When I was unlawfully
arrested at Southwark tube station in 2005, the first thing police officers
said they found suspicious was that I was ‘avoiding them’. When I
entered the station, instead of looking at them, I looked at the steps. It
probably didn't help either that I had an eye infection that day.
Since then, there has been many more stops and searches without the need for reasonable suspicion, and much further education. This should make it clear that avoiding eye contact does not mean being suspicious.
For instance, the National Autistic Society published Autism: a guide for criminal justice professionals, endorsed by the Association of Chief Police Officers, which contains advice such as:
Misunderstanding social cues
Many people with autism find it difficult to make eye contact. In some cases it will be fleeting or may be avoided altogether. In others, eye contact may be prolonged or intrusive. This has led to cases such as a young man with autism who was served an Anti-Social Behaviour Order for staring over a neighbour’s fence.
“Sometimes we find it hard or even painful to make eye contact, and people can misunderstand us, thinking we are shifty or dishonest.”
Person with Asperger syndrome“I recently found myself in court opposite a 15-year-old with Asperger syndrome and it was obvious how difficult he was finding the whole thing and how his behaviour might influence the view the magistrates took of him. For example, the lack of eye contact can be interpreted as a person telling lies. Magistrates have been trained on the eye contact issue in connection with certain cultures but I am not sure that they have been made aware of how it is also the case in people with Asperger syndrome.”
Solicitor, Brighton and Hove
However it would appear that avoiding eye contact is still perceived as highly suspect. This is an extract from the UK Border Agency response (pdf) sent a couple of days ago to a freedom of information request by David Hansen about the targeting of bus passengers for passport checks:
Using these powers [to stop and question a person ‘in-country’] Immigration Officers may legitimately question individuals encountered in public places in order to determine their immigration status under three specific circumstances:
- The intelligence is so specific that the Immigration Officer knows the immigration offender will be travelling on a specific date, time, location, train etc;
- The Immigration Officer has formed a reasonable suspicion that the individual is an immigration offender e.g. from what is said by the person during the course of a prior interview with a police officer; or
- Where the individual displays an ‘adverse reaction’ to a clearly identifiable immigration presence. This could give rise to a ‘reasonable suspicion’ that the person is an immigration offender. An ‘adverse reaction’ could include attempting to avoid passing through or near a group of Immigration Officers, a sudden or unexplained change of direction, avoiding eye contact or hanging back from barriers. [Emphasis added.]
Rupert Goodwins's recommendation, from his guide to not getting arrested in London, still applies:
He didn't look at the police at the entrance to the station. The plod wasn't detailed about how much looking is required to allay their suspicion — the more the merrier, I guess. I recommend carrying a pair of binoculars on a tripod: there may be no police at your station, and you might have to sweep the area. Once you've found a policeman, stick an "I've Been Seen!" badge on their lapel.
GeneWatch UK warns about some of the risks of the David Cameron's plan to share NHS data with private companies:
[...] "Every adult and baby with a blood or tissue sample stored in the NHS could end up with details of their genetic make-up stored in a cloud-based DNA database built by stealth within the NHS" said Dr Helen Wallace, Director of GeneWatch UK. "The Prime Minister should come clean about whether sharing people's DNA and genetic information is part of his new plans. Is Google one of the private companies that will be offered access to people private information stored in the NHS? Will DNA and genetic information be shared with them or other companies without people's knowledge or consent?" [...]
Further information about the new government data sharing plans can be found on the GeneWatch UK's NHS data-sharing 2011 page.
In response to a series of Freedom of Information requests, the British Transport Police (BTP) have revealed they have installed CCTV cameras in the strip search rooms in all their ten custody suites. This is contrary to the Home Office guidance and the practice of the Met. It is also contrary to BTP's own current policy.
BTP say there won't be CCTV in strip search rooms, except they all have CCTVs
The BTP initially explained that 'Both the BTP Policy and the [Safer Detention & Handling (SDH)] Home Office Guidance state that CCTV is not used in rooms used for strip or intimate searches.' After some further prompting, the BTP admitted that 'All ten [BTP] custody suites have CCTV in rooms where strip searches are being carried out', and that common sense should be put aside as 'You should note that this is not in contradiction to the [BTP] CCTV in Custody SOP [Standard Operating Procedure] as it is only a draft SOP and is still awaiting sign off. Nor are BTP in breach of the SDH Guidelines which states that strip/ searches can be carried out in a room with CCTV as long as the recording of the search is necessary and proportionate.' (Emphasis added.)
Section 3.10.4 of the BTP CCTV in Custody SOP (pdf) below is explicit when using cells for strip searches:
Cells with cameras will not be used for strip or intimate searches
Note, however, that one needs to extrapolate about rooms other than cells used for strip searches, or refer to the BTP explanations in their freedom of information response that that CCTV is not used in rooms used for strip or intimate searches.
This version of the SOP is v0.14 dated January 2010 (with a start date and a review date both of 2009). The BTP Information Standards Manager noted 'that this is a draft copy of the Standard Operating Procedure and has not been signed off by a member of the Senior Command Team.' One of the ten BTP custody suites (pdf list), at Brewery Road, was opened in August 2011, after this SOP was drafted. (This custody suite is the first and so far only one built using a modular system created by Britspace.) This draft SOP describes the opposite of what had been built before and is not followed either for custody suites built since.
Section 15.3.4 of the mentioned Home Office Guidance on the Safer Detention & Handling of Persons in Police Custody (pdf) states:
Cells equipped with CCTV should not generally be used to conduct strip searches or consultations between detainees and their legal representatives. There may be occasions when recording a strip search via CCTV is desirable for the protection of staff, however, consideration must be given to PACE Codes of Practice, Code C, Annex A, paragraph 11(b). The recording of the search must be shown to be necessary and proportionate in the circumstances. For further information see 15.3.10 PACE and Codes of Practice." [Emphasis added]
and section 15.3.10:
Conducting strip searches in CCTV cells is not precluded but a CCTV cell should not be regarded as a suitable place for a strip search unless control measures are implemented to ensure that the requirements of PACE Codes of Practice, Code C, Annex A are met. If a custody officer authorises a strip search to take place in a CCTV cell, the additional measures taken to protect the detainee’s privacy and dignity should be recorded in the custody record.
The referenced section of the PACE code (pdf) is about 'The conduct of strip searches' and includes:
11. When strip searches are conducted:
(a) a police officer carrying out a strip search must be the same sex as the detainee;
(b) the search shall take place in an area where the detainee cannot be seen by anyone who does not need to be present, nor by a member of the opposite sex except an appropriate adult who has been specifically requested by the detainee; [Emphasis added]
(c) except in cases of urgency, where there is risk of serious harm to the detainee or to others, whenever a strip search involves exposure of intimate body parts, there must be at least two people present other than the detainee, and if the search is of a juvenile or mentally disordered or otherwise mentally vulnerable person, one of the people must be the appropriate adult. [...]
The Home Office is more definitive in its Police Buildings Design Guide - Custody (pdf) which includes the following requirement:
PD1.04.02.09 Search / Evidence – Search Room
[Suite size dependant or Preferred]This room is used by the custody staff to search the detainee. This facility will need panic alarm coverage for security and / or safety reasons. No CCTV coverage. Walk through metal detectors are not recommend; hand held units, used correctly are recommended. [Emphasis added]
(Note that the Metropolitan Police Service follow the Home Office guidance. Criteria 1.53 for using CCTV in cells in the Met's Custody Standard Operating Procedure (pdf) is 'A CCTV equipped cell must never be used for a consultation between a detainee and their legal representative or for conducting a strip search.' [Emphasis in the original])
Feeling safer when stripping in front of a CCTV?
The PACE codes are clear that when a strip search occurs, 'the detainee cannot be seen by anyone who does not need to be present, nor by a member of the opposite sex. What about the recorded CCTV images? There may be requirements for persons not present to view the images, when there is a complaint for instance, but is the rule about not viewing the stripped detainees by members of the opposite sex enforced by the BTP for the recorded images? Unlikely as the BTP do not keep a record of the number of times recorded CCTV images are accessed or viewed, nor the sex of officers having access to the footage or their rank. (Such 'Information [is] not held' responded the BTP to my request.)
When discussing this issue of the BTP filming strip searches, several friends suggested that having a video record of a police strip search is a good thing. As a privacy advocate put it, 'one of the key aspects is protection of the suspect, rather than protection of the police.' It is evidence in case of wrongful behaviour. There are several issues with this argument.
Firstly, stripping in front of a camera does not respect the privacy or the dignity of the detainee who is obviously in a vulnerable situation (and innocent until having been charged and convicted).
Secondly, an audio recording would serve a similar purpose with much greater respect for all involved. (This is a very different situation than the recently exposed audio and video recording in taxis).
