Home Secretary Jacqui Smith delivered a speech titled 'Protecting rights, protecting society' to the Intellect Trade Association on 2008-12-16. It is one of her most perverse speeches that demonstrates either a lack of understanding of the issues she's dealing with or dangerous vacuous doublespeak policy statements, or both. I recommend you check out the following excellent analysis:
'Balance' is mentioned eight times, 'balancing' once; here's a word frequency analysis of the speech (created with Wordle):
Two weeks earlier, on the same day the ECtHR ruled against the UK, Thomas Hammarberg, CoE Commissioner for Human Rights presented a rather different view in the issue paper 'Protecting the right to privacy in the fight against terrorism':
We are rapidly becoming a “Surveillance Society”. This is partly the result of general technical and societal developments, but these trends are strongly reinforced by measures taken in the fight against terrorism.
In the context of the fight against terrorism, this means individuals are at risk of being targeted for being suspected “extremists” or for being suspected of being “opposed to our constitutional legal order”, even if they have not (yet) committed any criminal (let alone terrorist) offence.
“Targets” of this kind are moreover increasingly selected through computer “profiles”. Even if some may be caught, there will always be relatively large numbers of “false negatives” - real terrorists who are not identified as such, and unacceptably high numbers of “false positives”: large numbers of innocent people who are subjected to surveillance, harassment, discrimination, arrest - or worse. Freedom is being given up without gaining security.
In addition, increasing use is made of non-criminal, yet effectively punitive, “administrative” measures against identified suspected “extremists” or new-type “enemies of the State”. This robs them of fundamental safeguards, both against the specific measures taken against them and, as groups, against such discrimination. It leads to alienation of the groups in question, and thus actually undermines security.
In the process, all of us are increasingly placed under general, mass surveillance, with data being captured on all our activities, on-line or in the “real” world. Such general surveillance raises serious democratic problems which are not answered by the repeated assertion that “those who have nothing to hide have nothing to fear.”
Earlier this month, 17 judges on the Grand Chambers of the European Court of Human Rights (ECHR) ruled unanimously that the UK is in violation of the right to respect for private and family life (Article 8) by retaining the fingerprints, DNA samples and profiles of Messrs S and Marper. Mr S was arrested at the age of 11 and charged with attempted robbery. Mr Michael Marper was arrested and charged with harassment of his partner. Both were arrested in 2001, and both had their fingerprints and DNA samples taken. Later that same year Mr S was acquitted and the case of Mr Marper was formally discontinued, as he and his partner had become reconciled and the charge was not pressed.
The court found
that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.
Let's look at the consequences of this ruling. What you can you do - as soon as you've finished reading this article - and what is the likely impact on legislation and policies?
Don't delay - delete your DNA today
The ruling clearly affects the retention by England, Wales and Northern Ireland police forces of fingerprints and DNA samples, and derived DNA profiles of both those who have been acquitted and those for which a decision of no further action (NFA) was taken. If you are among the estimated 573,639 to 857,366 innocents whose DNA profile is on the National DNA Database (NDNAD), you should act now. Don't wait until the time the police will have to weed out these records and samples.
Writing to the chief of police
The first step is to write to the chief of police of the force that arrested you. This may seem obvious, but several responses to freedom of information (FOI) requests we sent out as part of the research for this article, before the outcome of the S and Marper UK case was known, reveal that few individuals have gone to the trouble of asking.
At one extreme, the Warwickshire Police force has not received any requests in the last three years even though they contributed 12,263 DNA profiles to the NDNAD in the same period. At the other end of the scale, the Metropolitan Police, which in the past three years has contributed 85,305 DNA profiles, close to a fifth of the DNA profiles added by all English and Welsh forces to the NDNAD, received only 23, 64 and 110 requests for the removal of DNA profiles from the NDNAD, and granted 11, 18 and 21 of these respectively for 2006, 2007 and 2008 (up to the end of November).
Even though the West Midlands Police has in recent years arrested for recorded crimes about a third the number the Met has, it has received a similar number of requests for removal: 58, 49 and 83, and granted 25, 7 and 28 of these respectively for 2006, 2007 and 2008 (to November 21). For forces with fewer arrests such as the Cheshire, Durham or Gwent Constabularies, you can count the number of requests granted, since recording them started, on one hand. Police guidelines (the Retention Guidelines for Nominal Records on the Police National Computer) ensured that received requests to get off the NDNAD were granted only exceptionally. As a consequence of the ruling, the exceptional will have to become the norm.
Several forces do not keep a tally of the requests they receive. For example, the Northamptonshire Police responded to our request for details: "There is no single database holding the information requested. Some information may be held on individual custody records but manual examination would take the request over the cost limit and any results would not be conclusive in any case." One force, the Derbyshire Constabulary decided "As a result of your request [I] have asked the staff who deal with exceptional cases to consider making a record of requests and decisions."
