correspondent, who also went through the process of complaining to the Independent Police Complaint Commission (IPCC), suggested on several occasions that I request my IPCC case file by sending a Data Protection Act subject access request. I followed his advice and I sent a request on 2009-11-04. The act specifies that the organisation must respond within forty days, however the IPCC has only two staff dealing with all the Freedom of Information and Data Protection requests they receive, and obviously this means requests can end up delayed. The IPCC press office contact page lists six phone numbers indicating that the budget to manage information they want to make public must be much bigger than that for the department providing information that people do want and ask for. (Heather Brooke found that police 'forces spend nearly ten times more on PR (what police want us to know) than on FOI (what we want to know).')
The request was completed today. I received two bundles of A4 pages each stapled in the top left corner : one approximately 21 mm thick of 'documents received by the IPCC from the Metropolitan Police Service', and the other, 16 mm thick, composed of IPCC correspondence and some more MPS documents. The cover letters explain that these are all the documents that 'you are entitled to receive under the provisions of the Data Protection Act contained in your IPCC case'. 'The documents have been redacted under section 7(4)(a) of the Data Protection Act' and documents containing legal advice are not included as 'these documents are exempt from disclosure under schedule 7 paragraph 10 of the Data Protection Act 1988.' The amount of redactions means someone must have spent days blacking out the documents. Some of the redactions are over-zealous. For instance some of the questions the officer who conducted the search of our flat asked my wife are redacted in his witness statement but included in the copy of his scene notes. There are no page completely blacked out, but there are pages obviously missing, possibly because they've been entirely redacted.
Many documents I had not seen. Some make for very interesting reading, especially the statements my solicitor tried to obtain in vain during our civil action against the police. Here are a couple of highlights spotted in the little time I've spent so far browsing through.
Below are a few extracts from the statement of a DS. This transcript is 49-long with page 1 and 49 missing.
[...] get a phone call to say man coming in for terrorism, suspected terrorism. [...] He's been arrested for public nuisance, I said 'he should be arrested for terrorism then'. I was told that the Superintendent doesn't want terrorism on the custody record in case it frightens people. Go in there, see the fella standing at the counter speaking to the PS, officers are giving the facts for public nuisance, custody officer accepts the facts, my remit was is this man a terrorist. It was said to me then that Mr Mery should have his clothing taken, white suit and hands bagged, all the things, I said 'he needs to be arrested for terrorism then'. [...]
Uniformed officers who brought the prisoner back, they told me that this was the case and he was a suspected terrorist and they were using public nuisance to bring him in. [...]
I was told by uniformed officers who briefed me that that's what we should be doing [seizing clothing] and I said 'well let's arrest him for terrorism, take him to Paddington Green and call out SO13 [the Anti-Terrorist Branch]'. They said the Superintendent doesn't want that, so I said, I made the decision, 'well we're not seizing his clothing, [some words redacted] If they had been interested in him, they would then have said, 'let's go'. Soon he was brought in, done that, placed in a cell. [Rest of paragraph redacted]
That's the first time I realise how close I have been to have been bundled up to Paddington Green police station. Another statement below, worth retyping in full, shows that during the IPCC supervised enquiry, the Met fully realised their errors. Unfortunately the investigation report did not acknowledge these findings, necessitating two more years of fighting before eventually getting a formal apology.
Statement of [redacted]
Police Officer [redacted]
Date: [missing, but most likely end of 2006 during investigation by the the Met's Directorate of Professional Standards]
I have been asked to review the custody record and CRIS reports relating to the arrest of David Mery on the 28th of July 2005.
Opened by PS T.
The reason for arrest is given as 'Causing a public nuisance. Caused a major evacuation of three mainline railway stations after his deliberate actions caused police to believe he had explosives'. This is not borne out by any of the evidence presented by the officers. There are grounds for stop and search but I can see nothing to substantiate the deliberate actions, the closure of the underground network and evacuation were the decision of the police and not caused by the suspect.
The legal database quotes the offence as: -
A person is guilty of the offence if he/she
(a) Does an act not warranted by law, or
(b) omits to discharge a legal duty,
The reason for detention is given as to obtain evidence by questioning.
Item 2 on the front page indicates that Mr Mery made no comment when the facts of arrest were explained, however the first entry in the custody log of events at 21:08 is a comment made by Mr Mery. This has been correctly endorsed and signed.
The second entry is timed 21:53 stating that Mr Mery arrives in custody handcuffed, there is no explanation for the time gap between these two entries but it may be that all of the normal booking in procedures were completed before this entry was made.
A request for someone to be informed of his arrest is recorded at 21:53 and given at 22:09.
At 23:00 Inspector L authorises a Section 18 PACE search of the home address, I cannot read the handwriting giving the grounds or nature of the evidence sought. S.18 PACE gives police the power to search for evidence relating to that offence or a similar offence, as the suspect had aroused suspicion by his dress and demeanour it is hard to understand what further evidence could be obtained from a search. Also the only reason recorded for his detention was to interview.
The first review of detention was due at 02:57 but was not carried out until 04:20 with no explanation as to why it was delayed, but as interview started at 03:06 this could be the reason.
At 04:27 Mr Mery was released on bail to return on the 31st August 2005 at 09:00, the reason given on the circumstances page was 'Forensic checks on his computers and CCTV needs to be viewed'
There is no mention on the custody record of what happened on the 31st August 2005 when Mr Mery was due to return to answer his bail. The custody record should have been updated with details of a rebail or disposal.
The activity log does not show anything for the day.
[3 paragraphs redacted] There is no record that any of Mr Mery's property has been restored to him. It would appear from the nature of the items marked that they were restored to Mr Mery on his release on the 29th July 2005 [they were restored on 2005-10-13].
[3 paragraphs redacted] the OIC [officer in charge] must complete form 60C bail cancellation notice and send it to the Mr Mery. OIC should also inform the custody officer of the decision so that they can close the record. According to the custody record activity log none of these things happened until the 5th of October 2005 when the custody record was opened and the bail record cancelled. On the 13th October 2005 the form 60C was printed along with the property sheets 57G and H.
[1 line redacted]
The circumstances of finding states that the items were "Left at above location following call to suspect package and susp person" The above location being Southwark LT [London Tube] station. This is completely at odds with the evidence provided by the arresting officer who states that an officer removed the rucksack from Mr Mery and then moved it away from him in the underground station.
CRIS [Crime Report Information System] REPORT 3029675/05
The allegation is recorded as 'Bomb Hoax' this is incorrect and should have been corrected. A bomb hoax requires the dispatch or placing of an article or communication of false information, none of these things happened. Mr Mery was arrested for causing a public nuisance, not causing a bomb hoax.
The crime is screened in as a suspect has been arrested but then the report is "No crimed" the next day with no reason given, the no crime is confirmed on the 5th of August 2005.
The method shown on the classification page is "The suspect evaded officers at an underground station, causing a major terrorist incident alert. Thus causing a public nuisance" this is misleading and not borne out by any of the evidence provided. [Entering a closed space, such as a tube station, with lots of police officers around, but not looking at them is 'evading officers'!]
DS B records the results of the S.18 PACE search and the interview of Mr Mery following a briefing from DS W. He notes that there was no evidence visible of causing a public nuisance but the computers will have to be examined. He also records the fact that Mr Mery was bailed to 31st August 2005 so that the computers and CCTV could be examined.
Although DS W was assigned the case at the time of arrest on the 28th July 2005 the CRIS was not allocated to him until 28th September 2005 and he did not acknowledged this until the 4th of October 2005.
[1 paragraph redacted]
In light of this and the account given in the interview he believes that Mr Mery's action do not amount to an offence, he considers this suitable for no further action [NFA]. This has been discussed with DI C.
There's no separate entry from DI C confirming the NFA authorisation.
There's no mention of any forensic analysis of the various items of computer equipment that were seized from Mr Mery nor of the viewing or seizure of the CCTV evidence from Southwark Underground station, both of which were given as the reason for Mr Mery bail to return.
There's no mention of what happened on the 31st of August when Mr Mery returned on bail.
On the 14th of October DS W makes an entry in the DETS [‘Details of the Investigation” section of a crime report] page to show that Mr Mery has attended with his legal rep and has had his property restored. There is no record of the property being restored or signed for on the custody record property receipts.
[1 line redacted]
Observations conducted in the CCTV control room were very important in forming the suspicion that led to the stop and search and then arrest of Mr Mery.
[2 paragraphs redacted]
In my opinion Mr Mery's actions at the underground station were reasonable grounds for the stop and search of him and his bag. The fact that officers at the scene made the decision to elevate this to a full evacuation and closure of the rail network in order to have the bag examined by explosive officers was one for them and should have been recorded elsewhere.
I do not feel that the court would accept that to walk into the tube station as a dark skinned male wearing a baseball cap and a heavy jacket carrying a rucksack and stand on the platform would constitute an unlawful act. The reaction of the police officers caused the disruption to the public and is understandable in the circumstances; to make it the fault of Mr Mery is not.