Lastly, unfortunately CCTV cameras are occasionally malfunctioning or the recording goes missing, sometimes following complaints about police behaviour. There are several well-known cases of missing CCTV footage. A more minor one I am particularly familiar with, is the CCTV footage of my unlawful arrest at Southwark tube station. I eventually found in my IPCC case file that the BTP did obtain the recorded CCTV footage of the platform from Transport for London. However, in a response to a subject access request, the BTP wrote to me that they don't have this CCTV footage, they may have given it to the Met (who claim they never had it) and anyway they have no record of what they did with it: 'I could not locate any information regarding the holding and retention of the footage. The retention period for holding data is usually 6 years.'
To have a draft policy that says one thing and then doing the other precludes any proper debate on this important societal issue. Do we really want to be filmed when stripping in a BTP custody suite, or anywhere else?
Update 2011-12-04 The BTP in their response explained that they don't breach any guideline 'as long as the recording of the [strip] search is necessary and proportionate'. I've been wondering how and when this is determined, so I've just asked in another Freedom of Information request about the 'Criteria for the determination of necessity and proportionality of the CCTV recording of strip searches' . A response should be posted at that same link by 2012-01-05.
Update 2012-01-03 A further response has been received. Follow-up at No guidelines or training for BTP officers about CCTV recording of strip searches.
The next meeting of the Metropolitan Police Authority (MPA) full Authority on 2011-11-24 starting at 10am promises to be interesting for those concerned by the criminalisation of innocents and of peaceful protest. The agenda has just been published and it features a question about police provocations at a peaceful march and a report addressing how the Met seeks to address the key findings of the review ‘Protecting the innocent’ – The London Experience of DNA and the national DNA database. Attendance is open to the public.
Following the police provocations at the peaceful silent procession to Downing Street in remembrance of those who dies in custody (see my earlier report at Police provocations at peaceful march against deaths in custody), Samantha Rigg-David will be asking to the MPA the following question on behalf of the United Families and Friends Campaign (UFFC):
‘The UFFC, a coalition of bereaved families, has been hosting an annual procession for 13 years in remembrance of loved ones who have died in custody or state care. The stewarded march, led by family members, entails a silent procession from Trafalgar Square to Downing Street. Following this, family members share experiences of the loss of their loved ones and then deliver a letter to Downing Street containing a list of recommendations for consideration by the Prime Minister. Traffic is often temporarily blocked in the process for a short time. Although it is an emotional event, the march has always passed peacefully and typically disperses around 4pm. The march provides a rare opportunity for grieving families to come together to highlight concerns to those in authority and also provide mutual support. Policing of the march in the past has appeared to be proportionate both in response to the sensitive nature of the event and also in recognition that it does not pose a threat to public order.
This year, at about 3pm, after delivering the letter to Downing Street family members and friends found themselves subject to aggressive and degrading treatment at the hands of a large deployment of what we believe were TSG officers [The 'U' collar number clearly visible in this photograph by Guy Smallman, for instance, confirms their deployment]. In addition to this a helicopter was flying overhead and we also noticed a FIT team had been deployed. The sudden deployment of around 100 officers, in addition to the large number of uniformed officers already present, and the ensuing treatment caused panic, physical injury and distress to the remaining marchers. Attempts were made by stewards, legal observers and marchers to talk to the police, informing them this move was provocative and appealing for restraint, but this was ignored. The officers performed a ‘sweep’ of the road, as if clearing it of rubbish, pushing aside and trampling on anybody in their way. We believe there was only a small crowd of marchers in the road at this point with around half the march on the opposite side of the road. The actions of the police caused marchers on the opposite side of the road to move forward to join those being swept in an attempt to provide some sort of safety in numbers against this attack.
Many of those that the police ‘swept’ were vulnerable bereaved relatives including parents, grandparents and children. At one point officers picked up the mother of someone who had died in custody by her arms and legs and deposited her on the road like a ‘sack of potatoes’. Children were screaming in fear. After this the police began to form a kettle, which caused widespread intimidation and forced marchers to disperse in an undignified and cajoled manner without any proper closure to the march. Those who attended the march have told me they feel traumatised by the experience. We understand it is not the role of the MPA to investigate the actions of individual officers on the march however it does hold responsibility for holding the police to account over operational and tactical matters.
We believe it was both entirely unwarranted and unnecessarily confrontational to deploy these officers and wish the MPA to fulfil its public duty by assisting us in scrutinising how and why this decision was taken. I wish to attend the full authority meeting to raise this question in person.
We are fully cognisant of the climate of the times, in terms of heightened public interest around deaths in custody and levels of tension around public order policing. However, we believe this calls for intelligent and sensitive policing. We do not accept that the response of the police was justifiable, proportionate or in accordance with ACPO guidance around keeping the peace’.
Also on the agenda is the Metropolitan Police Service's response to the Civil Liberties Panel review ‘Protecting the innocent’ – The London Experience of DNA and the national DNA. When the Civil Liberties Panel published its recommendations in June, it gave three months to the Met to respond with a timetable for implementation (see The London experience of DNA and the National DNA Database). The Met's response will be presented to be reviewed by the Civil Liberties Panel.
MPS response to the Civil Liberties Panel review ‘Protecting the innocent’ – The London Experience of DNA and the national DNA database
Report: 7
Date: 24 November 2011
By: Director of Forensic Services on behalf of the CommissionerSummary
This report sets out the MPS response to the MPA Civil Liberties Panel review: “Protecting the Innocent”. The MPS accepts all the recommendations made within the review and seeks to address the key findings of the Panel and the concerns of London citizens as expressed within the report. The key focus of the Panels’ report is communication and engagement with the communities and therefore trust and confidence in policing London and the use, by the MPS, of DNA profiling to solve crime, strike the right balance between the liberty of individuals and protecting society.
A. Recommendations
That Members note the MPS response to their recommendations as set out in the report “Protecting the innocent”: The London experience of DNA and the National DNA Database”.
B. Supporting information
1. The MPS actively contributed to the MPS Civil Liberties Panel review into the London experience of DNA profiling and the National DNA Database and agrees with its key findings that:
- DNA profiling is critical to the successful investigation of crime particularly in serious violence and sexually motivated crime where the perpetrator is a stranger to the victim.
- The Protection of Freedoms Bill addresses the judgement in the European Court of Human Rights in the case of S and Marper where the court found against the UK for the blanket and indiscriminate retention of DNA profiles but the Bill will allow for a speculative search of all those arrested for a recordable criminal offence.
- The MPS need to have robust procedures for the taking, examination, storage and deletion of DNA profiles and provide reassurance that these procedures are being adhered to.
- There needs to be much more communication and engagement with the citizens of London to ensure that use and impact of DNA profiling is understood and that there are the necessary safeguards in place to protecting privacy and civil liberties.
2. The title of the report “Protecting the innocent” could be taken to refer to those who are arrested and not convicted but have their DNA profile retained indefinitely under current legislation. It could equally refer to all of the individuals who are suspected of a crime but found to be eliminated as a suspect because their DNA profile does not match the DNA found at the crime scene or on the victim. It is the power of DNA profiling to exclude that provides one of the strongest safeguards against false accusation or wrongful conviction in the criminal justices system. The recommendations made in the report provide a basis for the MPS to further strengthen its processes and inform the citizens of London, so that the balance between an individuals civil rights and the need for society to identify criminals and bring them before the courts. In the following section we have addressed each recommendation providing a response on the action to be taken by the MPS to implement the recommendation. All of the recommendations of the Civil Liberties Panel are accepted by the MPS.
3. On the timing and timescales for implementation where there are simple process changes, such as not making a confirmatory DNA sample the MPS will implement as soon as practicable. For some of the wider changes and in particular community engagement, we see merit in timing communication and change to coincide with the implementation of the Protection of Freedoms Bill. This will mean that positive messages about the management and use of DNA profiling by the MPS can be reinforced alongside the wider changes to destroy DNA samples, limit DNA retention of unconvicted individuals and acknowledge the introduction of the role of the Biometrics Commission.
Recommendation 1: [section 3.3 of the report] - People who have their DNA taken should be provided with the following information in writing, at the point when their DNA is taken (full recommendation not recorded).
- Why their DNA has been taken and what this means for them:
- for those arrested for a recordable offence
- for those examined under Schedule 7 of the Terrorism Act 2000
- for those who volunteer to provide a DNA sample
- The circumstances in which DNA is retained and for how long (both the sample and the profile)
- Where their DNA samples will be stored.
- How and in what circumstances an individual can apply to have DNA removed from the Database including clear guidelines on the framework for decision making.
- Who has access to their DNA record and the safeguards in place to protect this information.
- Who has knowledge that their DNA has been taken.
- Authoritative sources of further information (e.g. MPS / NPIA website).
[text in italics added from the original Recommendation 1. Emphasis added.]
Recommendation 5: [section 3.6 of the report] - In relation to the management of DNA within MPS custody suites, the MPS should: a) Agree a clear process outlining how and when DNA samples are to be taken, processed and retained within custody. b) Train all officers and staff responsible for taking a DNA sample to ensure the procedure is undertaken correctly. c) Develop an agreed chart detailing each step of the process which should be prominently displayed in every MPS custody suite (accessible to both MPS personnel and arrestees). This chart should be dated and subject to regular review.
- Ensure that this agreed procedure is strictly adhered to across all MPS custody suites.