Dr Helen Wallace, Director of GeneWatch UK, a not-for-profit organisation that monitors developments in genetic technologies from a public interest perspective, which provided expert evidence on behalf of Messrs S and Marper to the ECHR, commented on the ruling: "[This] landmark decision vindicates all those innocent people who have struggled to get their DNA destroyed. It means that there must be strict new rules to limit DNA retention and prevent misuse."
How to write a formal request
Having decided to write to request destruction of your fingerprints and DNA samples, deletion of your DNA profile and deletion or updating of any other database records linking to this information, the next step is to figure out what you should write. You need to include enough information so the police can identify you, the circumstances in which you were arrested (and your fingerprints and DNA samples were taken), details of the NFA decision or of your acquittal, and the reason you are requesting your records to be deleted and your samples to be destroyed.
This initial letter doesn't have to be long but it must be precise otherwise the police won't be able to deal with it. In its FOI response, the Cheshire Constabulary explained that it "receives numerous 'requests' for the removal of DNA, [t]he majority of which could not be considered formal request as when asked why we should consider their request, they simply do not respond or they actually mean something different. We would seek to clarify requests to establish the identity of the requestor and the reasons why they are requesting removal of data. This is well before we can actually consider the merits of a request and whether or not it fits the requirements of the Exceptional Cases procedure."
GeneWatch suggests this as a reason to "[a]sk for them to remove your records and destroy your DNA in the light of the judgment of the European Court of Human Rights". You may want to send a copy of the letter to your MP and a copy of any reply to GeneWatch (and let us know how it goes as well).
Another suggestion is that you may also want to argue for the police to remove your records and destroy your DNA samples in "other cases (e.g. cautions, final warnings, spent minor convictions)". Although the ECHR decision only covers people who have not been convicted, it makes clear that an interference with personal informational privacy such as the retention and use of profiles and samples must be indispensable and proportionate with the legitimate aim of the criminal justice system (i.e., the seriousness of the offence).
The Court cannot, however, disregard the fact that, notwithstanding the advantages provided by comprehensive extension of the DNA database, other Contracting States have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life... The Court considers that any State claiming a pioneer role [as the UK is] in the development of new technologies bears special responsibility for striking the right balance in this regard.
If you're in a situation where you find this balance has not been achieved, for example the indefinite retention for children given reprimands, then you may also benefit from this ruling.
Taking into account the ECHR ruling, the police are now likely to accept all legitimate requests as they would be in a very weak position if an innocent person were to seek a judicial review in case of refusal. Due to the small number of requests granted prior to the ruling, the actual deletions from the NDNAD and the Police National Computer (PNC) and destruction of samples is a very ad-hoc process. The Met promised a process last year and eventually did publish one (pdf), but it was not worth the wait.
Here's the process they go through: "If the decision to delete has been made, the Exceptional Cases Unit will contact the respective departments and agencies to ensure that the DNA, fingerprints and PNC records are deleted/destroyed accordingly."
The National Police Improvement Agency (NPIA) realises that "following the judgement last week in the S & Marper case heard at the European Court of Human Rights the DNA sample retention and destruction requirements are being reviewed." At least, once a DNA profile has been deleted from the database, it would appear that these transactions are propagated to all backups in short time:
The NDNAD has both a regular internal and a regular off-site back-up procedure. All transactions carried out on the NDNAD are backed up each working day. The deletion of profiles from the NDNAD would be treated the same as any other NDNAD transaction within this back-up procedure. Any record of a DNA profile will also be removed from all back-up media within 10 days of its deletion from NDNAD.
Until a comprehensive process is published giving stronger confidence in the deletion process, once you get confirmation that your request has been granted you may want to ask to be present when the physical samples are destroyed and electronic data is deleted and updated. If you go for this, ask speedily or possibly even with your request letter, as in my case the deletion process was started before informing me of the decision!
Observing the process by a large number of individuals would be costly in time and money; an easier alternative would be for the labs used by the police to generate DNA profiles from the samples taken from individuals to systemically destroy the DNA samples once a DNA profile has been derived. The DNA samples are not used for identification.
Changes of legislation and policies
What does the ECtHR ruling change for the government and the police? Article 44 of the European Convention of Human Rights (ECHR) states that the "The judgment of the Grand Chamber shall be final" and article 46 that "The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties" - so the UK government can't ignore this ruling. Jack Straw confirmed in Parliament that "The judgment... goes on to suggest that distinctions should be made between the nature of offences for which samples have been taken, and discusses whether they should be time-limited and whether there should be an independent review. Those matters will be considered by my right hon. Friend the Home Secretary in consultation across Government. We have an obligation to report initially to the Council of Ministers and the Council of Europe by March."
The Joint Committee on Human Rights explained the mechanism of abiding by such rulings in its 31st report:
The UK has undertaken to give effect to the ECHR and to give effect to the judgments of the ECHR. The UK must abide by ECHR judgments by: (1) putting an end to the breach identified by the Court (the obligation of cessation); (2) preventing any further violations in the future (the obligation of non-repetition); (3) repairing the damage caused to the individual (the obligation of reparation); (4) paying to an individual applicant any award of just satisfaction made by the ECtHR (the obligation to make just satisfaction).