Given that the reason for detention was to obtain evidence by interview this should have been done as soon as possible so that Mr Mery could account for his actions that were observed.
There is no mention as to what evidence it was hoped would be obtained from the forensic analysis of the various items of computer equipment seized from Mr Mery and his home address, however it is at odds with the fact that it appears that a USB memory stick and an I-Pod were restored to him on his release without being submitted for forensic examination, both being large digital memory storage devices.
None of the property on the custody record has been signed for when restored either at bail stage or at the finalisation of the case.
[1 line redacted]
The CRIS report should not have been no crimed as there was a suspect on bail and further lines of enquiry had been identified.
[2 paragraphs redacted] before Mr Mery was due to return to answer his bail.
[2 paragraphs redacted]. Having decided to NFA the matter Mr Mery should have been informed of his bail being cancelled [several words redacted] NFA letter to inform him of the reason and to arrange for the restoration of his property. [Rest of this paragraph redacted]
The custody record should have been opened on the 31st of August 2005 to record what happened and whether a new bail date was set or the case the case is NFA'd. From Mr Mery's statement he was told on the 31st August 2005 that the matter was NFA's but no paperwork was served nor was the custody record updated.
[emphasis added; name of the officers anonymised; some obvious typos corrected when retyping this statement, some possibly added]
Other threads apparent in these documents include the news that, though the Met claims never to have obtained the CCTV footage, the British Transport Police did request it the next day (I never received a substantive answer to the subject access request I sent them on 2005-08-31); how my normal usual behaviour, termed 'eccentric' by one officer, is what many couldn't accept as normal and hence had to be suspicious; how some of the police actions and decisions appear to be media-driven... Topics to be explored further on the blog.
The IPCC still has to inform me on its retention policy, i.e., when my case file will eventually be deleted.
On a cold evening last week I went to the London Action Resource Centre to be interviewed by Chickpea for Dissident Island Radio. We talked for an hour about my arrest, how to get off the national DNA database, stop and search and other aspects of policing in London. The hour went by very fast and we only covered a few of Chickpea's very good questions and part of what I had prepared. This interview has been edited down to about 20 minutes and will be streamed tonight as part of the 52nd live edition of the programme. Chickpea was also going to interview Pennie Quinton, the film maker who was stopped and searched, under Section 44 of the Terrorism Act 2000, in 2003 close to the Defence Systems and Equipment International Exhibition and eventually won a European Court of Human Rights judgment (though the Home Office has indicated it will likely appeal). Here's what's scheduled for tonight:
On the show this week we have with us a motley crew of dissidents. Two people who've fought 'The Man' and won respect for their rights talk to us about stop and search and DNA retention as well as the broader assault on our civil and human rights.
Our Northern correspondent has swung into action and grabbed us some words from SAEAB about all things animal rights in Bradford including their upcoming days of action. We'll also have words about the Stop the Traffic campaign and their plans for the UK's biggest traffic jam and how you can help.
Note that there are more DNA profiles on the database than was mentioned in the live programme. From the NDNAD annual report: 'At 31 March 2009, 5,617,604 subject profiles were retained on the NDNAD [...] it was estimated that approximately 13.5% of subject profiles held on the NDNAD were replicates. The number of different individuals represented on the NDNAD [...] was approximately 4,859,934 (for all UK forces).'
One issue we didn't have the time go into much detail is the racial bias of the NDNAD. As it happens, Black Mental Health has just launched a petition to raise awareness of this very issue on the Number 10 website.
First published on 2010-02-05; last updated on 2010-02-08.
If you are an innocent who happened to have been arrested in England or Wales, you're unlikely to be able to go to the United States of America, ever again. Retention of DNA is not the only long term effect of an arrest. Having been arrested also disqualifies one from the Visa Waiver Program (VWP). The alternative is attempting to obtain a visa to enter the USA, a long and costly process with an uncertain outcome.
Not being able to travel to the USA may, of course, affect job prospects. There's very little chance of redress about this consequence of an arrest as responsibility is shared by the English police force that made the arrest, Parliament that passed the laws giving police the powers to do the arrest (if the arrest was lawful), and the U.S. Department of State who is responsible for visa rules for travel to the USA.
The practicalities of attempting to travel to the USA from the UK is described on the website of the London Embassy in the Additional Administrative Processing : Criminal Convictions page of its Nonimmigrant Visas section:
Under United States visa law, people who have been arrested at anytime are required to declare the arrest when applying for a visa. If the arrest resulted in a conviction, the individual may be permanently ineligible to receive a visa. In order to travel, a waiver of the permanent ineligibility is required. The Rehabilitation of Offenders Act does not apply to United States visa law. Therefore, even travelers with a spent conviction are required to declare the arrest and/or conviction. [emphasis added]
The introductory sentence in the paragraph above, the first paragraph on the page, clearly shows the need for arrestees to apply for a visa. An initial essential step, for those willing to start this quest, is to obtain and 'furnish a police certificate from the Association of Chief Police Officers (ACPO) issued within 6 months of the date of the visa interview.' Until a few years ago, one was required to get a copy of his or her Police National Computer (PNC) record by submitting a data subject access request to the National Identification Service at New Scotland Yard. In 2008, this changed and one must now obtain a certificate from the ACPO Records Office. You can read more about this change in the post ACPO police certificates coming out of nowhere required for those going somewhere.
Another requirement, before being able to schedule an appointment with a U.S. consular officer, is to fill in the Nonimmigrant Visa Application form (DS156). Box 38 on this form is upfront about the limited chance of getting a visa:
38. IMPORTANT: ALL APPLICANTS MUST READ AND CHECK THE APPROPRIATE BOX FOR EACH ITEM.
A visa may not be issued to persons who are within specific categories defined by law as inadmissible to the United States (except when a waiver is obtained in advance). Is any of the following applicable to you?
- Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action? Have you ever unlawfully distributed or sold a controlled substance(drug), or been a prostitute or procurer for prostitutes?
- Have you ever been refused admission to the U.S., or been the subject of a deportation hearing or sought to obtain or assist others to obtain a visa, entry into the U.S., or any other U.S. immigration benefit by fraud or willful misrepresentation or other unlawful means? Have you attended a U.S. public elementary school on student (F) status or a public secondary school after November 30, 1996 without reimbursing the school?
- Do you seek to enter the United States to engage in export control violations, subversive or terrorist activities, or any other unlawful purpose? Are you a member or representative of a terrorist organization as currently designated by the U.S. Secretary of State? Have you ever participated in persecutions directed by the Nazi government of Germany; or have you ever participated in genocide?
- Have you ever violated the terms of a U.S. visa, or been unlawfully present in, or deported from, the United States?
- Have you ever withheld custody of a U.S. citizen child outside the United States from a person granted legal custody by a U.S. court, voted in the United States in violation of any law or regulation, or renounced U.S. citizenship for the purpose of avoiding taxation?
- Have you ever been afflicted with a communicable disease of public health significance or a dangerous physical or mental disorder, or ever been a drug abuser or addict?
Yes No While a YES answer does not automatically signify ineligibility for a visa, if you answered YES you may be required to personally appear before a consular officer.
The Nonimmigrant Visas section page quoted earlier clarifies that 'may be required' should be read 'you are required':
Applying for the visa
You are required to schedule an appointment for an interview with a U.S. Consular Officer.
For those innocents unfortunate enough not only to have been arrested, but also to be male aged 16 to 45, the next hurdle is mastering their powers of recollection as they need to fill in the Supplemental Nonimmigrant Visa Application Form DS-157. This form includes questions such as 'List All Countries You have Entered in the Last Ten Years (Give the Year of Each Visit)', 'List all Professional, Social and Charitable Organizations to Which You Belong (Belonged) or Contribute (Contributed) or with Which You Work (Have Worked)' and 'List all educational institutions you attend or have attended. Include vocational institutions but not elementary schools.'
Once the police certificate is obtained (and paid for), all the forms completed, and a mugshot is in hand, it's time to pay the visa application fee and schedule an appointment. The timer for how long it takes to go through the whole process – whatever the outcome – starts at this stage. Processing of the visa application when box 38 is ticked is much longer. Detailed information about processing time is no longer published, but here's an excerpt from a page from the US Embassy website as it was in 2006:
Routine visa applications take approximately 5 workdays to process from the date of the visa interview. [...] Applicants who are advised at the visa interview that their application requires additional administrative processing should allow at least 60 days for this stage of the application to be completed. Applicants who tick yes to box 38 can expect to wait a minimum of 14 to 16 weeks before being advised of the outcome of their application. [emphasis added]
Current information on visa waiting time doesn't include any specific information for those who ticked yes in box 38, but has this vaguer note:
Typical Wait Time (Workdays**) for a Nonimmigrant Visa To Be Processed****: 4 Days [...]