- Ensure that any deficiencies identified through the HMIC/HMIP custody suite inspections in relation to the management of DNA are addressed.
[text in italics added from the original Recommendation 5]
4. We have taken the two recommendations together as they address the information to be provided in MPS Custody Suites and the process of DNA sampling for individuals under Criminal Law. We have produced draft pamphlet and posters that address the specific points made in the recommendations for the different groups of individuals who will be asked by the police to provide a DNA sample i.e.
- Individuals sampled under PACE - arrested for a recordable offence
- Individuals examined under Schedule 7 Terrorism Act 2012
- Individuals sampled as volunteers for the purpose of elimination
The draft pamphlet and posters are shown at Appendices A, B and C.
5. We have produced a revised process for DNA sampling in custody that incorporates the detailed points made in recommendations 1 and 5 and recommendation 6 that is dealt with later in the report. These processes will be promulgated through the MPS Aware system and will be published on the MPS internet site. All police officers and police staff who undertake DNA sampling will undergo training using these processes. We anticipate that, subject to the further consultation on the content and delivery of the training in the MPS, that the process will be implemented and the training completed by March 2012.
6. With regard to audit the central MPS DNA Services Unit monitors overall compliance with the procedures by providing a quality assurance function and generating management information for use by Borough Commanders and Territorial Policing HQ to ensure compliance with procedures and legal requirements. The management information that is provided on a monthly basis includes; the current performance of MPS Boroughs in DNA sampling from January - August July 2011 is given at Appendix D. In addition to providing this information the process on Boroughs, including the storage of DNA samples, are audited by the Borough Forensic Manager (BFM) and Crime Scene Manager (CSM) at quarterly intervals. The MPS also respond to HMIC Inspections.
7. As well as providing a pamphlet and written procedures two draft posters have been produced in response to the request by the Civil Liberties Panel; “Your DNA and What It Means to You” and “The DNA Sampling Process in Custody”. These will be the subject of further consultation within the MPS and with MPA members.
Recommendation 2: [section 3.4 of the report] - The MPS should demonstrate through their community engagement work, how they will raise understanding of, and public confidence in, the use of DNA in policing.
8. The MPS Diversity and Citizen Focus Group and DNA Services Unit will work collaboratively to engage with communities in London to raise awareness on DNA sampling processes and the use of DNA in policing. It is important that such engagement dispels perceived myths the public may have as to what actually the police can do with a persons DNA, who has access to the DNA profile and what it actually means to an individual to have their profile on the National DNA Database. Particular concerns to the public are the disproportionate representation of some groups and communities on the National DNA Database but greater communication and engagement with citizens of London will aim to address these concerns and develop greater understanding of when and why DNA is taken and that the ethnic make up of the DNA Database is a product of the Criminal Justice System and therefore not disproportional in its own right.
9. It is anticipated this community engagement will be delivered via a number of focus groups, held in various locations throughout London, where true representation of the local community is encouraged. In addition to this Jeanette Arnold has also proposed facilitating a question and answer session with prominent community leaders representing minority groups and communities in London. The community engagement program will be undertaken in 2012.
10. Engagement and communication with the citizens of London is critical to ensuring trust and confidence in the MPS. DNA profiling has advanced faster than any other forensic science discipline and will continue to advance rapidly, for example, the introduction of rapid DNA profiling in the Custody Suites and more sensitive and discriminating techniques will potentially raise public concerns. It is crucial that this engagement and communication continues and the public are kept informed of advancement in DNA technology and the significance of DNA and the DNA database in helping to solve crime.
Recommendation 3: [section 3.6.3 of the report] - Where the police take an individual in need of immediate care or control to a police custody suite as a place of safety as set out under section 136 of the Mental Health Act 1983 (as opposed to the individual being arrested for a recordable offence), the MPS should ensure that their DNA will not be taken.
11. It is MPS policy and a requirement of the Mental Health Act 1983 Code of Practice that a police station should only be used as a Place of Safety on an exceptional basis. A police station may be used where the detainee’s behaviour poses an unmanageably high risk to other patients, staff or users of a healthcare setting. On the very rare occasions where a police station is used, the MHA code places clear responsibilities upon health and social care agencies. MPS policy and procedures including the revised procedures referred to in MPS ‘Operational guidance for police officers and staff responding to incidents involving someone with a mental illness 2010’ make it clear that under no circumstances should a DNA sample be taken from individuals who are detained solely at a police station as a result of the power under Section 136 unless where a person exhibiting signs of mental illness sufficient to justify use of the Section 136 power is also liable to arrest for another matter, they should be arrested under both provisions. In such a circumstance a DNA sample can be taken if the arrest for the criminal matter is for a recordable offence.
12. As an additional safeguard the DNA Services Unit provides quality assurance such that if a sample was taken purely for the detention at a police station under Section 136 Mental Health Act then it would not be forwarded for processing. In 2010-11 and 2011-12 to date, there have been no instances where a DNA sample has been received from an individual who was detained purely under Section 136 of the Mental Health Act 1983.
Recommendation 4: [section 3.6.5 of the report] - The MPS should undertake a full Equality Impact Assessment (EIA) on the use of DNA within the MPS to address the impact of the use of DNA and the DNA Database on communities within London. This should seek to identify any disproportionality and include details of specific actions the MPS will take to address issues identified. It should be reviewed on a regular basis.
13. As part of the review of MPS DNA procedures the DNA Services Unit is required to undertake an EIA. This will involve the engagement with various communities within London, identifying any disproportionality on DNA sampling, addressing any issues identified in an effective manner. The Equality and Human Rights Council (EHRC) dictates regular review of this assessment. It is anticipated this EIA will be completed by January 2012. The MPS recognises that there is a clear overlap in responding to recommendations 2 and 4.
Recommendation 6: [section 3.6 of the report] - For all suspects arrested following a match on the DNA database between their DNA profile and an unsolved crime stain, it is MPS practice to take a confirmatory DNA sample from the suspect on their arrest. This is resource intensive and not standard practice across all forces. Therefore the MPS should provide a rationale for this including the costs for undertaking this practice.
14. The rationale for taking a confirmatory DNA sample has its origins in managing the risk of relying on a previous sampling process where there was no quality assurance as currently provided by the DNA Services Unit. The MPS introduced central management and quality control of the DNA sampling process much later than other police forces. In discussions with the CPS and to facilitate the provisions of evidence the taking of a confirmatory DNA sample was introduced. There are, however, recent changes in the criminal justice system and in particular the introduction by the MPS of Streamline Forensic Reporting (SFR). Under this process the provision of DNA matches and evidence is tightly managed by forensic case managers and the process allows for challenges to the forensic evidence to be identified and dealt with early in the criminal justice process, reducing the risk of discontinuance at court. The SFR will be rolled out across the MPS to deal with the majority of DNA matches in such a way that risk of challenge will be minimised. The MPS will, therefore, in consultation with the CPS change its policy to not require a confirmatory analysis for DNA matches produced by the National DNA Database. It is anticipated that this change will take effect on 1st April 2012.
Recommendation 7: [section 4.4 of the report] - The MPS should put in place procedures to ensure the removal of personal and demographic details prior to sending DNA samples to the forensic service providers.
15. This recommendation is a national requirement, the work overseen by the NDNAD Strategy Board in consultation with Police Forces including the MPS and as part of the Privacy Impact Assessment of the National DNA Database, the Strategy Board will be taking the following measures to enhance the security and privacy of DNA information used on the NDNAD.
- Changing the DNA sampling kit in order to limit the critical information held by Forensic Service Providers (FSP’s). Names will no longer be passed to the FSPs for newly sampled individuals from December 2011.
- FSPs are adding additional steps to decouple the DNA raw data file with the sample. This will be by implementing a processing identifier within their processes so that there is no link between the original sample identifier barcode to the DNA raw data. All FSPs are aiming to have completed this by the end of the March 2012.
There will be an independent audit to provide the Strategy Board and MPS with reassurance that the processes in operation within the FSPs are compliant with the Data Protection Act.
Recommendation 8: [section 4.5 of the report] - In relation to volunteer samples taken for elimination purposes, the MPS should ensure forensic service providers are informed when the criminal justice process has been concluded to ensure the DNA sample and corresponding DNA profile are no longer required and can be destroyed.
16. The MPS require volunteer samples to be taken as part of a criminal investigation to eliminate individuals from that investigation, for example the householder and victim of a domestic burglary, and are therefore important to effective progressing of an investigation. The MPS agree that the timely destruction of these samples and associated profiles are a requirement, and appreciates the possible human rights issues involved in retaining the samples and profiles longer than required. Historically and due to the way in which these samples were submitted for profiling i.e. no central collection or recording of the samples prior to submission, together with a difficulty in ascertaining when a case is concluded, most of these samples have been retained within the forensic laboratories after profiling. The MPS have devised a mechanism whereby the MPS DNA Services Unit will routinely be sent a list of volunteer elimination profiles from all contracted forensic service providers. All samples and extracts that have yielded a DNA profile will be destroyed immediately and any un-profiled DNA kits will be destroyed 3 months after the case has concluded.