The obligation of cessation
The "blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences" must cease. "The Court recalls that it has found that the retention of the applicants' fingerprint and DNA data violates their rights under Article 8. In accordance with Article 46 of the Convention, it will be for the respondent State to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to fulfil its obligations to secure the right of the applicants and other persons in their position to respect for their private life."
Solicitor Peter Mahy, a human rights specialist at Sheffield-based Howells LLP representing Messrs S and Marper, puts it succinctly: "It will be very interesting to see how the UK government respond. The government should now start destroying the DNA records of those people who are currently on the DNA database and who are innocent of any crime." Up to one in five of the more than five million DNA profiles may have to go.
A process has to be put in place to deal with the scale of this operation. The Scottish Police Services Authority (SPSA), a non-departmental public body (NDPB), centrally handles the removals of more than 20,000 Scottish DNA records every year. Police forces in England and Wales will likely look at this model. With its role of overseeing delivery of the NDNAD Service, the NPIA should be a candidate for a similar central function. In the meantime those innocents whose DNA is on the NDNAD should request removal as explained earlier.
The retention rules will have to change too. The legislation enables the police to take and retain fingerprints and DNA samples indefinitely, but it does not compel them. Section 64 of the Police and Criminal Evidence Act 1984 (PACE) as amended by the Criminal Justice and Police Act 2001 includes:
(1A) Where - (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.
The police may take samples and may retain them indefinitely, but it's up to them. The current rules were not decided by Parliament; they are established in the Retention Guidelines for Nominal Records on the Police National Computer, a document issued by the Association of Chief Police Officers (ACPO). This document also provides a template for the letter sent by chiefs of police when refusing requests for destruction of DNA records.
Chris Sims, ACPO lead on Forensics and Chief Constable of Staffordshire Police announced: "We will study this judgment carefully and consider in detail implications which could have a profound impact on the way in which the police service makes use of DNA technology to protect the public and tackle crime... It is important to stress that the existing law on the taking and retention of DNA and fingerprints remains in place. Police will continue to take DNA from those people arrested for crimes and will investigate crimes and bring offenders before the court using DNA evidence until such time as there is a legislative change."
This statement is overly cautious - no legislative change is needed for the ACPO to change its guidelines. What must change is the retention of records and samples. Taking DNA from those arrested for a crime is not the issue. Home Office minister Vernon Coaker, agreed in a Parliament debate in November that the "[ACPO retention] guidelines will need to be reviewed in the light of the outcome of the S and Marper case, and a PACE review is currently under way."
The obligation of non-repetition
The recent PACE review made it clear that it will be amended in line with the judgment. "The Government does not intend to make any proposals at this time in area. That is because of an outstanding case in the European Court of Human Rights... a response in respect of this area of policy will be made following consideration of the Judgement by the Court."
It is necessary for the legislation to change so that it is no longer possible for the police to create and follow policies that violate our human rights. However, effective change of current retention practices can happen much sooner with a change of policy.
The obligations of reparation to make just satisfaction
The Court considers that "the finding of a violation, with the consequences which will ensue for the future, may be regarded as constituting sufficient just satisfaction in this respect. The Court accordingly rejects the applicants' claim for non-pecuniary damage." Hence the reparation will consist of deleting the DNA profiles and destroying the DNA samples and fingerprints of Messrs S and Marper. The government has to pay within three months, ie by March 4, the sum of €39,387 awarded by the Court in respect of costs and expenses.
The Committee of Ministers has the responsibility to monitor the measures taken by the UK to comply with the judgment. "[U]ntil the state in question has adopted satisfactory measures, the Committee of Ministers does not adopt a final resolution striking the judgment off its list of cases, and the state continues to be required to provide explanations or to take the necessary action."
Retaining DNA of a large number of individuals has not proved helpful. A GeneWatch analysis shows that when "the number of individuals with DNA profiles on the Database... doubled from 2 million to 4.5 million... there has been no corresponding increase in the number of crimes detected. The percentage of recorded crimes which involve a DNA detection has remained roughly constant at 0.36%... The Home Office recognises that the increased number of crime scene profiles added to the Database drove the increase in DNA detections."
Nothing in the ECHR ruling affects the ability of the police to take DNA samples from those they arrest during their investigations. Nor does the ruling ask for wholesale deletion of DNA records of convicted criminals, though it does note that in other Council of Europe member States "[t]he retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person's death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons."
The Joint Committee on Human Rights in the conclusions of its report notes "[d]elays of upwards of five years in resolving the most significant breaches of the European Convention are unacceptable unless extremely convincing justification for the delay can be provided." This only serves to reiterate that those who are innocent and on the NDNAD should not delay requesting the removal of their DNA records. ®
(The full text of the judgement is available on the British and Irish Legal Information Institute website and you can download a six minutes video of the reading of the judgment's summary from a hard-to-find page on the Council of Europe's website.)