****IMPORTANT NOTE: Processing wait time DOES NOT include the time required for administrative processing. These procedures require additional time. Most administrative processing is resolved within 60 days of application. When administrative processing is required, the timing will vary based on individual circumstances of each case. Therefore, before making inquiries about status of administrative processing, applicants or their representatives will need to wait at least 90 days from the date of interview or submission of supplemental documents, whichever is later. Processing wait time also does not include the time required to return the passport to applicants, by either courier services or the local mail system.
Fourteen weeks being 98 days, arrestees applying for a visa still likely have to wait 14 to 16 weeks. There's no guarantee that after all this time, a visa will be issued. The wording on the embassy's website strongly suggests that if you've been arrested, while you're welcome to apply for a visa, you're unlikely to be eligible.
Arrestees not only have to spend time but money as well, for the police certificate, for the non returnable fee to apply for the visa, the additional issuance fee in the eventuality of the visa being granted and for calling the US embassy (the only published phone number is a premium number). For someone who has been arrested the visa application process is complex and lengthy with at best a very uncertain outcome. An innocent who has never arrested benefits from the Visa Waiver Program while someone arrested but not convicted or for whom there was no further action has to answer yes to box 38 and face not being able to travel to the USA.
For those who went on the four or five months US visa quest and are among the lucky few found not to be ineligible, this is still not a guarantee of being admitted in the USA:
A visa is issued by a U.S. Embassy or Consulate. A visa entitles the holder to travel to the United States and apply for admission; it does not guarantee entry.
An immigration inspector at the port of entry determines the visa holder's eligibility for admission into the United States. [emphasis in the original]
While visas are issued by the US Embassies, admission into the US is administered by the Customs and Border Protection (CBP):
Also, If you are an alien, CBP Officers may decide that you should not be permitted to enter the United States. There are many reasons why this might happen (see INA § 212(a)). You will either be placed in detention, or temporarily held until return flight arrangements can be made. If you have a visa, it may be cancelled. [emphasis added]
For an innocent who's been arrested, following the legit option guarantees five months of nightmares, with a likelihood of not being allowed in the USA anyway. This has been an incentive for those who've been arrested – whether innocent or convicted – to forget their arrest, travel on the Visa Waiver Program, and lie when asked about any prior arrest. As CBP officers do not have access to the UK Police National Computer, many have travelled illegally without problem. However those tempted by this illegal route should bear in mind that it is possible that the USA compiles a database of public mentions of arrests and convictions from the press and/or court proceedings. It has also been reported for immigration officers to Google the name of travellers at the border, finding incriminating information against them and deciding to refuse them entry to the USA (read the stories of Andrew Feldmar and Hossein Derakshan for instance).
Home Office Minister Alan Campbell sees three distinct categories of people: those who are guilty, those who are convicted and those who are arrested but not convicted. The latter category is victim of extra-judicial punishments – e.g., DNA retention and disqualification from the VWP – affecting their privacy, and their job and travel prospects. The Home Office and U.S. Department of State's rejection of the presumption of innocence is making the cost of an arrest, lawful or not, very high for innocent people.
First published on 2010-01-29; last updated on 2014-08-25 to fix some broken links.
The Home Office ran a review on the Police and Criminal Evidence Act (PACE) from 2008-10-13 til 2008-11-28. One of its proposals is about police use of short term holding facilities (STHF) located in shopping centres or town centres to detain suspects in order to take their fingerprints, photograph and DNA samples. A summary of responses to this specific proposal would be useful in the context of the current parliamentary debates and committees' investigations into the measures of the Crime and Security bill.
For some unstated reason, the responses to this consultation appear to be extremely difficult to summarise! Here's the 'What's new' section of the PACE Review consultation progress page as it was first created in July 2009:
10 July 2009
The government’s proposals in response to the Review of PACE (new window) were subject to a 3 month public consultation at the end of 2008. The summary of responses and the table of respondents summarised comments will be published here before the end of August 2009.
In September 2009, I queried when the Home Office was realistically expecting to publish these summaries. The Policing Powers and Protection Unit (PPPU) of the Home Office responded that '[t]he draft document is currently being considered by the PACE Review Board and we will look to publish as soon as possible.' The website was then silently updated:
10 July 2009
The government’s proposals in response to the Review of PACE (new window) were subject to a 3 month public consultation at the end of 2008. The summary of responses and the table of respondents summarised comments will be published here before the end of autumn.
Earlier this month (January 2010), I queried the Home Office, again, about the publication of these summaries and was informed that '[t]he Summary of responses is currently with Ministers and PACE Strategy Board Members. As soon as we have received feedback on the document we will make it available on the Home Office website. In the mean time I will ensure that the website is updated to reflect the delay.' Last week, the page was silently updated:
10 July 2009
The government’s proposals in response to the Review of PACE (new window) were subject to a 3 month public consultation at the end of 2008. The summary of responses and the table of respondents summarised comments will be published here in early 2010.
A Freedom of Information response revealed that 187 organisations and 18 individuals responsed to this PACE Review consultation. Of the twelve Home Office consultations for which I received data, it's only in seven position for the total number of respondents, so nothing that should overwhelm the Home Office. With more than twice the total number of respondents, it took just three months to publish the summaries of responses for the Keeping the right people on the DNA database consultation (which closed eight months later).
It is awfully nice of the Home Office to update its website every time I contact them about this consultation. It's curious that they're so forgetful about updating the date of the what's new section. It would, however, be even more helpful for the summary of responses to emerge from the reviews by the PACE Review Board, the PACE Strategy Board, the Ministers, etc. and get published for all to read.
Update: the Home Office has eventually published a Summary of responses to the public consultation on the Review of the Police and Criminal Evidence Act 1984 (PDF). The document is dated March 2010. Its Annex A contains six pages of proposed legislative changes. Among these, a draft guidance about the Short Term Holding Facilities will be circulated in Spring 2010; 'Proposals to arrest [and obviously take a DNA sample] without warrant, detention, transportation and bail between home jurisdictions' are 'Awaiting a suitable legislative vehicle'. The PACE Review consultation progress page has not yet been updated and still displays its July 2009 news.
First published on 2010-01-25; last updated on 2010-03-05.
On one of his blogs, professional photographer Peter Marshall neatly summed up the experience of too many when taking photographs in public places in the UK with the call to arms:
If you’ve got a camera, use it. Otherwise soon you won’t be able to.
This Saturday, the campaign I'm a photographer, not a terrorist! (phnat) is calling everyone who values visual imagery, not just photographers, to a mass gathering at noon in Trafalgar Square in defence of street photography. (A few related posts: Stop'n'search gets touchy-feely, Hostile reconnaissance - no conviction yet but trials coming, Snap a copper and get ten years in the slammer - (mis)interpretations.)
Also on Saturday, London NoBorders is having two demonstrations on the theme of Life is too short to be controlled! The first one, at 2pm St. Pancras International, to protest against the e-Borders controls put up by the UK Border Agency. The second, at 4.30pm in Piccadilly Circus, is against the constant remote CCTV observation by security and police. (Some related posts: A web of indifferent watching devices, Missing CCTV footage - again, Sean Rigg - no justice, no peace, no CCTV footage.)
Update: Look at some pictures I took at the phnat and NoBorders demonstrations. Read Peter Marshall's excellent photo reports on the phnat and NoBorders protests. Read the NoBorders' report on London Indymedia and see the press clippings for the phnat gathering on Marc Vallee's blog.
First published on 2010-01-21; last updated on 2010-01-27.
The Home Affairs Committee was having another evidence session about the National DNA Database (NDNAD). This time, it was short as the committee had only two witnesses and they talked about their personal experience, so there was none of that litany of errors and misunderstandings that riddled the previous session.
Greg Hands, a Tory MP, had his DNA taken when his 80-year-old uncle died two months after he had been found at his home with a 14 inches barbecue skewer in his neck. Mr Hands was not close to his uncle and had never visited his home. He also had a very strong alibi as he was in Parliament when it happened. He was not arrested and doesn't recollect whether he volunteered his DNA sample or just didn't refuse a request. It's not clear why it was necessary for the police to take his DNA sample. More surprising is that according to Greg Hands, as far as he's aware, the police did not have a DNA sample from the crime scene. Even though the police didn't have a crime scene DNA profile to compare the DNA profiles of the individuals sampled in connection with this death, they travelled all over England to get DNA samples from all the relatives of Mr Hands' uncle, including that of old relatives who'd been incapable of using a skewer in such a way. At the inquest, which returned an open verdict, the police admitted it could have been a freak accident. Mr Hands asked the chief constable of the West Midlands Police for his DNA profile to be deleted and his DNA sample to be destroyed on several occasions, but in two years didn't get satisfaction. He had more success putting down a Parliamentary Question, a process only accessible to MPs. He was told by the Home Office that his DNA profile had been removed, but he still has not had any confirmation from the police and won't be convinced until he gets confirmation of when it happened.
Jonathan Leighton, a computer science student in Oxford, had his DNA taken when he was arrested on suspicion of littering. At a protest against the expansion of a shopping centre he tried help an activist who had been in a tree for ten days by throwing him a bottle of water, but missed. When the bottle fell to the ground, a police officer rushed to arrest him. With the help of a solicitor, it took him close to a year to reach a settlement with Thames Valley Police (TVP) and get his DNA profile removed and DNA sample destroyed.