Recommendation 9: [section 6.4 of the report] - The MPS should specify how MPS budgets will be impacted by the provisions within the Protection of Freedoms Bill. This should detail immediate and ongoing cost obligations.
17. The Protection of Freedoms Bill is yet to complete its passage through Parliament so the full financial implications are not yet clear. The MPS has made representations to the Home Office and Ministers to adopt a retention regime for DNA profiles that can be managed through the national police systems and databases (PNC PND), (IDENT1 and NDNAD) so that costs to police forces of administering a retention regime are kept to a minimum. The current governments’ proposals are, however, complex and will require major changes to accommodate all of the possible outcomes from an arrest for a recordable offence. They also include a determination by the Biometrics Commissioner for those individuals arrested for a recordable offence that is a qualifying offence but is not proceeded with to charge i.e. No Further Action (NFA). Appendix E gives a schematic representation of the retention regime under the Protection of Freedoms Bill and Appendix F gives an approximation of some financial costs to the MPS to implement some of the provisions of the Protections of Freedoms Bill as it currently stands.
Based on the provisions as they currently stand after the second reading in the Commons the main areas of concern are:-
- Annonymisation [sic] of raw data files as opposed to the deletion of the same;
- CPIA provisions in respect of deletion and destruction of elimination and evidential samples and profiles within casework for use in court proceedings;
- Automation of PNC files to enable deletion of DNA profiles;
- The position of the police service at the commencement of the proposed legislation.
C. Other organisational and community implications
Equality and Diversity Impact
1. The report published by the Civil Liberties Panel for the MPA focuses on equality and diversity issues for citizens of London. The MPS response has looked to address the issues highlighted within “Protecting the innocent” as detailed in a number of the recommendations particularly Recommendations 2 and 4.
Consideration of Met Forward
2. In consideration of the three strategic outcomes of Met Forward, tackling the issues that matter most to Londoners: fighting crime and reducing criminality; increasing confidence in policing; and giving us better value for money. This report seeks to address each of them individually within our response to each of the recommendations.
Financial Implications
3. There are direct financial implications as a result of this paper, such as the costs to the MPS for the provision of posters in Custody Suites and a pamphlet to be given to individuals taken into Custody and who will have a DNA sample taken Recommendations 1, 5 and 6. A further cost will be the outcome of training given to police officers both for the implementation of the revised DNA sampling processes and retention and deletion of DNA profiles under the Protection of Freedoms Bill.
4. Details of budget savings (Recommendation 6) and the impact upon the MPS as a result of implementing the provisions within the Protection of Freedoms Bill (Recommendation 9) are referred to in the body of this report.
5. For consideration in respect of this report both in terms of the immediate and ongoing costs is whether they can be met out of existing police budgets. The Protection of Freedoms Bill will have a considerable financial impact on the MPS which accounts for a fifth of all profiles on the National DNA database. The exact cost implications are unknown at this time until the Bill passes through Parliament and receives Royal Assent, believed to be around summer 2012.
Legal Implications
6. There are no direct legal implications arising from this report which is presented for information only.
7. The Protection of Freedoms Bill will in future contain a revised framework for the retention and destruction of fingerprints and DNA samples and profile, with the aim to strike a balance between public protection and safeguarding civil liberties.
Environmental Implications
8. There are no known direct environmental implications contained within this report.
9. Following implementation of the Protection of Freedoms Bill DNA samples will no longer be retained for longer than 6 months. Currently DNA samples are held indefinitely. The impact of this upon the environment is considerable since they are held in freezers, following commencement of legislation there will be a lesser environmental impact as there will be no requirement for long-term freezer storage.
Risk (including Health and Safety) Implications
10. There are no Health and Safety implications as a result of this report.
D. Background papers
None
E. Contact details
Report authors: Gary Pugh, Director of Forensic Services, MPS
Bootnote The man who was arrested at the UFFC march against deaths in custody was not DNA sampled. When he was transported to the custody suite at the back of a van, he was handcuffed in the back so could not sit properly and was not made to wear a seatbelt. I've asked details about the Safe transport of detainees on arrest. The custody suite at Marylebone police station where he was held was opened just for the occasion; the officer at the desk of the station didn't know the custody suite had been opened that day, the last time he remembered it being opened was for the students demonstrations. It is unclear whether this custody suite is visited by Independent Custody Visitors (ICV). Protocol 7 of Appendix G of the ICV handbook explains that the police should 'inform [the local ICV] panels promptly of any intended changes, closures or additions to custody facilities', however the published annual reports of the Westminster ICV panel do not mention the Marylebone station's custody suite. I've asked details about the Availability of custody suites & ICV visits.
GeneWatch UK has published an amazing analysis of the latest data on the National DNA Database released by the Home Office in September. In just five pages (including one page of references), the DNA database: analysis of offending figures (pdf) briefing debunks not only the misleading comments made following the release of the Home Office data, but also the misunderstanding of the individual cases mentioned to justify retention when they offer no such support. If you have the time to read only one document on DNA retention, this is one not to miss. Here are a few excerpts:
In September 2011, new data was released by the Home Office regarding the likelihood of future offending by persons who have been arrested for the first time. These figures have been used by critics of the Protection of Freedoms Bill to claim that “every year, 23,000 people, who under Labour’s system would be on a DNA database will, under government plans go on to commit further offences” and that this will allow 23,000 people to become victims of crime in the future. This claim is incorrect because it fails to take account of the limited role of the DNA database in solving crimes.
[...]
Using the higher figure of 36,000 persons a year estimated to be rearrested and sanctioned for a recordable offence following a first arrest with no sanction, it is possible to estimate how many of these crimes might have been solved using individuals’ DNA profiles, were they to be retained on the National DNA Database.
[...]
This amounts to about 28 convictions a year (including 8 for ‘Scottish List’ offences), because only about half of DNA detections lead to a conviction. Of these estimated 28 convictions a year, the majority would be delayed not lost since any future arrest of the individual would lead to a match being made between their DNA profile and the relevant crime scene DNA profile (which would be stored indefinitely if it did not match an individual’s profile when it was loaded onto the database).
[...]
Numerous individual cases have been cited in support of retaining innocent individuals’ DNA on the National DNA Database. However, closer inspection of these cases has repeatedly revealed that most would not be affected by proposals in the Bill. Over the ten year period since legislation was introduced to retain innocent people’s DNA profiles there have been no examples of murder cases cited in parliament or the press that would have remained unsolved had innocent people’s DNA profiles been taken off the database.
[...]
These cases suggest that “widening the net” to retain innocent individuals’ DNA profiles on the DNA database has been the wrong priority compared to taking DNA from known suspects for a crime.
Here's the summary of the DNA retention – Analysis of arrest-to-conviction data submission from the Home Office Economics and Resource Analysis Group to the Parliamentary Under-Secretary of State for Crime Prevention that is analysed by GeneWatch UK:
[The Economics and Resource Analysis Group] analysis of arrest-to-conviction data obtained from the PNC indicates that the time taken for the risk of conviction of individuals with no previous convictions who are arrested but not sanctioned to fall to the level observed in the general population is approximately three years. This assumes that DNA profiles are retained on arrest for all offences. If the scope of the provisions is restricted to ‘Scottish list’ offences with retention on arrest, the time taken for conviction risk to fall to the population level is 3¾ years. If scope is restricted to ‘Scottish list’ offences with retention only on charge, the time taken is 4¾ years (although this result is subject to significant uncertainty due to the small sample size).
We have also made provisional estimates of the outcomes of profile retention under each regime, assuming retention for three years. These suggest that restricting the scope of the retention provisions (from all offences on arrest to ‘Scottish list’ on charge) significantly reduces the number of ‘innocent’ profiles retained. The proportion of those profiles expected to receive a sanction before the end of the retention period does not change as scope is restricted, while the proportion of sanctions that are received which are serious (as defined by the ‘Scottish list’) rises slightly in absolute terms. Thus, the Scottish model appears to be effective in offering protection to individuals who are arrested but not sanctioned for any offence. The extent to which it is effective in ensuring that only the profiles of more ‘serious’ potential offenders are retained is debatable.
The Protection of Freedoms Bill is now in the Lords. For more details see:
Every year, 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, organises a march to Downing Street. The coalition published for the march an incomplete list of 3,180 individuals who have died in custody in the UK since 1969 including 225 in the past year (pdf).The march consists of a peaceful silent procession to Downing Street followed by speeches from members of families having lost a loved one in the hands of the state. This year, the thirteenth year it happens, was no different except for the increasing policing provocations.
The march went from Trafalgar Square to Downing Street via the South side of Whitehall, blocking the traffic on that side. There was still traffic driving through the North side. For the speeches we stopped on the South side in front of Downing Street. The police had formed a cordon to protect demonstrators from the traffic that kept flowing on the North side. Even though demonstrators were peaceful and trying to listen to the speeches, a police helicopter remained above for some time. Also during the speeches, the inspector in charge of this cordon ordered his constables to make an unnecessary step forward. Close to the end of the speeches, during the reading of the letter from the families to the Prime Minister, the inspector in charge showed his lack of respect by ordering his constables to make another unnecessary step forward slightly pushing people just when demands about how to improve policing to reduce deaths in custody were read out.
