Jaz Cummins interviewed me a few weeks ago for the Londonist for her series of London Blogger Interviews. This interview, #34 in the series, has just been published. It was an interesting exercise as I hadn't previously spent much time reflecting on the blog itself. The 15 words or less description I came up with is: 'Reporting about being calm, almost too calm, on human rights and policing issues, plus technology.' Thanks to Jaz and M@ for organising it and to Jaz for the questions.
Read the full interview at the Londonist. You can comment at the Londonist or by email (see 'feedback' link at the bottom of every post).
One of London's lesser known attraction is the Special Immigration Appeals Commission (SIAC). One can attend a SIAC hearing by turning up at the Royal Courts of Justice, after checking the hearing list for the week, and sitting at the back of the room behind the rows of barristers and solicitors. Today, Mr Justice Mitting was hearing a Home Office application to revoke the bail of U. This follows last week High Court ruling limiting the use of secret evidence in bail appeals. Similarly to the House of Lords decision about control order hearings made earlier this year, the High Court ruled that an appellant in a SIAC hearing must be provided with sufficient information so that he might know the case against him and give effective instructions to challenge the allegations. The last decision to revoke U's bail was based entirely on closed evidence, this time the Home Office has to justify its new application for bail revocation in open court. In last week's ruling, U was described as follows:
U is an Algerian national born on 8 February 1963. He came to the United Kingdom in November 1994 and claimed asylum. At the end of 1996 he travelled to Afghanistan. He returned to the UK in March 1999. On 27 June 2000 his asylum application was refused. In March 2001 he was arrested and remanded in custody on criminal charges, but they were dropped on 16 May 2001. However he was detained at HMP Belmarsh by the Secretary of State under paragraph 16 of Schedule 2 to the 1971 Act on the grounds that he had breached the conditions of his temporary admission. There ensued a long and complex history whose upshot is that, save for a period from July 2008 until February 2009 when he was on bail, U has been continuously in custody since March 2001. His confinement has been justified from time to time as a prisoner on remand, or under the administrative powers given by the 1971 Act, or at one stage as a fugitive whose extradition was sought to the United States. [...]
In February, Andy Worthington wrote about how Jacqui Smith kidnapped U and others:
The Home Secretary, Jacqui Smith, appears to have declared war on the government’s own secret terror court, overruling decisions made by judges in the Special Immigration Appeals Court (SIAC) yesterday, and — in what can only be described as an act of executive fiat — unilaterally revoking their bail, kidnapping them on their way home from the London courtroom (or in raids on their homes) and imprisoning them in Belmarsh high-security prison in south east London. [...]
More recently he published Maps, wire and fig trees – the Dummies Guide to Revoking Bail a short piece on U by Jack Hazelgrove, a Brighton resident who offered him his home for the eight months he was on bail:
I had offered my home to U, a middle-aged Algerian about whom I knew little except that he had been imprisoned without charge or trial for over six years and who his solicitor described as “very studious.” He would effectively be under house arrest on a 24-hour curfew, tagged and monitored with surveillance equipment, his only relief from confinement being access to the back garden. Parts of the interior of the house were forbidden territory, e.g. the computer room, where my computer had new passwords installed and was put in a specially designed steel safe behind a reinforced door and extra window locks.
It was a relief when the posse of Home Office and security people left and U was able to turn his anonymous student room into his first home for seven years. The Home Office had made clear their objection to Brighton as a bail address and refused to pay any rent or subsistence, which they would have paid had he accepted their offer of an isolated one-bedroom flat somewhere in the North. [...]
The hearing started at 11.30 with Mr Robin Tam QC for the Home Office. Mr Tam favoured outcome was the revocation of U's bail or alternatively the imposition of strict bail conditions comparable to those in place before February 2009. However, if the bail was not revoked, he wanted U to go to another location than Brighton; no reason was given for this request. A key argument of Mr Tam was that U is a risk to national security and, as his deportation case is progressing and getting closer to a conclusion, the attendant risk of absconding is increasing, hence a precautionary approach must be adopted. Mr Tam insisted that the bail application is ancillary to the matter of the deportation, the core issue in the main proceedings.