These cases are further evidence of the effort and expense the police go through to collect DNA of individuals, at a time when funding for what makes a provable difference in crime detection, getting more DNA profiles of crime scenes, may be cut. The police appears, at least in some cases, to be driven more by its willingness to add DNA profiles of individuals than by any other operational matter. This has been denied by the police, however a retired police officer wrote in a response to a Human Genetics Commission consultation that 'It is now the norm to arrest offenders for everything if there is a power to do so ... It is apparently understood by serving police officers that one of the reasons, if not the reason, for the change in practice is so that the DNA of the offender can be obtained: samples can be obtained after arrest but not if there is a report for summons. It matters not, of course, whether the arrest leads to no action, a caution or a charge, because the DNA is kept on the database anyway.'
The experience of these two witnesses was interesting, but hopefully the committee members realise that these two cases are exceptional as both witness did manage to reclaim their DNA. There was little more than an average of one DNA profile deleted a day in 2009; it was much less in the five preceding years.
From a brief chat after the evidence session, Mr Leighton is unsure whether his Police National Computer (PNC) record has been deleted as well. PNC records should be deleted at the same time as DNA profiles, fingerprints and palm prints happen are deleted, and DNA samples destroyed, under the current 'exceptional case procedure'. The government and the police are apparently keen to retain PNC records even when DNA profiles are deleted, hence the Crime and Security bill being silent about PNC records. Andy Handley, a photographer who also reached a settlement with TVP, after being unlawfully arrested for taking a picture from behind a police cordon, did 'receive notification from TVP that all records have been deleted including on the PNC'. The deletion of his DNA profile and fingerprints has been widely reported.
In related news, the Crime and Security bill had its second reading on Monday. Home Secretary Alan Johnson introduced the bill to a mostly empty chamber (as is common, MPs came in just at the end when it was time to vote). Most of the interventions were in opposition to the bill solely because of its clauses about the NDNAD. Ex-Home Office minister Tony McNulty MP and Tory David TC Davies MP were lone voices in support the Home Office current proposals; Labour Keith Vaz MP, Diane Abbott MP and Neil Gerrard MP all spoke out against the DNA clauses. The Conservatives were supportive of adopting a legislation similar to that of Scotland, and the Lib Dems favoured getting all innocents off the NDNAD. David Davis MP, in his interventions, mentioned several times the excellent submission to the Home Affairs Committee by GeneWatch UK and Unreliable evidence? Time to open up DNA databases, an article in the New Scientist questioning how many random probability matches really happen. The bill was 'read a second time' with 272 Ayes and 197 Noes.
If you're innocent and your DNA profile is on the NDNAD, find help to get off the NDNAD at Reclaim Your DNA. If you succeed, request a detailed list of what has been deleted and destroyed. You can check if your DNA sample, profile, fingerprints, palm prints, photographs, PNC record, etc. has been retained by sending a data subject access (Data Protection Act) to the police force that arrested you asking for any personal information you believe they may still have retained.
GeneWatch UK has published two excellent documents which should be on on the reading list of everyone with an interest in the government's plans for the National DNA Database. Below are the recommendations concluding the 5-page GeneWatch UK Parliamentary Briefing on the Crime and Security Bill (doc). This document is timely as the second reading of the bill has been tabled for this coming Monday.
The Human Genetics Commission (HGC) has recommended that the Government establishes a Royal Commission to “give focus to, and to learn from, the public debate, and to ensure that its outcomes will be taken forward and reflected in future framework legislation”. The HGC, Nuffield Council on Bioethics and others have recommended that the DNA Database be put on a statutory basis. However, the need to ensure that innocent people’s DNA profiles in order to ensure that the Database is compliant with the judgment of the European Court of Human Rights is also urgent. GeneWatch UK therefore recommends that:
- In the Crime and Security Bill 2009/10:
- The destruction of all DNA samples within 6 months is adopted;
- The provisions for retention of innocent people’s DNA are amended to implement automatic immediate deletion of most DNA profiles unconvicted persons, with an exception allowing temporary retention of DNA profiles and fingerprints for some persons arrested for serious or violent sexual offences, based on Scotland’s approach;
- The Bill is amended to ensure that Police National Computer (PNC) records are deleted at the same time as DNA profiles and fingerprints;
- Deletion of all records is applied retrospectively to all innocent persons on the relevant databases;
- The provisions relating to the expansion of DNA collection are deleted, pending review (see below).
- A Royal Commission is established with a view to putting the National DNA Database on a statutory basis. It considers:
- DNA collection, including whether this should take place on arrest or charge, or for a narrower range of offences; whether collection should apply retrospectively and/or to some persons convicted overseas; and whether there should be special provisions for children.
- Uses and restrictions on uses.
- Retention guidelines for convicted persons (including persons given cautions, reprimands and final warnings).
- Governance, including a process for appeal against retention of data.
The Commission’s proposals should be followed by a public consultation before further legislation is drafted.
The parliamentary briefing refers to the 26-page GeneWatch UK submission to Home Affairs Committee: the National DNA Database (doc). If you read Sorry Affairs Committee, my notes of the committee's last evidence session, you are aware that some elements of the evidence given were erroneous and that the committee members showed a poor understanding of the workings of the NDNAD and knowledge of the Crime and Security Bill. GeneWatch's submission is a clear and comprehensive document that addresses all these issues. Another evidence session is scheduled for this Tuesday. Below are excerpts to give you a taster:
[...] GeneWatch has consistently argued that new legislation governing the DNA Database could be adopted which significantly improves protection for human rights, is compliant with the European Court of Human Rights’ judgment on this issue, regains much of the loss of public trust in policing, and does not have an adverse impact on crime detection or prevention. [...]
Number of solved crimes
Chief Constable Sims, of the Association of Chief Police Officers (ACPO), stated in evidence to you that 33,000 crimes (0.67% of recorded crimes) had been solved last year “solely or largely by the DNA database”. This claim was reiterated by the minister. This claim is incorrect: it is a significant overestimate of the number of solved crimes. [...]
Thus we can estimate that, in 2008/09, 2006 direct DNA detections and 1660 indirect detections might have been lost or delayed if a DNA database of individuals’ profiles did not exist at all. Using the Home Office figure cited above, about half of these detections (1883) could be expected to lead to convictions. This is 0.033% of recorded crimes (Table 1), more than an order of magnitude lower than the figure provided to you by ACPO. Moreover, a high proportion of these crimes would be solved later rather than not solved at all because, provided the crime scene DNA profile is still stored, the same individual’s profile could be matched later if they are arrested or charged on suspicion of committing another future crime. It should be noted that the vast majority of these will be volume crimes such as burglary and theft (discussed further below).
Solved crimes due to retaining innocent people’s DNA profiles
[...] We can therefore estimate that somewhere between 40 and 200 convictions may have resulted from the retention of DNA profiles from innocent people in 2008/09. It should be stressed that this is very much an estimate, due to uncertainty in the figures provided by the Home Office and gaps in information. Most of these convictions would relate to volume crimes (only 1% of DNA detections relate to rapes and 0.4% to murder/manslaughter, see below) and most detections would be delayed rather than lost because, provided the crime scene DNA profile is stored, the DNA match will occur if the individual is arrested or charged with another offence in the future. This figure includes both direct and indirect detections. [...]
Impact of changes in legislation on DNA detections
[...] Thus, the available data allows us to conclude that neither the Criminal Justice and Police Act 2001, nor the Criminal Justice Act 2003 have led to a noticeable increase in the number of crimes detected using DNA, despite a massive increase in the number of individuals’ DNA profiles that have been collected and retained. In contrast, the policy decision to collect DNA from scenes of volume crimes, such as burglaries and thefts, has been successful. This is because the number of crimes detected is driven primarily by the number of crime scene DNA profiles loaded, not the number of individuals’ profiles loaded or retained. [...]
Role in volume crimes and breakdown by crime type
Chief Constable Sims stated that 40% of burglaries were solved using DNA. This is incorrect. [...]
Role in murder and rape
In his evidence, Chief Constable Sims claimed that 83 murders and 163 rapes had been solved in 2008/09 by the DNA database. He also stated that the DNA database plays a much more significant part in solving serious crimes than it does in volume crimes. Both claims are incorrect. [...]
GeneWatch UK has been unable to identify any murders that have been solved as a result of the retention of innocent people’s DNA profiles since 2001. We have examined every Parliamentary Question on DNA since 2005, all published reports, and the Government’s evidence to the European Court of Human Rights. A figure of zero solved murders to date as a result of retaining innocent people’s DNA profiles is consistent with our statistical analysis.