After a four-year absence, the Big Borther awards are back with Simon Davies and Gus Hosein from Privacy International as masters of ceremony. Traditionally this event expose the government and private sector organisations which have done the most to threaten personal privacy. This year the emphasis was much more on celebrating the individuals who have made outstanding contributions to the protection of privacy.
A single Big Brother 2008 award - the golden statue of a boot stamping upon a human head - was won by New Labour.
Six individuals received virtual Winstons (due to timing there were no physical objects to give during the evening, which also meant as Simon pointed out that there was nothing to be seized by the Police in case of raids on any of the winners!):
Most of the short presentations were about the hope brought about by the recent ECtHR ruling in S. & Marper v. UK (GeneWatch UK, Privacy International and Liberty intervened with evidence or submission in this case.) The derailment of the attempt to extend pre-charge detention to 42 days, and the absence of the latest communication surveillance initiative, the interception modernisation programme (IMP), from the Queen's speech were others positive news this year.
Congratulations to Baroness Ludford, Phil, Helen, Gareth, Becky and David Davis.
The Jean Charles de Menezes family sums up the wider issue at stakes in their press statement: 'This case raises questions of critical constitutional importance. Should our armed police service be protected from meaningful criticism (let alone criminal sanction) or are the public entitled to go about their day to day business free from the fear that they could be shot dead without warning if mistaken for a suspected terrorist?
At 12:53pm today, the jury announced its verdict in the inquest into the death of Jean Charles de Menezes:
SIR MICHAEL WRIGHT: Mr Foreman, I think, if you don't mind, if I ask you to stand up, then everybody can see you and see that it is you who is speaking. I understand that the jury has reached a verdict and answers to all questions and that at least eight of you are agreed on all the answers given. Is that so?
THE FOREMAN OF THE JURY: That's correct, sir.
SIR MICHAEL WRIGHT: Thank you. I am now going to ask you to give your answer on each matter and to say in each case whether you are all agreed or whether the answer has been reached by a majority and, if so, the size of the majority in each case, the numbers in each case. The short form verdict is either lawful killing or open verdict. What is your verdict?
THE FOREMAN OF THE JURY: Open verdict.
SIR MICHAEL WRIGHT: Thank you. Question 1: did officer Charlie 12 shout the words "armed police" at Mr de Menezes before firing; yes, no or cannot decide?
THE FOREMAN OF THE JURY: No.
SIR MICHAEL WRIGHT: I should have asked you in relation to the verdict: is that a unanimous verdict or by a majority?
THE FOREMAN OF THE JURY: It's a majority.
SIR MICHAEL WRIGHT: How many agreed and how many disagreed?
THE FOREMAN OF THE JURY: Eight agreed, two disagreed.
SIR MICHAEL WRIGHT: In answer to question number 1, the one you have just given, is that unanimous or by majority?
THE FOREMAN OF THE JURY: That is unanimous.
SIR MICHAEL WRIGHT: The second question is: did Mr de Menezes stand up from his seat before he was grabbed in a bear hug by Ivor; yes, no or cannot decide?
THE FOREMAN OF THE JURY: Yes, and that's unanimous.
SIR MICHAEL WRIGHT: Thank you. Did Mr de Menezes move towards officer C12 before he was grabbed in a bear hug by officer Ivor?
THE FOREMAN OF THE JURY: No, and that's unanimous.
SIR MICHAEL WRIGHT: Thank you. Turning to the factors for consideration, do you consider that any of the following factors caused or contributed to the death of Mr de Menezes: (a) the suicide attacks and attempted attacks of July 2005 and the pressure placed upon the Metropolitan Police in responding to the threat?
THE FOREMAN OF THE JURY: Cannot decide, sir.
SIR MICHAEL WRIGHT: Again, is that inability to decide by a majority or unanimous?
THE FOREMAN OF THE JURY: That's a majority of eight to two.
SIR MICHAEL WRIGHT: Thank you. (b) a failure to obtain and provide better photographic images of the suspect Hussain Osman for the surveillance team?
THE FOREMAN OF THE JURY: Yes, that's unanimous.
SIR MICHAEL WRIGHT: (c) a failure by the police to ensure that Mr de Menezes was stopped before he reached public transport?
THE FOREMAN OF THE JURY: Yes, unanimous, sir.
SIR MICHAEL WRIGHT: Thank you. (d) the general difficulty in providing identification of the man under surveillance, Mr de Menezes, in the time available and in the circumstances after he had left the block at Scotia Road?
THE FOREMAN OF THE JURY: No, and that's unanimous.
SIR MICHAEL WRIGHT: (e) the innocent behaviour of Mr de Menezes which increased the suspicions of some officers?
THE FOREMAN OF THE JURY: No, that's a majority of eight to two, sir.