When representatives of the families went to the gate of Downing Street to symbolically attach a letter to the gate (as no one inside Downing Street is willing to accept their letter - as had already happened the previous year) police reinforcements arrived. Many of the other demonstrators than family members of those who died in custody had remained on the South side of Whitehall. Eventually most people went back to the opposite side of the road, and moved the pavement so that Whitehall could be completely re-opened to the traffic. When many more police reinforcements arrived outside the gates for no apparent reason, the many demonstrators who were by now on the pavement on the South side became obviously concerned and crossed Whitehall to support the families. More officers arrived and started to push people back towards the South side. Demonstrators sat on the road to peacefully prevent this further police provocation. Officers then started a kettle. Eventually everyone regrouped on the pavement; everyone except one man who had been arrested (and eventually released alive without charge from Marylebone police station -which custody suite had been opened just for the occasion- later in the evening).
The coalition is building a network for collective action to end deaths in custody and believes:
- That failure of State officials to ensure the basic right to life is made worse by the failure of the State to prosecute those responsible for custody deaths.
- That failure to prosecute those responsible for deaths in custody sends the message that the State can act with impunity.
It has a list of eight practical demands:
- Replacement of the Independent Police Complaints Commission (IPCC) to ensure open robust transparent and thorough investigations into police deaths in custody by a ‘truly’ independent body from the very outset of the death.
- Officers and officials directly involved in custody deaths be suspended until investigations are completed.
- Immediate interviewing of officers and all officials concerned with the death.
- Officers and officials should never be allowed to ‘collude’ over their evidence and statements of fact.
- Full disclosure of information to the families.
- Prosecutions should automatically follow ‘unlawful killing’ verdicts at Inquests and officers responsible for those deaths should face criminal charges, even if retired.
- Implementation of police body cameras and cameras in all police vehicles in the interests of both the officers and the public.
- The end of means testing of families for legal aid. There is a lack of funds for family legal representation at Inquests whilst officers and NHS staff get full legal representation from the public purse – this is unbalanced.
Bootnote See my earlier post, Deaths in custody, for links to reports and statistics on deaths in custody.
Update 2011-10-30 (and 2011-12-16)
Update 2011-10-31
Update 2011-11-02
Update 2011-11-04
Update 2011-11-05
Public
meeting on black deaths in custody
Date: 6.30 – 9.00pm on Wednesday 2011-10-26 at the LSE
Details and free registration: Black Mental Health
Speakers include:
2011 Annual march
against custody deaths
Date: 12:30pm on Saturday 2011-10-29 at Trafalgar Square and then to Downing Street
Details: United families and friends campaign, the campaign to end deaths and abuses in custody
The last conviction of a police officer following a death in custody was in 1971. At last year's march, the police refused to let the families deliver a letter to the Prime Minister
The following family campaigns will be attending:
4WardEver UK has detailed information on many of those who died and suffered abuse while in custody.
Visiting the custody
suites of police stations
In addition to supporting family campaigns, another action you can take is to volunteer as an Independent Custody Visitor (ICV). After joining an ICV panel in the borough where you live or work, your role is to make unannounced visits, with another ICV, to the police stations in the borough. During the visits you have chats with all the detainees that accept to see you (in their cells) and ensure that they have been informed of their rights, given the opportunity to talk to a solicitor, let someone know they are detained and have been treated fairly while in the custody suite. You can, and should, also check that the custody suite's CCTVs work, the showers have hot water, there's food available, etc. Any issue raised after a visit is answered by a senior police officer at the next panel meeting and further followed up if needs be. This scheme is statutory and managed by the local police authority, in London by the Metropolitan Police Authority. A limit of this scheme is that its remit is to look at the welfare of detainees only when they are in the custody suite. Having been an ICV for a year, I recommend readers consider applying to become independent custody visitors.
Statistical analysis
of all recorded deaths in state custody from 2000 to 2010
The Independent Advisory Panel on Deaths in Custody has published a statistical analysis of all recorded deaths in state custody between 1 January 2000 and 31 December 2011, broken down by ethnicity, gender, age and cause of death.
Although, the rest of this post focuses on deaths in police custody, this report covers deaths of persons detained in all types of state custody: in prisons, young offender institutes, police custody, immigration removal centres, approved premises, secure children's homes, secure training centres and also in hospitals when patients died while detained under the Mental Health Act. The report found that:
Update The Independent Police Complaint Commission also published a report Deaths in custody study last August. The research used completed investigations to gather data on all 333 deaths in or following police custody which occurred between 1998/99 and 2008/09.
Following the the European Court of Human Rights (ECtHR) decision in S. and Marper 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, [...] constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society', there has been two bills (the latest effort is in the Protection of Freedoms bill) and a case recently went to the Supreme Court, but the police still routinely hold on to DNA, fingerprints, palm prints, photographs and associated records of innocents.
On Tuesday the ECtHR will be publishing (on its website) its judgment in another case concerning the ineffective retention of the DNA and associated records of innocents:
Goggins and Others v. United Kingdom (nos. 30089/04, 14449/06, 24968/07, 13870/08, 36363/08, 23499/09, 43852/09 and 64027/09)
The applicants, Ciaron Goggins, John Day, Michael Jackson, Christopher Scott, Guled Michael, Carol Castley-Turner, Darren Coates and Jonathan Bennetts, are eight British nationals who were born in 1961, 1964, 1953, 1952, 1977, 1950, 1971 and 1971 respectively and live in the United Kingdom. Relying in particular on Article 8 (right to respect for private and family life), all the applicants complain about the collection and retention of their DNA samples, fingerprints and associated data despite either being acquitted of criminal charges brought against them or having criminal proceedings against them dropped.
An intriguing aspect of this case is that so little is currently publicly available about it. Searching the confusing ECtHR collections, the excellent British and Irish Legal Information Institute databases, and more general search engines currently returns only the press release announcing this week's forthcoming judgment. Hopefully, the judgment will not only address the substantive matter but also shed some light as to why so little information is available (or indexed) when this case must have gone on for several years winding its way through the UK and then European court systems.
Bootnote: Hat tip to reader CR for pointing out this case.
Update: The judgement has been published. The court unanimously decided 'it is appropriate to strike the cases out of the list in so far as they concern complaints related to the collection and retention of DNA samples, fingerprints and associated data and the retention of PNC records, without prejudice to the Court’s power to decide, pursuant to Article 37 § 2, to restore the applications to the list should the respondent State fail to enact the draft legislation [the Protection of Freedoms Bill] currently before Parliament.'.
As part of a research project challenging the image of Muslims being targeted by anti-terror laws, Ayesha Kazmi is looking into the many instances where non-Muslims are also targeted. The first outcome of this project is a series of interviews about counter-terrorism stop and search powers published by the human organisation Cageprisoners.
The first interview, published last April, was with Pennie Quinton:
In 2003, Kevin Gillan, a student at the time, attended a protest outside the Excel centre. Pennie Quinton, a photographer and journalist, was present at the same event, covering the protest as a member of the press. Both were stopped and searched by police.
After going through an exhaustive process of taking their case to domestic courts, and consistently losing their case, Pennie and Kevin finally took their case to the European Court of Human Rights – where they won and Section 44 of the Terrorism Act 2000 was declared illegal.
Ayesha Kazmi speaks to Pennie Quinton about her case and stop and search.
The second interview, just published, is an edited version of a conversation Ayesha and I had a few weeks ago:
3 weeks after the 7th July bombings, David Mery found himself caught in bewildering circumstances. With the nation on high alert for potential terrorism related plots, David found himself unwittingly subject to suspicion of terrorism. On 28 July, 2005, David was stopped and searched under Section 44 of the Terrorism Act by London police and subsequently arrested on his way to meet his wife after work.
It took 4 years for the Metropolitan Police to issue an apology to David for the wrongful stop, search and arrest.
The Civil Liberties Panel of the Metropolitan Police Authority (MPA) last year started a review of the use of DNA and the National DNA Database (NDNAD) by the Metropolitan Police Service. As part of its scrutiny effort, the MPA organised a public meeting on the National DNA Database and the use of DNA in policing (webcast, pdf transcript) I attended. The outcome of this review will be the publication next week of the report Protecting the innocent: The London experience of DNA and the National DNA Database. Preliminary information is already available on the MPA website (press release, report). Here are the recommendations as published in the final draft of the report (with some added links):
Recommendation 1: [section 3.3 of the report]
People who have their DNA taken should be provided with the following information in writing, at the point when their DNA is taken:
- Why their DNA has been taken and what this means for them:
- for those arrested for a recordable offence
- for those examined under Schedule 7 of the Terrorism Act 2000
- for those who volunteer to provide a DNA sample
- The circumstances in which DNA is retained and for how long (both the sample and the profile)
- Where their DNA samples will be stored.