In total, five rape cases have been cited by the police as having been solved due to the retention of an innocent person’s DNA profile (these are described further below in the section on Scotland’s legislation). One of these was a cold case which could have been solved more rapidly if old crime scene DNA evidence from serious cases was analysed more promptly (this is also explained below, in the section on cold cases). The other cases may be addressed by a targeted approach, similar to Scotland’s legislation. Our statistical analysis suggests that these are probably the total number of solved rapes that involved the retention of an innocent person’s DNA profile, not a subset of a much larger number of crimes. It seems likely that considerably more crimes involving violence against women could be prevented or solved if the money spent on expanding the DNA database was spent differently (see the section on costs, below).
Misleading claims about the figures for murders and rapes
A long series of misleading claims have been made by ministers, including the Prime Minister, about the number of murders and rapes solved due to retaining innocent people’s DNA profiles on the Database. [...]
Misleading claims about individual cases
The minister cited the Wright case in the Westminster Hall debate held on 9th December 2009, and it was used in cross-examination by Committee members as an example of a case that was solved as a result of the retention of an innocent person’s DNA profile on the DNA Database. This case (and many other high profile cases cited by ministers) did not rely on the retention of an unconvicted person’s DNA. [...]
Home Office Research
The minister stated in evidence that research commissioned by the Home Office had shown that innocent persons whose profiles will be retained on the DNA database for six years had been shown to have a greater risk of offending than the general population. This is not the case. [...]
Link to Police National Computer Records
[...] For innocent persons on the DNA Database, the provisions in the Crime and Security Bill 2009/10 are worse than the current ‘exceptional cases’ removal procedure followed by Chief Constables, because records of arrest on the Police National Computer (PNC) will be retained indefinitely. Retention of these records gives rise to stigma and discrimination and can lead to refusal of a visa or a job. [...]
The minister claimed that the proposals in the Bill would have neither and an adverse nor a positive effect on disproportionality and that the answer to this problem lies elsewhere. This is incorrect. [...]
The decision not to include deletion of Police National Computer (PNC) records at the same time as DNA and fingerprint records in the Crime and Security Bill 2008/09 will have a particularly negative impact on members of black and ethnic minority communities who are disproportionately represented on these databases. It is the PNC record that the police use when they ‘name check’ someone, and which can lead to stigma and discrimination, including refusal of visas or a job. [...]
Priorities and costs
The minister stated that no assessment of cost-effectiveness of expanding the DNA database compared to other approaches had been carried out. This is one of the few claims that is correct. [...]
We noted above that the cold case review of serious crimes has solved many important cases, but that this may be axed due to lack of money.40 In GeneWatch’s review, cold case reviews should be prioritised, since obtaining crime scene DNA profiles from these cases could continue to produce important benefits for victims and their families. This may include the exoneration of innocent persons (who, as explained above do not need to have their DNA profile on a DNA database, but do need the crime scene DNA profile to be available). The more quickly this is done, the better. [...]
False matches and data sharing across the EU
[...] Neither the minister nor the police discussed concerns about the increasing likelihood of false matches between crime scene DNA profiles and stored individuals’ profiles. There is significant concern within the Home Office and amongst forensic scientists about the potential for false matches to occur once sharing of DNA profiles across the EU beings in 2011, as a result of an extension of the Prüm Treaty Europe-wide. [...]
Threshold for arrest
The minister stated that the threshold for arrest is high and that “we are talking about serious offences”. This is not the case. [...]
The minister urged Committee members to consider amending the Bill to allow the inclusion of volunteers on the DNA Database. PACE was in fact amended to allow the inclusion of volunteers on the Database by the Criminal Justice and Police Act 2001 and 36,093 profiles on the database are estimated to have come from volunteers. [...]
Get GeneWatch's submission to the Home Affair Committee and its parliamentary briefing, from its web page on the Crime and Security Bill 2009.
The illegal prison camp at Guantánamo Bay opened on 2002-01-11. Today, eight years later, there are still 198 persons detained. President Obama pledged to close down the camp by 2010-01-22; this deadline will not be met next week.
A demonstration organised by the London Guantánamo Campaign was held today outside the US embassy to commemorate this eigth anniversary, and to call for liberty and justice for prisoners held in Guantánamo Bay and to close down the detention facility there. Read the excellent photo-reportage by Peter Marshall published at Indymedia and, with more pictures, on his My London Diary site. (The picture in this post is from his report).
To find out details of the 779 prisoners held at Guantánamo since the prison opened eight years ago, check out Guantánamo: The Definitive Prisoner List (Updated for 2010), the authoritative work by Andy Worthington.
Some actions you can take: write to your MP and to David Miliband, Foreign Secretary to put more pressure on the Foreign Office to demand the return of Shaker Aamer, a Saudi national who was resident in London, and of Ahmed Belbacha, an Algerian asylum seeker who was living in Bournemouth. Neither man has been charged or tried. Encourage your friends in other European countries to lobby their governments to provide homes to those still detained in Guantánamo.
Innocent detainees, the majority, must be released to safety as soon as possible, and the few who have been charged must have a speedy trial (although it may be difficult for them to receive a fair trial after the years of abuse they have suffered and if 'evidence' obtained from torture is introduced).
First published on 2010-01-11; last updated on 2010-01-12.
On Tuesday, the Home Affairs Committee was taking evidence on the National DNA Database (NDNAD). Unfortunately, this was a sorry show of how politicians work. The committee members showed an poor understanding of the NDNAD and of the Crime and Security bill. This was exemplified even before the start of the proceedings in the one page leaflet present on the chairs in the room where the evidence session was held at Portcullis House:
Today's evidence session–The National DNA Database
This is a one-off evidence session. The purpose of the session is to examine the allegations of over-representation of young black people on the National DNA Database, and in particular to inquire why the police think it necessary to retain samples [sic] from those never charged or subsequently found not guilty of any offence.
The proposed plan is to destroy DNA samples after DNA profiles have been produced and no later than six months after they were taken. The debate is about the retention of DNA profiles of innocents. The DNA samples are the buccal swabs (or sometime hair) taken at arrest containing the full genome of individuals. The DNA profiles are a series of 20 numbers produced from the analysis of DNA patterns (from what is today considered non-coding regions of the genome) of one of the sample. DNA samples are kept in fridges in the forensic labs contracted to do the analysis, while DNA profiles are held in the National DNA Database. For more on DNA profiles see Information retained in the National DNA Database profile records. The prompt destruction of the DNA samples is the one measure that everyone, but the forensic labs (who are paid to maintain the freezers), is happy with.
This confusion between samples and profiles was common, however it is rather inoffensive as one can usually guess what is it that is talked about solely from the context. A much more embarrassing confusion was between the loading of DNA profiles on the NDNAD and the retention of these profiles. A clear understanding of the difference between the two is essential to review the proposed legislation. The government has helped create this confusion by regularly highlighting examples of horrific crimes solved where a criminal was identified when his DNA profile matched, just after it was loaded on the NDNAD, that of an earlier crime scene, and then using that anecdote as a justification for the retention of DNA profiles. When matches happen as the DNA profile is just loaded on the NDNAD, retention is irrelevant.
For instance, Mark Dixie, convicted for the murder of Sally Ann Bowman, was identified when, following his arrest for a pub brawl, his DNA profile was uploaded to the NDNAD and matched that recovered from the murder scene. This case can be used to justify the taking of DNA at arrest, but is irrelevant in a debate about retention of DNA profiles. (Ironically, this case also illustrates that retention of the DNA profile of an innocent, Kevin Reynolds, was not used to eliminate him immediately from the investigation.) During the evidence session, David Winnick MP mentioned the case of Steve Wright several times. What no-one explained, unfortunately, is that this case didn't rely on DNA evidence at all to identify this murderer. Steve Wright was linked to the five Ipswich prostitute murders during the investigation, not by his DNA, but by his car figuring in CCTV footage in proximity to several victims. Liberty has debunked the reporting of some of these cases, including those of Dixie and Wright.
The NDNAD Annual Report 2007-09 explains that:
The average match rates between crime scene and subject profiles when:
- a crime scene profile was loaded to the NDNAD during 2008/09 was 58.7%
- a subject profile was loaded to the NDNAD during 2008/09 was 2.3%.
In most cases, what is useful is the check against unsolved crimes for which DNA has been recovered when the individual's DNA profile is loaded, the further retention of the DNA profile is of little help. In a recent post, Home Office gets DNA database funding priorities wrong, I explored this further.
Leaks or stitch-up? 0.67% or 0.36%?
After a question is answered, Keith Vaz MP, the Committee's chairman turns to the MP whose question is next. Chief Constable Chris Sims, the Association of Chief Police Officers' (ACPO) lead on the NDNAD revealed that he had received the list of questions he was going to be asked, the previous day:
- Chis Sims: Sorry, we're jumping to the last question?
- Keith Vaz: Have you had a list of questions?
- Chis Sims: I have, yes, is that wrong?
- Keith Vaz: It is unusual.
- Chis Sims: Oh, I do apologise.
- Keith Vaz: How did you get them?
- Chis Sims: It's arrived in my email system.
- Keith Vaz: Right, how extraordinary!
- Chis Sims: How extraordinary!
- Keith Vaz: Do you know who sent them to you?