SIR MICHAEL WRIGHT: Thank you. The fact that the views of the surveillance officers regarding identification were not accurately communicated to the command team and the firearms officers?
THE FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: (g) the fact that the position of the cars containing the firearms officers was not accurately known to the command team as the firearms officers were approaching Stockwell station?
THE FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: (h) any significant shortcomings in the communications system as it was operating on the day between the various police teams on the ground and with New Scotland Yard?
THE FOREMAN OF THE JURY: Yes, unanimous again, sir.
SIR MICHAEL WRIGHT: (i) a failure to conclude at the time that surveillance officers should still be used to carry out the stop of Mr de Menezes at Stockwell station, even after it was reported that specialist firearms officers could perform the stop?
THE FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: That concludes your verdict. I am very much obliged to you, Mr Foreman, thank you.
The family's reaction:
Is the family pleased with the verdict? Do they feel justice has been done?
The decision today will not bring our cousin Jean back.
However, it goes at least some way to recognising the failings that led to his death. We thank the jury for the considerable time they contributed to this inquest and their careful review of all the evidence within the boundaries given to them.
Agencies and institutions involved in all aspects of this case must now demonstrate their own accountability and make fundamental changes to their practices and procedures.
In their conclusions, the jury have delivered a strong critique of the police and its failings. They have said that they do not believe that the police gave a warning before shots were fired, or that Jean advanced towards firearms officers in the tube train. The family appreciate this conclusion.
We have come a little closer to the truth during the course of the inquest. Nevertheless, the gagging of the options available to the jury constitutes a abject failure of the role of the inquest.
What will the family do now?
The family has consistently struggled for justice, which has not yet been delivered. We will continue to pursue this aim.
The next stage is a judicial review of the Coroner's decision not to allow an unlawful killing verdict. We will also be examining all other legal avenues because we feel that the Coroner has ensured that the inquest failed in its fundamental role to properly examine why our cousin Jean was killed.
As the legal situation stands today, another innocent member of the public could be shot and another family could go through the same ordeal as us.
Will the family be asking for compensation?
The family has not pursued this as a priority. Our central concern has always been to find out the truth about Jean's death.
When we buried Jean in 2005,we made a promise to him that we would make sure that justice was done. Jean was a great believer in justice, one of the things he most loved about living in Britain was respect for the rule of law and that nobody was above the law. We owe it to his memory to make sure that nobody else suffers the way that he did.
In light of the verdict, we would nevertheless hope that any issues around compensation to be settled in a dignified manner, without obstruction or delay.
What is your message to Sir Ian Blair?
Today's verdict confirms that Sir Ian Blair has repeatedly evaded any responsibility for the killing of an innocent man, by misleading the public in the aftermath of the shooting so that no-one in his police force is held to account over the killing of Jean Charles de Menezes.
However, having misrepresented the shooting as simply a 'tragic mistake' rather than the result of terrible policy and procedural failures, it is clear that Jean's death will always be Sir Ian's legacy, the judgement on his time as Commissioner that he will never escape.
Has the family any message to the jury?
We consider that the jury were given unacceptable restraints upon the verdict they could deliver and feel that, within the choices available to them, they tried their best to deliver a fair verdict. We thank them for their handling of this difficult task.
We feel that in light of the evidence heard, a free decision by the jury would have at least have left a possibility of a verdict of unlawful killing.
It is disappointing that the Coroner made clear attempts to exclude the public, media and the family's campaign from the inquest.
The family would also like to express their appreciation for the many messages of support from the British public during this difficult time.
The family staged a protest in court. Do they stand by their actions? Do they feel these actions made a difference?
The family stands by our actions because we feel that we were left with no choice. We wanted the jury to know that they could have the freedom to make their decision, despite the limitations placed upon them.
Do you think Cressida Dick should resign?
The family should not have to carry the responsibility of this decision. Public bodies have a responsibility to hold her accountable and they have failed to do so.
In light of DAC Dick's direct involvement as the designated senior officer of a disastrously handled operation that led to the shooting of an innocent man, her promotion in the aftermath of the shooting was considered by us to be a deliberate slap in the face for our family and our view on this remains unchanged.
We once again call on the Independent Police Complaints Commission, the Crown Prosecution Service and the Metropolitan Police Authority to review the inquest evidence and to see what appropriate action needs to be taken to hold public servants to account.
Why did you ask your legal team to withdraw from the inquest?
The family felt that they were left with no other option. We felt the coroner's decision to restrict the jury's decision-making completely undermined their role to freely return whatever verdict they felt was correct based on the evidence. We could no longer participate in a process which was so clearly a whitewash.
More details on the views of the different parties on the choice of verdict and questions offered to the jury can be found the post inquest briefing and legal submissions on verdicts.