- How and in what circumstances an individual can apply to have DNA removed from the Database including clear guidelines on the framework for decision making.
- Who has access to their DNA record and the safeguards in place to protect this information.
- Who has knowledge that their DNA has been taken.
- Authoritative sources of further information (e.g. MPS / NPIA website). [GeneWatch UK should be included]
Recommendation 2: [section 3.4 of the report]
The MPS should demonstrate through their community engagement work, how they will raise understanding of, and public confidence in, the use of DNA in policing.
Recommendation 3: [section 3.6.3 of the report]
Where the police take an individual in need of immediate care or control to a police custody suite as a place of safety as set out under section 136 of the Mental Health Act 1983 (as opposed to the individual being arrested for a recordable offence), the MPS should ensure that their DNA will not be taken.
Recommendation 4: [section 3.6.5 of the report]
The MPS should undertake a full Equality Impact Assessment (EIA) on the use of DNA within the MPS to address the impact of the use of DNA and the DNA Database on communities within London. This should seek to identify any disproportionality and include details of specific actions the MPS will take to address issues identified. It should be reviewed on a regular basis.
Recommendation 5: [section 3.6 of the report]
In relation to the management of DNA within MPS custody suites, the MPS should:
- Agree a clear process outlining how and when DNA samples are to be taken, processed and retained within custody.
- Train all officers and staff responsible for taking a DNA sample to ensure the procedure is undertaken correctly.
- Develop an agreed chart detailing each step of the process which should be prominently displayed in every MPS custody suite (accessible to both MPS personnel and arrestees). This chart should be dated and subject to regular review.
- Ensure that this agreed procedure is strictly adhered to across all MPS custody suites.
- Ensure that any deficiencies identified through the HMIC/HMIP custody suite inspections in relation to the management of DNA are addressed.
Recommendation 6: [section 3.6 of the report]
For all suspects arrested following a match on the DNA database between their DNA profile and an unsolved crime stain, it is MPS practice to take a confirmatory DNA sample from the suspect on their arrest. This is resource intensive and not standard practice across all forces. Therefore the MPS should provide a rationale for this including the costs for undertaking this practice.
Recommendation 7: [section 4.4 of the report]
The MPS should put in place procedures to ensure the removal of personal and demographic details prior to sending DNA samples to the forensic service providers.
Recommendation 8: [section 4.5 of the report]
In relation to volunteer samples taken for elimination purposes, the MPS should ensure forensic service providers are informed when the criminal justice process has been concluded to ensure the DNA sample and corresponding DNA profile are no longer required and can be destroyed.
Recommendation 9: [section 6.4 of the report]
The MPS should specify how MPS budgets will be impacted by the provisions within the Protection of Freedoms Bill. This should detail immediate and ongoing cost obligations.
The MPA gives three months to the police to respond:
The Panel ask that the MPS begin the implementation of our recommendations immediately. We have made it clear that our recommendations are both necessary to increase public confidence and complementary to the provisions in the Protection of Freedoms Bill. The Panel therefore request that the MPS respond to our recommendations within three months of the publishing of this report with a timetable for implementation. These will then be reviewed by the Civil Liberties Panel.
The Metropolitan Police has just published version .5 of
its Exceptional Case Requests - Consideration
for the Removal of DNA, Fingerprints and PNC Records (pdf).
This document states that they don't have taken the hint from the Supreme
Court, and are keeping the status quo, i.e., retaining all the DNA
profiles they collect:
The Criminal Justice and Police Act 2001 amended the Police and Criminal Evidence Act 1984, providing the police in England and Wales with the power to retain Deoxyribonucleic Acid (DNA) samples and fingerprint records relating to individuals following acquittal at court or any other discontinuance of a case.
The Criminal Justice Act 2003 amended the Police and Criminal Evidence Act 1984, providing the police in England and Wales with the additional power to take DNA samples and fingerprint records from all persons detained at a police station having been arrested for a recordable offence.
Both sets of legislation are permissive and, therefore, allow Chief Officers the opportunity, in exceptional circumstances, to exercise discretion and accede to requests from individuals for their DNA samples and fingerprint records to be destroyed, together with the deletion of the supporting entry on the Police National Computer (PNC).
In December 2008 the European Court of Human Rights (Grand Chamber Judgement), found against the UK in that there has been a violation of Article 8 in respect of the retention of DNA samples and fingerprint records from persons suspected but not convicted.
In line with the Supreme Court decision of 18th May 2011 in the cases of C and GC v The Commissioner, and based on legal advice, the MPS will continue to process exceptional case requests in accordance with the ACPO policy of 16th March 2006. We will do so until Parliament introduces a new legislative scheme. [emphasis added]
The exceptional case request process is summarised in the included diagram, which comes from Appendix 2 of the Management of Police Information (MoPI) Guidance - Step model - Retention Guidelines (pdf). These guidelines are issued by the private company Association of Chief Police Officers (ACPO) and nothing is preventing the ACPO to change them to make it easier for innocents to get off the National DNA Database (NDNAD). Even though, they are intent to make the process difficult:
Although exceptional cases will be extremely rare the circumstances will be considered and a Commander from the Specialist Crime Directorate (SCD) will make the final decision on behalf of the Commissioner.
They might include cases where the original arrest was found to be unlawful or inordinate. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional case.
If you are one of the estimated 1,083,207 plus persons whose DNA profile is on the National DNA Database but who do not have a current conviction, caution, formal warning or reprimand recorded on PNC, head to the Reclaim your DNA website and follow the advice on how to proceed to make the police consider how exceptional your case is. Be persistent as by default the initial request for deletion is refused.
The only positive of the current system is that if you succeed to have your case considered exceptional, then your Police National Computer (PNC) record will be destroyed as well as your fingerprints and DNA profile and samples. The Protection of Freedoms Bill does include measures to destroy the DNA of innocents, but lacks any provision to delete associated PNC records and photographs. Lobby your MP to improve this bill.
Among the mass of documents collected by the Independent Police Complaint Commission (IPCC) during the investigation about my arrest, I noticed the following paragraph on a page titled 'Meeting at IPCC on 25 July 2006':
CCTV has gone missing or was not seized. Log shows that CCTV seized by BTP [British Transport Police] on 29/7[/2005]. [Detective Inspector] DI P is in the process of trying to establish whether this was OBO the Met.
I had tried in August 2005 – without success – to get a copy of the CCTV footage of my unlawful detention in Southward tube station, from the Metropolitan Police, the British Transport Police (BTP) and Transport for London. According to the paragraph above, there was a chance the footage was still held by the BTP, so last month I sent a subject access request to the Data Protection Registrar of the BTP.
A Data Protection Officer from its Information Standards Unit explained they didn't have it:
I am writing in response to your request for CCTV footage regarding an incident that took place on 28 July 2005.
I have made enquiries and have been informed that British Transport Police (BTP) do not hold the requested CCTV footage. The footage may have been requested by BTP from Transport for London but it would subsequently have been handed over to the Metropolitan Police as part of their investigation.
Unfortunately I do not have any information regarding a hand over of CCTV footage from MTP [sic, obviously BTP] to the Met Police and am only surmising a possible reason for why we do not hold the requested information.
Even though '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', the IPCC-supervised investigation established that the Metropolitan police officer in charge failed to seize the CCTV footage. I replied explaining that a hand over never happened and hence couldn't be the reason they don't have the footage. I further asked for a confirmation of how and when the BTP stopped holding this CCTV footage, and the BTP retention period policy for CCTV footage. The Data Protection Officer replied:
As mentioned I could not locate any information regarding the holding and retention of the footage. The retention period for holding data is usually 6 years.
We are still within BTP's six year retention period for CCTV footage, but they don't have it or any record about where it might have gone.
Is this disappearance exceptional? Is it a common occurrence for CCTV footage that may expose police misstatements? Or is it routine? I do not hold this information.
The Supreme Court ruled (press release & judgement pdfs), by a majority, that the guidelines issued by the Association of Chief Police Officers (ACPO), which provide that Police National Computer (PNC), fingerprints and DNA records should be destroyed only in exceptional cases, are unlawful because they are incompatible with the right to respect for private and family life. However, as Parliament is currently reviewing the Protection of Freedoms Bill, the Supreme Court decided 'it is not appropriate to make an order requiring a change in the legislative scheme within a specific period or an order requiring destruction of data'.
In DNA retention judgment won't see discriminatory policy destroyed, Anna Fairclough, legal officer at Liberty, sums up the impact of this ruling for all the innocents whose DNA and associated records are retained by the police: 'So, although the declaration of illegality is welcome, the judgment will make little practical difference for the hundreds of thousands of people whose DNA is – admittedly – unlawfully retained, who will have to wait even longer to compel the police to destroy it.'