- Chis Sims: I could find that out, I've no doubt.
Keith Vaz MP appeared shocked. Not being familiar with the working of these committees, it is unclear whether his apparent surprise at this unusual revelation was genuine or for the records. Without Chris Sims' blunder, I would not have even known the questions were prepared before the session, especially from the apparent lack of preparation of the MPs on this topic. From their answers, it was obvious that Diane Abbott MP and Isabella Sankey, Policy Director, Liberty who were first to give evidence, had not been given sight of the questions.
Some MPs were trying to find out how useful the NDNAD is and whether money spent on it could be more useful for other policing activities. This lead Chris Sims to state that 33,000 of the 4.9 million crimes the police recorded last year were solved solely or largely because of the DNA database. At Keith Vaz MP's request, committee's staff helpfully calculated that this represented 0.67% of the recorded crimes – negligible was the general reaction. Chris Sims, helped by Gary Pugh, Chair, NDNAD Strategy Board, added that DNA matches play a much more important role in solving certain type crimes. That the percentage was around 40% of for burglaries. These figures have been widely reported, without any questioning, by the press.
Based on the official data on recorded crime (Table 2.04
in England and Wales 2009/09) and on the NDNAD (Tables 2 and 3
of NDNAD Annual
Report 2007-09), it is easy to find that these numbers don't add
up. The mention of 4.9 million recorded crimes shows that Chris Sims
was referring to 2007/08. As data is also available for 2008/09, I've
made the calculations for both years! The second number mentioned,
33,000 crimes solved
as a result of a DNA match, doesn't seem to be
correct [see update below]. The number of matches for that year was slightly higher,
however number of matches are not very interesting in this
context. Matches 'include cases where the individual had an innocent
reason for being at the crime scene and cases where it was not
possible to take the investigation forward'. More interesting is the
number of detections where a DNA match was available. In these cases,
the crimes has been solved. Even then, it does not mean that it is
the DNA match that helped solved the crime. As can be seen from the
tables below, even when you look at the much larger, but not much
relevant, number of matches, it is nowhere near 40%.
Update: An attentive reader pointed out that '[t]he 0.67% is because they have included "indirect" detections (e.g. extra crimes that the suspect confesses to after a DNA detection with the first crime). The main problem with this figure is it is NOT the number of detections made due to their being a database, only a minority of these detections would disappear if there was no database of individuals at all (let alone if you only took innocent people off).' The figure for total DNA-related detection – DNA detections and additional detections – was 33,034 (0.67% of recorded crimes) in 2007/08 and 31,915 (0.68% of recorded crimes) in 2008/09. (The NDNAD Annual report doesn't even bother to break down these numbers by types of crime).
What the committee should have found out by itself when preparing for this evidence session, what Chris Sims should have answered, and what journalists should have written, is that 17,463 crimes (0.37%) of the 4.7 million crimes the police recorded in 2009/09 were solved in which a DNA match was available.
GeneWatch UK had been highlighting this percentage for a long time and found that '[s]ince April 2003 [to 2006], about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA [as a percentage of recorded crimes] has remained constant, at about 0.36%.' As explained in an earlier post in more details, this data shows that retaining DNA profiles of individuals indiscriminately does not help solve crime.
with a DNA
of crimes in which
a DNA match was available
|Other Violent Offences||960,391||1,766||0.18%||849||0.09%|
|Other Sex Offences||40,838||163||0.40%||64||0.16%|
|Theft from Vehicle||432,387||3,544||0.82%||2,201||0.51%|
|Theft of Vehicle||170,016||4,223||2.48%||1,379||0.81%|
|All other recorded crime||1,399,845||3,659||0.26%||1,407||0.10%|
|Total of 12 crime types||4,951,504||37,376||0.75%||17,614||0.36%|
with a DNA
of crimes in which
a DNA match was available
|Other Violent Offences||903,345||1,819||0.20%||861||0.10%|
|Other Sex Offences||38,355||175||0.46%||106||0.28%|
|Theft from Vehicle||396,990||3,484||0.88%||2,036||0.51%|
|Theft of Vehicle||147,470||3,699||2.51%||1,298||0.88%|
|All other recorded crime||1,362,736||3,699||0.27%||1,506||0.11%|
|Total of 12 crime types||4,703,814||36,727||0.78%||17,463||0.37%|
Minister forgets his bill
Could it get any worse? It did when Alan Campbell MP, Parliamentary Under-Secretary of State for Crime Reduction, Home Office got the proposals, in the Crime and Security bill concerning children who have been convicted, wrong. He failed to remember them! None of the committee members came to his rescue so they probably didn't have a copy of the bill, or of the much shorter standard note published by the House of Commons Library (SN/HA/4049 Retention of fingerprints and DNA data). Eventually, several of the minister's minders jumped up from their seats to provide him with this basic and essential information (see picture). If you need to refresh your memory see the preceding post: Home Office still wants your DNA profile, and your PNC record.
Alan Campbell was very clear about his willingness to get rid of the presumption of innocence. He sees three distinct categories of people: those who are guilty, those who are convicted and those who are arrested but not convicted. Having their DNA profile retained for a certain number of years is a price those in this latter group have to pay as 'our research says [...] they are more likely to offend in the next six years'. The minister remains convinced that this bill will be completed before the next general election. He promised that the second reading of the Crime and Security Bill would happen very soon, but wouldn't commit as to whether it'll happen this month or when a date will be set.
Just before the end, there was a rather surreal moment. David TC Davies, Conservative MP (not to be confused with David Davis MP) expressed that his views are 'fairly close to those of the minister on this' (less than a week after his party launched a 'Return my DNA' campaign!). He went on to suggest, 'as a fellow supporter, that the minister would 'allow people to opt-in to get on this database.' He also attempted to get Alan Campbell to agree with him that, 'if there's an issue that young black men are over-represented [on the NDNAD], surely that may be because they're committing more crime?' The minister didn't 'accept this rather simplistic account'. (Home Office research indicates 'people from BME groups are over-represented at each stage of the criminal justice process from initial contact to sentencing. Evidence also suggests that it is not because people from BME groups are more likely to offend.')
Not having much experience of evidence sessions and as the leaflet introducing this session stated this was 'a one-off evidence session', I can only hope that regular sessions are conducted in a more professional manner. You can watch the session now on Parliament TV; uncorrected transcripts will eventually be published on this page. Even though, this was a one-off session, Keith Vaz MP announced that there would be another session next week with Sir Alec Jeffreys and possibly another mystery guest.
Bootnote: If anyone from the Home Affairs Committee is reading this post and didn't get the email I sent to the generic email address of the committee, some answers to the question, by Tom Brake MP, of how many requests for deletion of DNA profiles were received by police forces and how many were acted upon can be found in the article Don't delay: Delete your DNA today I wrote a year ago.
First published on 2010-01-06; last updated on 2010-01-07.
After facing opposition from all quarters to its initial plan to establish new rules to regulate the sampling and retention of DNA via secondary legislation, the Home Office belatedly introduced clauses about DNA in the Crime and Security Bill 2009-10. Opposition to a blank check for the Secretary of State was so predictable that introducing these clauses, among many other unrelated ones, close to a year after the European Court of Human Rights (ECtHR) ruling against the UK appear the result of deliberate delaying tactics. There's no date set yet for when the bill will progress to the second reading stage.
One change introduced in the bill got most of the attention: the proposition to retain DNA profiles of innocents for six years instead of 12. Another figure picked out of thin air with little justification. Missing in the bill is any mention about retention rules of the associated Police National Computer (PNC) records, and it would seem that the Home Office is now keen to hold on to these even when it will relent and delete DNA profiles, fingerprints and palm prints. Here are high level details about what's in store, extracted from the Explanatory notes accompanying the Crime and Security Bill 2009-10:
30. Subsection (6) re-enacts the existing power to take non-intimate [DNA] samples after conviction. But it also now includes a power to take non-intimate samples following a caution, reprimand or warning (which is already possible in the case of fingerprints). [...]
31. The power [to take non-intimate samples after conviction] may be exercised in relation to convictions, cautions, reprimands and warnings occurring before commencement. [...]
46. The retention periods for the various categories of data depend on a number of factors including the age of the individual concerned, the seriousness of the offence or alleged offence, whether the individual has been convicted, and if so whether it is a first conviction. The different categories can be summarised as follows:
- Adults - convicted: indefinite retention of fingerprints, impressions of footwear and DNA profile (see substituted section 64(2));
- Adults - arrested but unconvicted: retention of fingerprints, impressions of footwear and DNA profile for 6 years (see new section 64ZD);
- Under 18 year olds - convicted of serious offence or more than one minor offence: indefinite retention of fingerprints, impressions of footwear and DNA profile (see substituted section 64(2));
- Under 18 year olds - convicted of single minor offence: retention of fingerprints, impressions of footwear and DNA profile for 5 years (see new section 64ZH);
- 16 and 17 year olds - arrested for but unconvicted of serious offence: retention of fingerprints, impressions of footwear and DNA profile for 6 years (see new section 64ZG);
- All other under 18 year olds - arrested but unconvicted: retention of fingerprints, impressions of footwear and DNA profile for 3 years (see new sections 64ZE and 64ZF);
- Persons subject to a control order: retention of fingerprints and DNA profile for 2 years after the control order ceases to have effect (see new section 64ZC);
- All DNA samples: retained until profile loaded onto database, but no more than 6 months (see new section 64ZA).