Last year British lawyer Clive Stafford Smith suggested that musicians use copyright law to hold the American government to account for its use of music to torture detainees in Afghanistan, Iraq and Guantanamo. I wrote about this idea, about the use of music as a weapon and moral rights for El Reg in Fighting torture with copyright - Moral musos work to rule. (See also the related posts on this blog: readers' follow-ups suggestions such as for the US Army to run its own music label, and the 'Bring Byam Home' song; Binyam Mohamed is still held in Guantanamo and a victim of music torture: 'I could not take the headphones off as I was cuffed. I had to sleep with the music on and even pray with it.') Earlier this year, Clive Stafford Smith wrote Welcome to 'the disco' in The Guardian about 'torture lite' - music played at excruciating volume over and over.
Yesterday, on human rights day, Reprieve, the legal charity of which Clive Stafford Smith is the director, launched the Zero dB project:
Zero dB – against music torture
On the 60th anniversary of the Universal Declaration of Human Rights musicians are uniting against the use of music to torture by joining www.ZerodB.org The Zero dB project (zero decibels = silence) was launched today by legal charity Reprieve which represents over 30 prisoners in Guantanamo Bay. Many of Reprieve’s clients - and hundreds more held in US secret prisons across the world - have been subjected to deafening music played for hours, days and often months on end in order to ‘break’ them.
Zero dB aims to stop torture music by encouraging widespread condemnation of the practice and by calling on governments and the UN to uphold and enforce the Convention Against Torture and other relevant treaties.
Zero dB is backed by the Musicians Union which is calling on British musicians to voice their outrage against the use of music to torture.
The UN and the European Court of Human Rights have banned the use of loud music in interrogations, but it is still being widely used. Prisoners describe the experience as harder to bear even than physical torture.
Reprieve’s client Binyam Mohamed from North London - still held in Guantanamo Bay - suffered 18 months of torture in a Moroccan secret prison. During this time his penis was routinely slashed with razor blades, yet he describes the sensation of feeling his sanity slip during psychological torture as even more horrific. He spoke to Reprieve Director Clive Stafford Smith, his lawyer, in Guantánamo Bay:
“They hung me up. I was allowed a few hours of sleep on the second day, then hung up again, this time for two days. My legs had swollen. My wrists and hands had gone numb.... There was loud music, [Eminem’s] ‘Slim Shady’ and Dr. Dre for 20 days.... The CIA worked on people, including me, day and night.... Plenty lost their minds. I could hear people knocking their heads against the walls and the doors, screaming their heads off.”
There is a long and growing list of supporters who are outraged by the use of music to torture: James Lavelle of UNKLE, Matthew Herbert, Tom Morello of Rage Against The Machine, Massive Attack, The Magic Numbers, Elbow and Bill Bailey have so far pledged their support of the initiative and made statements against the use of music to torture.
Musicians and the wider public are making their own silent protests against music torture which are being shown on zerodb.org. A series of silent protests and actions are planned through 2009.
Visit www.zerodb.org to record your silent protest now.
Music that has been used to torture includes:
• AC/DC - Hell's Bells
• AC/DC - Shoot to Thrill
• Barney the Purple Dinosaur - theme tune
• Bee Gees - Stayin' Alive
• Britney Spears
• Bruce Springsteen - Born in the USA
• Christina Aguilera - Dirrty
• David Gray - Babylon
• Deicide - Fuck Your God
• Don McLean - American Pie
• Dope - Die MF Die
• Dope - Take Your Best Shot
• Dr. Dre
• Drowning Pools - Bodies
• Eminem - Kim
• Eminem - Slim Shady
• Eminem - White America
• Li'l Kim
• Limp Bizkit
• Matchbox Twenty - Gold
• Meat Loaf
• Metallica - Enter Sandman
• Neil Diamond - America
• Nine Inch Nails - March of the Pigs
• Nine Inch Nails - Mr. Self-Destruct
• Prince - Raspberry Beret
• Queen - We are The Champions
• Rage Against the Machine - Killing in the Name Of
• Red Hot Chilli Peppers
• Saliva - Click Click Boom
• Sesame Street - theme tune
• Tupac - All Eyes on Me
Surprisingly not all musicians are opposed to this use of their music, James Hetfield, co-founder of Metallica said in an NPR Music interview: 'There's a pride also. It's culturally offensive to [Iraqis], freedom. [...] If they're not used to freedom, then I'm glad to be a part of their exposure'. (At that point of the interview he does appear serious). Most musicians prefer to remain silent on this issue, hiding behind the fact that they don't have much control on their music once published. Reprieve lists above some musicians outraged by the use of music as torture. Also, the Society for Ethnomusicology condemns the use of music as an instrument of torture, and the Musicians Union is backing the Zero dB project. British singer-songwriter David Gray is one musician who openly condemned such use: 'It's shocking that there isn't more of an outcry. [...] It's disgusting, really. Anything that draws attention to the scale of the horror and how low we've sunk is a good thing.'