While Parliament scrutinises the bill, the court remarked that 'It is, however, open to ACPO to reconsider and amend the guidelines in the interim'. In its latest communication (pdf) to the Committee of Ministers monitoring the implementation of the S. & Marper ruling, the government explained that although 'it would be inappropriate for the police to start removing the profiles of unconvicted people from the National DNA Database at this stage [...] Nonetheless, given the broad political consensus within the UK Parliament around the Government’s proposal to destroy all biological DNA samples within six months of being taken, the Government has asked the police to explore the possibility of making a start to the destruction of samples before the passing into law of the Protection of Freedoms Bill.' [emphasis added] The government has suggested this interim destruction of DNA samples for close to a year, so even that is unlikely to happen until the bill is finalised.
The Protection of Freedoms Bill includes clauses about the deletion of fingerprints, and DNA samples and profiles, however amendments are still required to ensure that PNC records and photographs of innocent people will be deleted as well.
Following the halting eight months ago of the counter-terrorism powers to stop and search without the need for any reasonable suspicion, the Home Secretary announced that these powers are back, but with some changes. To make the changes effective immediately, Theresa May used an 'urgent remedial order', a type of statutory instrument that is 'made without being approved in draft' and that ceases to have effect after a period of 120 days unless it is approved by each House. Changes similar to this remedial order are part of the Protection of Freedom Bill, which is going to Committee stage this coming Tuesday.
The Terrorism Act 2000 (Remedial) Order 2011 concerns the powers of police officers to stop and search pedestrians and vehicles without needing any suspicion. It replaces sections 44 to 47 of the Terrorism Act 2000 (these are in effect repealed) with a new section 47A. Like the previous sections, for police officers to be authorised to use these stop and search powers, a prior authorisation for a specified area must be in place. A key change is that to give an authorisation, a 'senior office officer' must 'reasonably suspect that an act of terrorism will take place; and consider that (i) the authorisation is necessary to prevent such an act; (ii) the specified area or place is no greater than is necessary to prevent such an act; and (iii) the duration of the authorisation is no longer than is necessary to prevent such an act.' Previously the threshold was much lower as an authorisation could have been given 'if the person giving it considers it expedient for the prevention of acts of terrorism.'
The higher threshold of necessity is clearly an improvement, but how will it be enforced? Authorisations must be confirmed by the Secretary of State to last more than 48 hours and can be for no more than 14 days. Previous Secretary of States have practically rubber stamped section 44 authorisations and nothing is preventing this to happen with the new section 47A ones.
There is no mechanism in place to publish any part of these authorisations. Since 2007, SpyBlog has been 'asking [under the Freedom of Information Act] to be published [to no avail] the bare minimum laid down in the text of the Terrorism Act 2000 sections 44 and 45 and 46 i.e. the time and duration and geographical location of each Authorisation to suspend the normal rule of law regarding Stop and Search Without Reasonable Suspicion.' This continued lack of publication will make it extremely difficult to find out if these new powers are abused in a similar manner to the ones they replace and for those stopped and searched to find out whether the stop and search was lawful.
Much detail about how the Secretary of State intends these powers to be used can be found in 'a robust statutory code of practice' (pdf, 49 pages) containing guidance about 'the exercise of the powers to give an authorisation' and 'the exercise of the powers conferred by such an authorisation'. The Home Office has also published a document containing an explanatory memorandum (7 pages), an equality impact assessment (23 pages) and some 'required information' (7 pages).
Innocents may again be stopped and searched just on the off chance that they are or have 'been concerned in the commission, preparation or instigation of acts of terrorism' as long as a senior officer found it necessary to authorise the use of these powers in the area they happen to be passing by.
Bootnote 1 The Metropolitan Police Authority is running a consultation until the end of the month to find out 'if Londoners want their police officers to continue recording stops and accounts.' Whether this recording continues has been made optional for each police force by the Crime and Security Act 2010. Another change introduced by this act is to reduce the time one can ask for the record of a stop and search from twelve to three months.The latest statistics for stop and search, and stop and account by the Metropolitan Police are for February (pdf).
Bootnote 2 Other powers to stop and search without needing reasonable suspicion include schedule 7 of the Terrorism Act 2000: the power to stop, question, detain (up to nine hours) and search individuals at port and border controls, and section 60 of the Criminal Justice and Public Order Act 1994: the power 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.
At the end of 2010, there were 6,074,433 subject profiles on the national DNA database (NDNAD). James Brokenshire provided further updated figures in a written parliamentary answer:
The most recent figures available for England and Wales show that at 31 March 2010 there were an estimated 4,946,613 persons on the NDNAD, of whom 22% (an estimated 1,083,207 persons) did not have a current conviction, caution, formal warning or reprimand recorded on PNC.
The Protection of Freedoms Bill had its first debate in the House of Commons and a few days earlier, Shadow home secretary Yvette Cooper attempted to score some political points with Guardian readers. Helen Wallace, director of GeneWatch UK, wrote a letter correcting some of her misunderstandings:
New DNA rules will restore public trust
Shadow home secretary Yvette Cooper (Relaxing DNA rules could reduce rape convictions, 28 February) claims that the DNA database proposals in the protection of freedoms bill would lead to 1,500 fewer DNA detections a year, many of these for rape.
She is quite simply wrong. Her calculations rely on the same discredited method used by the Home Office when Labour was still in power. This contains four major errors.
First, only a minority of detections rely on matching a new crime-scene DNA profile loaded to the database with a stored DNA profile from an individual: the rest match newly added individual profiles to stored crime-scene DNA profiles and will not be affected by the proposed changes in the law. Second, most crimes – as she notes – are committed by reoffenders, not the people without previous convictions whose records the bill plans to remove.
Third, only about 1% of crimes detected using the database are rapes, most are not committed by strangers and many are not resolved by DNA identification because consent is disputed. Fourth, the bill has been drafted carefully to account for those rare cases where a man suspected but not convicted of violence against women goes on to commit a stranger rape, by allowing a temporary retention period of three to five years for persons accused of serious offences. This will minimise the chance that any rapes go undetected.
By making better use of limited resources and restoring loss of public trust, the proposals in the bill are good for victims as well as a major step towards improving human rights.
Chris Pounder at Hawktalk sums up the Information Commissioner’s evidence to the Public Bill Committee on the Protection of Freedoms Bill. Here are some of the concerns about the DNA database:
“The Information Commissioner believes that there is no justification for the police to continue to retain a PNC identity record which is linked to other biometric records that the police are required to delete having served their purpose”.
The Commissioner is also concerned “that there is no facility available for individuals to request deletion of their DNA and fingerprints”.
In relation to the National DNA Database Strategy Board that governs the use of DNA, the ICO notes that “there are other interests (to be) reflected in the composition of the Board rather than just comprising of representatives of the law enforcement community”. This is a stark warning that DNA governance could well be dictated by the needs of the law-enforcement community under the supervision of the Home Office.
All I add is a simple comment: “well this is exactly what one would expect the Home Office to do!”.
More facts and figures, published by GeneWatch, can help you spot the many misinformed mistakes repeated by some politicians and journalists. There are plenty of ways having one's DNA profile retained can affect the life of an innocent.
The Home Office has eventually published the Protection of Freedoms Bill. It is to be welcomed as it includes measures restoring some of our rights, however these positive measures do not signal a radical change. An innocent who has been arrested unlawfully will still be criminalised unless the bill is substantially improved. He will soon be able to reclaim his DNA, but not his photographs or his Police National Computer (PNC) record. Anyone suspected of terrorism will be subject to exceptional counter-terrorism measures not just to criminal law; national security determinations, which have to remain secret by definition, allow further regimes of exception.
Getting the police to accept that one's case is exceptional under the current exceptional procedure is fraught with difficulty. The few who have succeeded, have had their PNC record as well as their DNA profile deleted, and their DNA samples and fingerprints destroyed. It is essential that the bill is amended to keep deleting PNC record when DNA profiles are deleted. Having a PNC record can affect employment prospects in some jobs requiring vetting, and travel to some countries such as the USA. Having a PNC record with a mention that your DNA has been taken is enough for some police officers to consider you guilty. There's clearly a stigma attached to having a PNC record and innocents must not be criminalised.
Retention of photographs can also affect the life of innocents in traumatic ways. A couple of years ago, someone told me by email how his family had to eventually move as a consequence of the police retaining his mugshot and using it in id parades for local crimes. His mugshot had been taken when he was previously arrested, but the charges were eventually dropped. His mugshot was shown to the victim of a local crime who was immediately drawn to his picture. He was arrested and bailed. The victim was a neighbour who told him a few days later, 'She had no idea she had picked me out of the faces she just went for a face she had seen somewhere; anyway the matter was resolved and there was no further action taken.' The police refused to delete his mugshot. A few weeks later another person he knew asked him why his mugshot had been shown to her by the police when reporting a crime. Rumours spread; name calling and graffiti on his car ensued and he felt he had to move to protect his family. Hopefully this is an unusual case as one would expect id parades to be better handled, but it demonstrates that retaining mugshots of innocents can lead to criminalisation and stigma.
An individual's life who has been arrested and is innocent should not be further affected by an arrest after the police has stopped pursuing the matter. All records associated with the arrest should be deleted.
Making sense of the bill
This bill is complex and difficult to read. It covers many topics: DNA retention, CCTV / ANPR, vetting, stop and search, etc. This post mainly focuses on points of serious concerns about the DNA clauses; follow the included links for more detailed analyses of the bill.