49. The clause also contains provision in new section 64ZB for material which has been given voluntarily to be destroyed as soon as it has fulfilled the purpose for which it was taken, unless the individual is subsequently convicted, has previous convictions or consents to its retention.
50. In addition, where fingerprints or DNA profiles would otherwise need to be destroyed because of the expiry of a time limit set out in the above clauses, new section 64ZK enables a chief officer of police to determine that, for reasons of national security, those fingerprints or DNA profiles may be retained for up to two further years on that basis. It is open to chief officers to make further determinations to retain material where the necessity continues to exist.
62. Clause 19 requires the Secretary of State to make a statutory instrument prescribing the manner, timing and other procedures in respect of destroying relevant biometric material already in existence at the point this legislation comes into force. This will enable the Secretary of State to ensure that the retention and destruction regime set out in this Bill is applied to existing material, while recognising that this exercise may take some time to complete; there are some 850,000 profiles of unconvicted persons on the National DNA Database. The statutory instrument will be subject to the negative resolution procedure. [emphasis added]
As can be seen, innocents will have their DNA profiles (as well as their fingerprints, palm prints and possibly footwear impressions - held on the IDENT1 database) retained for at least six years (reduced to three years for those who were arrested when under 18 and only for a minor offence). Furthermore, a chief constable would be able to extend this every two years, indefinitely, on the basis of 'national security'. This is extremely pernicious, as the opaque concept of national security prevents any scrutiny or objection. Even the judiciary system does not have the competence to scrutinise matters of national security, as was pointed out at a recent SIAC hearing. It is curious that a national security decision rests with chief constables and not the Home Office as this is essentially a political matter. Deleting the DNA profiles of innocents already on the NDNAD will require further secondary legislation and so will be delayed even further.
The Home Office has again attempted to justify its plans by including irrelevant research of unknown quality. In Sentenced to genetic probation, I showed many holes of the research by the Jill Dando Institute that was included in the consultation document; even the Institute's director later disavowed the findings. The Home Office published alongside the summary of responses to the consultation: DNA Retention Policy: ReArrest Hazard Rate Analysis, a paper authored by the Association of Chief Police Officers (ACPO) Criminal Records Office (ACRO). It was not peer-reviewed either. It's 22-page long, and one wonders why it was published at all, after reading its first page:
However, the research does not take account of when the samples were originally taken, and hence cannot say how much increasing the retention period above zero might reduce the number of DNA matches – and hence possible detections – which are lost. It also does not say anything about the possible impact of DNA and retention periods on other offence types. Therefore, although providing a prima facie justification for a policy, the ACRO research does not provide evidence to inform the length of any general DNA retention period. [emphasis added]
Another example of policy driven evidence. Chose your statistics wisely and reach any number: using Ministry of Justice data I found that the 'average time to re-offend, for convicted criminals, is three months at one end of the spectrum and less than six months at the other.' Using UK National Statistics, Chris Pounder found 'a three year retention period for DNA appears optimal in that it would allow most reoffending (82%) to be caught (assuming that the DNA was the only means of identifying the offender)'. Note that both Chris Pounder and my analysis are about 're-offending', i.e., individuals who had been previously found guilty.
The ‘state’ should not hold personal information on innocents says everyone else
The Home Office has demonstrated its willingness to ignore the responses to its own consultation as well as the Strasbourg ruling. As many as 402 individuals (and 101 organisations) took the effort to respond to the Keeping the right people on the DNA database consultation. (See my response). A high number when compared to other recent Home Office consultations. This shows that, although the National DNA Database is a complex topic, there's widespread concern about it and a willingness to have a wide debate. Three hundred and eighty four respondents commented on the retention of profiles of those 'arrested but not convicted or no further action' (i.e. innocent):
This topic generated most responses with the significant majority opposed to any form of retention of profiles and fingerprints for persons arrested and against no further action was taken or acquitted. Most of those opposed to any form of retention considered that the ‘state’ should not hold personal information on an individual when they are innocent in the eyes of the law. It was entirely inappropriate that a person should be treated the same as a person who had been found guilty and it went against the principle of ‘innocent until proven guilty’. [emphasis added]
The Committee of Ministers of the Council of Europe, in charge ensuring compliance of states with ECtHR rulings, still remains critical of the government's general measures after seing the draft bill:
5. [The Deputies] welcomed that the new proposals foresee that all cellular samples should be retained for a maximum of six months from the date on which they were obtained and that time limits for the retention of fingerprints and DNA profiles should be introduced, with special provisions for minors;
6. nevertheless noted that a number of important questions remain as to how the revised proposals take into account certain factors held by the European Court to be of relevance for assessing the proportionality of the interference with private life here at issue, most importantly the gravity of the offence with which the individual was originally suspected, and the interests deriving from the presumption of innocence (see paragraphs 118 – 123 of the judgment), and requested, accordingly, that the Secretariat rapidly clarify such questions bilaterally with the United Kingdom authorities;
7. noted that further information was also necessary as regards the institution of an independent review of the justification for retention in individual cases;
MPs have had to deal with more complaints from their constituents and many are better informed about the NDNAD. (The House of Commons Library published a Standard Note, SN/HA/4049 Retention of fingerprints and DNA data, which is a good concise summary). In her opening speech of a parliamentary debate about the NDNAD on 2009-12-09, Diane Abbott MP summed up the single-mindedness of the Home Office position:
Of course, if somebody is proven guilty in a court of law, no one objects to their DNA being kept in principle. The issue is the indiscriminate collection of innocent people's DNA. I spell that out right at the beginning because, sadly, when Ministers talk about the DNA database, they tend to merge and elide innocent and guilty people. It is almost as if the Government have a third category: rather than someone being wholly innocent, they might be not really innocent. As a Parliament, we must stand firm on one of the oldest British traditions: innocent until proven guilty.
The Select Committee on Home Affairs has decided to hold an inquiry into the DNA database. Be sure to attend or watch, the first evidence session this Tuesday 2010-01-05 at Portcullis House.
Holding on to PNC records indefinitely
Currently, for those who have been DNA sampled by the police, the way to get off the NDNAD is to send a request to the chief constable of the force that arrested them. The chief constable must be convinced that the case is 'exceptional' enough before they may eventually relent. (See ReclaimYourDNA for some help.) Success means the DNA samples will be destroyed and the DNA profile, fingerprints, palm prints and Police National Computer (PNC) record will be deleted. The PNC record is created at arrest and contains details about the arrests and also details of the corresponding entry in the NDNAD, but not the DNA profile itself. (For details, see this blog post about NDNAD records.)
You may have noticed that the bill's explanatory notes quoted at the start of this post, do not mention the PNC record at all. According to The Observer, this is because the government wants to hold on to the PNC records – of innocents and criminals alike – indefinitely. The current retention rules about the PNC (and the NDNAD), are specified in an Association of Chief Police Officers (ACPO) guideline. The Equality and Human Rights Commission requested the ACPO to change the guidelines, but ACPO's response has not been made public and no change has been announced. With the bill being silent about the PNC, ACPO would be free to change its guidelines to extend the retention period of PNC records indefinitely, even if the associated DNA profile eventually gets deleted. The Observer:
The names of nearly a million people who have not been convicted or cautioned for any crime will continue to be stored on the police national computer, even though the government is changing the law so that their DNA profiles are deleted.
The revelation has provoked outrage among human rights groups who warn that it could affect the job prospects of the innocent. They fear that whenever an employer carries out an "enhanced criminal records" check on a potential employee, the system would flag up the fact that the person had been arrested. [...]
"Keeping permanent records of arrest is unprecedented in British history and is open to serious abuse," said Helen Wallace, director of the campaign group GeneWatch UK. "Failing to delete police records of people who are innocent means business as usual for the surveillance state."
The office of the information commissioner has warned: "All records held on the [police national computer] are readily accessible to any serving police officer acting in his or her official capacity and this access is frequently used to run a 'name check' on individuals who come into contact with the police. Given this level of access, the commissioner is concerned that the very existence of a police identity record created as a result of a DNA sample being taken on arrest could prejudice the interests of the individual to whom it relates by creating inaccurate assumptions about his or her criminal past."
The presence of information about a DNA profile on a retained PNC record can affect innocents not solely when revealed in an enhanced criminal record. For instance, the BBC published the story of a Mancunian who when stopped by the police, after a PNC check, was told 'You're on the [DNA] database. So you've obviously done something wrong. What are you trying to conceal now?' The PNC is accessible not only by the police, but also by 56 non-police bodies.