Intriguingly, the expression 'torture lite', used for music played at excruciating volume over and over, evokes a scale ranging from no torture to torture heavy. Andy Smith pointed out, in Orwell's Sound of Silence, that Orwell had found non-stop muzak, played even at low volume well below anything used by torturer, was enough to affect everyone's thoughts:
“On a pleasure cruise or in a Lyons Corner House one already gets something more than a glimpse of this future paradise. Analysed, its main characteristics are these:
- One is never alone.
- One never does anything for oneself.
- One is never within sight of wild vegetation or natural objects of any kind.
- Light and temperature are always artificially regulated.
- One is never out of the sound of music.”
Items one and two are recurring themes throughout Orwell’s writing—most notably in the concept of “Big Brother is watching” in 1984. However, it is the fifth item that bears further examination because, for him:
“The music—and if possible it should be the same music for everybody—is the most important ingredient. Its function is to prevent thought and conversation, and to shut out any natural sound, such as the song of birds or the whistling of the wind, that might otherwise intrude.”
Back in contemporary London, 'Live music is now a threat to the prevention of terrorism'; this according to UK Music chief Feargal Sharkey comminting on the implementation of a risk assessment policy for vetting live music. Organisers must complete Form 696 with personal details of all artists, music style to be played and some information on the audience. This form has to be sent to the police at least 14 days in advance.
Every time I write up a submission to yet another consultation I wonder whether it is worth the effort. Here are some of the consultations mentioned in this blog to which I sent in a contribution:
I suggested earlier: 'It's unclear how much effect responses to these many consultations do have, but as these are rare occasions when the public at large are invited to voice concerns you may want to take the time to go through the 60-page document and write to the Home Office. The number of responses generally positive or negative may be as important as the detailed content of the responses.'
The European Court of Human Rights judgement in S. and Marper v. UK should be an encouragement to everyone who made the effort to contribute to the Nuffield Council on Bioethics consultation. The resulting report is cited in the section on 'Relevant law and materials' (sections 38-40) and in the 'Justification for the interference; The Court's assessment' (section 116 and 124).
In Appendix 2: Wider consultation of the report, the Nuffield Council on Bioethics wrote:
A consultation was held between November 2006 and January 2007. A consultation paper prepared by the Working Group contained background information and questions for respondents to answer if they wished. The document was disseminated to individuals and organisations relevant to the field and it was also available online. Approximately 135 responses to the consultation were received; 76 per cent from individuals and 24 per cent from organisations.
The Working Group and the Council are grateful for such a diverse range of responses and found them to be insightful and useful.
Everyone who contributed to this consultation (the list is available in the report) has in a small and indirect way helped inform the Grand Chambers of the ECtHR when it looked into the case of S. and Marper v. UK. That was a consultation worthwhile to contribute substantively to!
Lord Steyn in the House of Lords ruling in S. and Marper v. UK ( UKHL 39) held that 'the increase in the database of fingerprints and samples promoted the public interest by the detection and prosecution of serious crime and by exculpating the innocent;' [Emphasis added]. The case of Kevin Reynolds contradicts this point.
Kevin Reynolds was first arrested in 2002, and the police took DNA samples from him. When he was acquitted, the Police retained his DNA samples and profile. Three years ago, Kevin was arrested a second time, this time on suspicion of murder. The police had DNA from the crime scene; if they had compared it to the DNA retained from Kevin's first arrest he would have been cleared immediately - but they didn't. See details in DNA retention of unconvicted people.
Kevin informed me that he just received the following letter, dated 2008-12-02, from SCD12 - AC Private Office and Business Services, Metropolitan Police:
Re: Request for deletion of fingerprints, DNA and PNC records
Dear Mr Reynolds,
I refer to previous correspondence regarding the above.
Your case has been subject to a review based on existing MPS records and the evidence and contention you have provided.
After consideration, Commander [name removed] (on behalf of the Commissioner), is of the opinion that your case should be treated as exceptional.
Based upon this, your records will now be destroyed
The deletion process takes a number of weeks to be fully completed, you will be informed when the deletion of all samples / records has taken place.
NB. fingerprints of an unsuitable quality would not have been retained.
for Commander - Operational Information, Intelligence and Learning, on behalf of the Commissioner
Congratulations to Kevin. As this letter is dated two days earlier than the ECHR judgement in S. and Marper v. UK, the decision in Kevin's case could not have been affected by this ruling. It is likely that Kevin is one of the last innocents in England and Wales who had to fight the Police, often over several years, to have a chance to be among the happy few couple hundred individuals to manage to get their DNA records destroyed each year. Now that the ECHR has found the retention of S. and Marper's DNA breaches human rights law, it should be much easier for innocents who have had their DNA taken by the police to get their DNA samples and profile destroyed. GeneWatch UK recommends that you write now to the Chief constable of the police force that arrested you to request your DNA records to be destroyed.