The million of innocent individuals whose DNA is currently on the National DNA Database must be keen to learn when their records will be deleted, however an attentive reading will not provide a straight answer. An order to destroy existing relevant biometric material has to be made before the commencement of the legislation, but there's no time limit for when the destruction must to be completed by. (Until the bill becomes legislation, visit ReclaimYourDNA.)
The following comparative table of DNA profile retention periods is extracted from the table included in the bill's explanatory notes:
Occurrence Current System (E&W) Scottish System Proposed changes under the Bill ADULT – Conviction – All Crimes Indefinite Indefinite Indefinite ADULT – Non Conviction – Serious Crime Indefinite* 3 Years + possible 2-year extension(s) by Court 3 Years + possible single 2-Year extension by Court
[The bill does not appear to limit the number of extensions]
ADULT – Non Conviction – Minor Crime Indefinite* None None† UNDER 18s – Conviction – Serious Crime Indefinite Indefinite Indefinite UNDER 18s – Conviction – Minor Crime Indefinite Indefinite 1st Conviction – 5 Years (plus length of any custodial sentence);
2nd Conviction – indefiniteUNDER 18s – Non Conviction – Serious Crime Indefinite* 3 Years + possible 2-year extension(s) by Court 3 Years + possible single 2-Year extension by Court
[The bill does not appear to limit the number of extensions]UNDER 18s – Non Conviction – Minor Crime Indefinite* None None† Terrorist suspects Indefinite* Not covered (reserved matters) 3 Years plus renewable 2-year period(s) on national security grounds Biological DNA Samples Indefinite* As per destruction of profiles Within six months of sample being taken * Destruction of DNA profiles and biological samples is available under ‘exceptional circumstances’. This requires an application to the Chief Constable of the relevant police force; removal from the database is then at his/her discretion in accordance with guidelines issued by the Association of Chief Police Officers.
† In all cases, a speculative search of the DNA and fingerprint databases may be conducted before destruction.
The table clearly shows how the government followed the Scottish approach. One has to be careful in following the explanatory notes as they are not part of the bill: if the bill is not amended to clearly restrict to a single possible two-year extension the retention period for the DNA profile of an innocent who has been arrested for a serious crime, then extensions may be automatically renewed multiple times. The way stop and search authorisations under Terrorism Act 2000 have been abused in the past shows intentions can't be trusted, the text of the bill must include safeguards.
GeneWatch UK does a great job of explaining the bill in plain English on its Freedom Bill page, which also include links to its Parliamentary briefing (pdf) and to a page about What you can do. The Civil Society Advice Group's briefing explains the bill clause by clause (pdf). Other briefings include Justice (pdf), Liberty (pdf) and ARCH (pdf). Cian Murphy commented on the bill at the UK Human Rights blog, and Panopticon focuses on three issues.
Bootnote: As Privacy International's Gus Hosein pointed out in Who will remember the privacy advocates?, many of the achievements found in this bill are the result of the perseverance of privacy advocates. Support your favourite privacy organisations!
This post is a follow up on Interim situation to continue a bit longer for DNA retention about the progress made regarding the general obligations binding the UK following the unanimous ruling against it in the European Court of Human Rights (ECtHR) two years ago.
Obligation of cessation
The UK is still to put an end to the breach identified by the ECtHR, the obligation of cessation. Back in 2008, in Don't delay: Delete your DNA today, I suggested that no legislative change was necessary to comply with this obligation, a simple amendment to the Association of Chief of Police Officers (ACPO) regulations would have sufficed. The police took no such action and still retain, for an indefinite period, DNA of as many individuals - innocent and guilty alike - as they can collect.
The ECtHR ruling is binding on the UK, but not on the police forces (as confirmed in the [2010] EWHC 2225 (Admin) and [2010] NIQB 143 cases). The forces can make voluntary changes, but are otherwise bound by the House of Lords decision in the appeal of S and Marper v. the Chief Constable of South Yorkshire Police. The coalition government is considering using legislation introduced by the previous government, but still to be enacted, to progress this issue. Home Office Minister James Brokenshire announced in Parliament:
The Government are committed to adopting the protections of the Scottish model for DNA retention. In particular, we are examining whether the provisions of section 23 of the Crime and Security Act 2010 should be brought into force. This would empower the National DNA Database Strategy Board to issue binding guidance to chief police officers on the types of case in which deletion would be appropriate.
We will bring forward our detailed proposals shortly.
and that section is
23 National DNA Database Strategy Board
- The Secretary of State must make arrangements for a National DNA Database Strategy Board to oversee the operation of the National DNA Database.
- The National DNA Database Strategy Board must issue guidance about the immediate destruction of DNA samples and DNA profiles which are, or may be, retained under (a) the Police and Criminal Evidence Act 1984, or (b) the Police and Criminal Evidence (Northern Ireland) Order 1989.
- The following must act in accordance with any guidance issued under this section (a) any chief officer of a police force in England and Wales; (b) the Chief Constable of the Police Service of Northern Ireland.
- The Secretary of State must publish the governance rules of the National DNA Database Strategy Board and lay a copy of the rules before Parliament.
- The National DNA Database Strategy Board must make an annual report to the Secretary of State about the exercise of its functions.
- The Secretary of State must publish the report and must lay a copy of the published report before Parliament.
- The Secretary of State may exclude from publication any part of the report if in the opinion of the Secretary of State the publication of that part would be against the interests of national security.
If the government does use this mechanism, an obvious concern is that Parliamentary scrutiny may be avoided using the overused excuse of national security. (In Interim situation to continue a bit longer for DNA retention I suggested another section that is a good candidate to be enacted, as mostly uncontroversial: section 64ZA detailing the destruction of the physical DNA samples within six months of when they are taken.)
Obligation of non-repetition
New legislation is necessary to prevent any further violations in the future; the obligation of non-repetition. The coalition government keeps repeating that it will adopt the protections of the Scottish model in its Freedom Bill - with no further additional details. How significant the planned changes to primary legislation will be is not yet known, but they will have to be sufficient to be acceptable by the Committee of Ministers when it next reviews UK's compliance with Strasbourg's rulings.
Further pressure may come from the Supreme Court as it is to hears tomorrow two cases that will be an opportunity to revisit the opinions it expressed in its decision in S and Marper in 2004 when it was still sitting in the House of Lords. The two cases are 'R (on the application of GC) (FC) (Appellant) v The Commissioner of Police of the Metropolis (Respondent)' [UKSC 2010/0173] and 'R (on the application of C) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent)' [UKSC 2010/0186] and deal with the following issue:
Issue: Whether the continued retention of the DNA, fingerprints and a photograph of GC and of the DNA, fingerprints and information on the police national computer in respect of C, violates their rights under Article 8 of the European Convention on Human Rights.
Facts: The Association of Chief Police Officers’ 2006 guidance gives Chief Officers the discretion to delete information on the police national computer (‘PNC’) and to destroy DNA and fingerprints, ‘in exceptional cases’. In S and Marper v United Kingdom (2009) 48 EHRR 50, the European Court of Human Rights held that the United Kingdom’s powers of retention of biometric samples gave rise to a disproportionate interference with Article 8 rights. The Respondent acknowledged this decision but said that until Parliament changed the law, his policy would not change. The Government has indicated an intention to change the law in this area. The Respondent continues to retain DNA, fingerprints and a photograph of GC, which were taken when he was arrested in December 2007 on suspicion of an offence in relation to which no further action was taken. The Respondent continues to retain DNA and fingerprints of C, as well as information about him on the PNC, following his arrest in March 2009 on suspicion of offences, in respect of which either no further action was taken or the prosecution offered no evidence at trial. The Divisional Court dismissed the applications for judicial review on the basis that it was bound by the decision of the House of Lords in R(Marper) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196.
The 2004 Lords ruling was a majority four-one decision. The 2008 judgement was delivered unanimously by the Grand Chamber seventeen judges of the ECtHR. The Supreme Court considers the issue it will have to decide upon complicated enough that seven Lords, two more than usual, will hear the case: Lord Phillips, Rodger, Brown, Judge, Kerr, Dyson and Lady Hale. Lords Rodger and Brown, and Lady Hale were sitting in the House of Lords in 2004 for the S and Marper ruling; Lady Hale had the dissenting opinion.
Bootnote 1: Earlier this week, the BBC in its current Justice - a citizen's guide season showed The Highest Court in the Land: Justice Makers (still available on iPlayer), a documentary about the Supreme Court with interviews of Lord Hope, Phillips, Kerr and Lady Hale.
Bootnote 2: The Supreme Court hearings are filmed, but unfortunately the videos are only 'available to mainstream broadcasters and educational establishments' for cost reason. Adam Wagner on the UK Human Rights blog asks 'It would be useful to know how much it would cost to convert all of the footage automatically. It does sound like a task which could be automated, but who knows.' If you do know and are in a position to help make this happen, please do get in touch with Adam Wagner who has implicitly volunteered to liaise with the Supreme Court on this!
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