This tactic of changing an arbitrary large number (say 12 years) to another arbitrary large, but smaller, number (say six years) is obviously not a new one. When the government was pushing for 90 days pre-charge detention, and eventually getting the 28 days amendment through, many MPs claimed this compromise as a success apparently forgetting that innocents could be locked up for four weeks and have their life ruined. In the case of the NDNAD, the proposed change from 12 to six years for the retention period has at least succeeded in the editor of Sunday national newspaper cancelling a story about the NDNAD for which I had been interviewed. A small success for the Home Office.
With this bill, the Home Office is single-mindedly pushing for an abandon of the principle of ‘innocent until proven guilty’ by proposing to retain DNA profiles of innocents for six years or more and their PNC record indefinitely, for an abandon of the principle of rehabilitation by proposing to keep retaining DNA profiles of convicted adults indefinitely, for avoiding parliamentary scrutiny of its (unannounced) plans to deal with the existing records of innocents and for getting more people's DNA profiles on the NDNAD in the first place by getting a DNA sample when someone receives or has received a caution, reprimand or warning. The creeping up of national security purposes in general legislation is dangerous as it creates powers that can't be checked. In addition to the impact on people's life, the cost of storing these DNA profiles (about £4.50 per profile per year) would be better spent on measures for which there's evidence they improve crime detection, or even on prevention.
There's a wide consensus that adding DNA profiles of crime scenes has a direct impact on detecting crimes. However views differ widely as to what is achieved by retaining the DNA profiles of millions individuals, including that of many innocents, when there's a lack of evidence demonstrating this helps detect crimes. Hence, it is surprising to learn that while the Home Office is keen to waste money on retention of DNA profiles of millions of individuals, it is to stop funding and put at risk Operation Stealth, a national operation to review unsolved murders. Detectives have had great successes when loading the DNA profiles of such cold cases. Continued funding of Operation Stealth should remain a priority.
The Times revealed that Police spending cuts may spell the end for unsolved murders unit:
Cold case units are frequently staffed by retired detectives, who can be laid off more easily than serving police officers. With the cutbacks looming, The Times has also been told that the Forensic Science Service (FSS) is reducing its charges for cold case work to try to encourage police forces to continue the work. FSS labs, which are reviewing more than 200 cases, have assisted in most cold case convictions since 1999.
The success of historic inquiries, which has spawned a spate of TV dramas such as New Tricks and Waking The Dead, is due largely to rapid advances in DNA technology. Two decades ago large amounts of DNA material had to be found at a crime scene to obtain a profile; today offenders can be identified from a few microscopic cells.
Detectives have been able to reopen and keep under constant review unsolved cases from the 1970s, 1980s and 1990s. [...]
The bulk of successful cold case convictions have been for rapes and sex assaults but since 2007 there has been a concerted drive to re-examine murders. Operation Stealth provides financial and investigative help to forces to reopen murder files. Some 46 murders are under review.
The police service’s national lead on homicide inquiries, Jon Stoddart, Chief Constable of Durham, has been been pleading with the Home Office to continue the project until 2012. As yet, however, no agreement has been reached to finance it beyond April next year.
Geoff White, project manager for Stealth, said: “It’s about equality of service. For today’s victim, the police respond with the 2009 toolbox — DNA and telephone evidence are available. Why not look at yesterday’s victim and where material still exists allow detectives to use today’s toolbox to try to find the killer? It is a moral argument, a theoretical argument, but it’s a strong one.”
The Human Genetics Commission, in its Nothing to hide, nothing to fear? (November 2009) report, highlighted that money would be better spent by adding more DNA profiles of crime scenes than that of individuals:
Improved composition – Efforts have been made to calculate an optimum size for the NDNAD [National DNA Database]. In its strategic plan Confident Communities in a Secure Britain: The Home Office Strategic Plan 2004-08, the Home Office estimated that half of all crime in England and Wales was committed by a stable pool of 100,000 offenders, with just 5,000 offenders being responsible for 9% of all crimes.7 It went on to say, however, that “most of these [100,000] offenders are known to the police and other agencies” and are therefore, by implication, already recorded on the database, although there is a 20% turnover each year, with 20,000 new offenders estimated to join the pool of prolific offenders to replace a similar number who leave it. (We note that this is a substantial number in relation to the number of new profiles added to the database each year – around 700,000 in the two most recent years for which data is available.8) It is not clear where the data on which the claim about the 100,000 core offenders was sourced (the source is described as ‘Home Office’) nor whether those who commit the remaining half of crimes are ‘occasional’ or ‘one-off ’ offenders. However, we can infer from these figures that half of all crimes are committed by approximately 2.2% of the people who are currently recorded on the database (assuming that those who are ‘known to the police’ have previously been arrested and their profiles stored on the NDNAD). In this connection we note that others, for example GeneWatch UK and the Nuffield Council on Bioethics, have concluded that putting more effort and resources into the recovery of DNA samples from crime scenes could yield significantly better detection rates than the indiscriminate expansion of criminal justice samples taken from arrestees; we share this view. [emphasis added]
The Home Office, along the years, has offered supporting views – when it's not been busy trying to expand the National DNA Database (NDNAD) by any means. Six months after publication of the National Policing Plan 2004-20079 (November 2003), the Home Office claimed in the Police Science and Technology Strategy: 2004 - 2009 (May 2004):
Significant milestones achieved since this strategy was first published include:
• The profiles of the majority of known active criminal population (2.5 million) on the national DNA database.
(The expressions 'criminal population', 'active criminal population' and 'known active criminal population' are used in several Home Office documents and websites without being clearly defined. I am awaiting an overdue response to a Freedom of Information request for definitions sent on 2009-11-09.)
The Home Office was most clear about retention of what kind of DNA profiles achieves detection of crimes, in the DNA Expansion Programme 2000–2005: Reporting achievement (October 2005, no longer online) by its Forensic Science and Pathology Unit:
Evaluation of the Programme has shown that the number of matches obtained from the Database (and the likelihood of identifying the person who committed the crime) is 'driven' primarily by the number of crime scene profiles loaded onto the Database [emphasis in the original]
GeneWatch UK looked at the data over four years in its background web page (2006) to the The Nuffield Council on Bioethics consultation and found that:
Since April 2003 [to 2006], about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA [as a percentage of recorded crimes] has remained constant, at about 0.36%.
In the Annex: DNA detection model: validation issues (Word) to its response to the Home Office consultation (2009), GeneWatch UK found that the percentage of recorded crimes which involve a DNA detection was again 0.36% in 2007/08.
The National Police Improvement Agency (NPIA), in its National DNA Database Annual Report 2007-09, makes the same point, again:
A crime is said to have been detected when a suspect has been identified for that crime and there is sufficient evidence to charge the suspect. DNA matches are a powerful aid to crime investigation and detection: where DNA profiles from crime scenes are added to the Database the rate of detection can be significantly increased. [emphasis added]
In the graphs below, the curves representing crimes with a DNA crime scene to subject DNA profile matches and crimes detected in which a DNA profile match was available show very close correlation with those for the number of DNA profiles from crime scenes loaded each year on the NDNAD. This is consistent with the consensus that loading DNA profiles of crime scenes is what drives detection. Adding millions of individuals' DNA profiles does not make that much of a difference.
(Source data for both these graphs: National DNA Database Annual Report 2007-09.)
The annual report explains the correlations by a causal relation. When fewer DNA profiles of crimes scenes are loaded, irrespective of the number of DNA profiles of individuals added, there are fewer matches. The report also makes the point that the vast majority of matches happen when DNA profiles of crime scenes are added, reinforcing the position that core offenders are already on the NDNAD and adding DNA profiles of innocents or those committing minor offences does not help detect crimes.
During 2007/08, one or more subject profiles were matched with 40,406 crime scene profiles. The total represents a decrease of 8.6% of the total number of crime scenes for which one or more suspects were nominated in the previous year. The fall is due to fewer new crime scene profiles being loaded within the period. [...]
A key objective in recent years has been to ensure that the majority of the active criminal population is represented on the NDNAD, and this has led to a steady increase in the likelihood of a crime scene profile matching to a subject profile already held on the NDNAD upon being loaded. This is referred to as the crime scene to subject match rate.
Matches to crime scenes also occur when, upon being loaded, a subject profile matches to a crime scene profile already held on the NDNAD. This subject to crime scene match rate is a much lower figure. As previously explained, this is because the majority of recorded crimes do not have a crime scene (for example, minor assault, drugs offences, theft, fraud etc.) and consequently there is no crime scene examination. [emphasis added]
In time of tight budgetary constraints, the Home Office and the police can afford not to retain DNA of innocents. Their priority must be to load DNA profiles from crime scenes whether new or old.
Vocabulary note (based on definitions in the NDNAD annual report):
‘Matches’ include cases where the individual had an innocent reason for being at the crime scene and cases where it was not possible to take the investigation forward as well as cases where the individual is eventually convicted.
A ‘DNA detection’ means that the crime was cleared up and a DNA match was available.
For a list of all the posts on this blog check out the blog archive.