The DNA profiles of innocents held in the National DNA Database (NDNAD) are found, by the European Court of Human Rights, to be in violation of the right to respect for private and family life (article 8). About one in five of the more than five million DNA profiles will now have to go. The judgment of the Grand Chamber is final (article 44 in Protocol No 11) and the UK by being a signatory of the European Convention of Human Rights (ECHR) undertakes to abide by the final judgment (article 46 in Protocol No 11).
125. In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society. This conclusion obviates the need for the Court to consider the applicants' criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data.
126. Accordingly, there has been a violation of Article 8 of the Convention in the present case.
This is a fantastic result after a seven year hard fought battle against the UK government. We are obviously delighted that the European Court of Human Rights found in our clients’ favour. It will be very interesting to see how the UK government respond. The government should now start destroying the DNA records of those people who are currently on the DNA database and who are innocent of any crime.
The decision - which will affect people aged ten or above who have been acquitted or had charges dropped following arrest in England, Wales and Northern Ireland - was welcomed by campaign groups involved in the case. [...]
"It is now up to the British people to stand up for their rights and demand strict rules to limit DNA retention", said Dr Wallace.
Home Office figures show that keeping DNA indefinitely from innocent people has not helped to solve more crimes.
We will study this judgment carefully and consider in detail implications which could have a profound impact on the way in which the police service makes use of DNA technology to protect the public and tackle crime.
The existing law would remain in place while ministers considered the judgment
I was interviewed earlier on by Andy Bell for Five News. It should be broadcast at 5pm and 7pm today as part a series of reactions to the ECHR judgement. [Update: the Five News programm will lead with another topic.] We discussed how I felt about the police taking and keeping my DNA, how difficult it was for me to get off the NDNAD and what I think about today's judgement.
This is a superb news for all the other innocents, including those who contacted me directly, desperate to get off the NDNAD. Now we're awaiting the practical details of when and how the DNA and fingerprint records of innocents already on the system will be destroyed.
Most readers of this blog are hopefully keen on promoting human rights. For the many based in London, join the discussions at the event organised by CAMPACC, the London Guantánamo Campaign, London Against Injustice and others on December 10th, the International Human Rights Day.
Why Human Rights? ...And Where Now?
On the 60th anniversary of the signing of the Universal Declaration of Human Rights (UDHR) creating a global framework for the protection of the rights of everyone, and in this climate of multiple crises, we invite you to consider: do we really have human rights? What's right and wrong with them? Can 'rights' help us respond to the challenge of reconstructing society; so that justice, mutual respect and equality prevail? And if so, what concrete actions must we now take?
The 10th December free event at the LSE looks to mark the 60th anniversary by finding ways to make human rights relevant to all, and not just activists, lawyers and academics. Asking the question: how can a broad civil rights platform encompass the full range of relevant social movements in Britain today? We will explore beyond civil liberties and individual rights to consider: what are humanity's essential, and collective economic, social, political and environmental rights, for which we must fight?
15:00-17:00 Pre-conference seminar: Prison and Society (LSE, Room H102, Connaught House Building, on Aldwych)
- Politics of Detention - Aisha Maniar, Hicham Yezza, Massah Barnett and others
- Land, Housing and Lebfevre's Right to the City - Professor Michael Edwards, Teresa Hoskyns, Dave Wetzel [tbc] and others
- Action proposals, discussion and preparing questions for the evening conference
18:00-19:00 Building a movement - Panel (LSE, New Theatre, Building E, Houghton St)
- Head of State Immunity - Peter Tatchell
- Academic Freedom - Hicham Yezza
- Public Services - Anne Gray
- Lebfevre's Right to the City - Teresa Hoskyns
- Housing - Michael Edwards
- with guest appearance from Vivienne Westwood
19:00-20:00 Keynotes (LSE, New Theatre, Building E, Houghton St)
- Civil Liberties - Professor AC Grayling
- War on Terror - Andy Worthington
- The Environment - Asad Rehman
20:00-21:30 Audience Q&A, discussion and action proposals (LSE, New Theatre, Building E, Houghton St)
Speakers, panellists and questioners may wish to consider the history of the UDHR - successes, failures, shortcomings, opportunities - under six broad themes: Culture, Development, Dignity and Justice, Environment, Gender and Participation. They may also wish to refer to the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) aswell as the EU Charter of Fundamental Freedoms (Charter) and recent UK Cabinet proposal for a Bill of Rights and Responsibilities (announcement & JCRH report on the proposal). And in respect of any or all of these, and the various crises we find ourselves in: what concrete actions must we now take?
We want to come out of the day with concrete, shared ideas about how to move forward the human rights movement after our 60-year experience with the UDHR, and more recently the ECHR and HRA. We have chosen the topics, speakers and panellists to provide the potential foundation for a movement based on liberty, dignity and justice for all in the UK and beyond. Furthermore, both the timetable and Q&A format are designed to leave sufficient space to discuss and plan future actions together. We would therefore ask speakers to plan their presentations accordingly: what collective actions we must now undertake? And we would ask participants to do the same in relation to any questions, comments or concrete proposals they put forward.