Mr Justice Mitting pointed out that such a precautionary approach for SIAC could suggest denying bail to all appellants, with the decision effectively becoming that of the Home Secretary. Mr Tam made a more flippant comment later on: it's not because the Secretary of State has the power to detain that he will detain everyone! Mr Justice Mitting asked Mr Tam how does he see the Strasbourg approach to scrutiny of national security assessments apply, to which Mr Tam answered, if SIAC does not have the tool to make the fine assessment required of national security, it has to apply a lighter touch. Some of the verbal exchanges gave me the impression that the Home Office would be happy for the scope of SIAC to be reduced.
It was mentioned that the security services have revealed, for the first time in open evidence, weaknesses in electronic tags. As the problems are apparently so severe this technology can't be trusted, if bail is granted then conditions will need to include 24 hours house arrest.
We had to temporarily vacate the room later in the morning as Mr Justice Mitting asked for a brief closed session. The open session session then continued until 1pm and reconvened at 2pm. Ms Stephanie Harrison, the barrister representing U, countered the Home Office by arguing that fair hearings overrides national security concerns. Bail assumes that the detention is lawful and that the decision is about whether U can be released with conditions. I.e., the decision must be about whether objections from the Home Office were valid, if so whether they can't be met. Ms Harrison pointed out that when he was on bail, U met all the imposed conditions (and Mr Tam confirmed that 'we have made no complaint to the contrary') and that she was confident that these bail conditions could be restored. Ms Harrison also commented that the deportation case has still likely at least 18 months to go in domestic courts and would then likely be appealed to Strasbourg, suggesting that such a length in time would mitigate the alleged increased risk of absconding.
A large part of the interventions consisted in technical legal points about bail legislation, tests for bail granting and revocation (a possible test for new cases could be whether detention is for the purpose of deportation, and whether it is arbitrary? If the answers are respectively yes and no, then bail should be approved with a strict time limit), calibrated approach (relying on the use of secret evidence) vs. the Strasbourg approach (as expressed by the European Court of Human Rights), etc.
Mr Justice Mitting commented that in SIAC (which 'deals with appeals against decisions made by the Home Office to deport, or exclude, someone from the UK on national security grounds, or for other public interest reasons') the statutory presumption is to detain. He recapped some of the issues the judges will have to consider when making their decision: now that we don't have access to closed material, can the risk of absconding be adequately managed. Is it likely that he'll break his bail conditions. We're looking at this solely in the light of the open material.
Before the three judges retired at about 5pm, two special advocates also intervened. The two other judges, sitting on each side of Mr Justice Mitting, have never seen the secret evidence. They remained silent during the proceedings.
About five minutes later, the three judges came back and Mr Justice Mitting announced their decision to uphold the revocation of bail on the basis of the open evidence. Reasons for this decision will be provided in the ruling to be published after Xmas (it has to be vetted by the security service, before publication). The current lack of explanation is not just frustrating for all those present, but is also delaying the judicial review of this decision that Ms Harrison will request.
Next Monday, on 2009-12-14, SIAC will hear the bail revocation applications for XC and UF, two of the Pakistani students arrested in April as part of Operation Pathway, a round-up of twelve men in connection with a purported 'major terrorist plot' and currently detained in prison.
If you can make the time it is worth attending. At times SIAC can feel like a charade. Some of the Home Office arguments appear entirely circular: e.g., there's a high risk to national security as SIAC cases are serious and of high severity, hence SIAC must manage 'the magnitude of the seriousness of the risk should it eventuate'. It is important to realise the damage that the use of secret evidence has done to fair trials and how it stills obstructs the judicial process. (Sign the petition, lobby your MP.) Attending a SIAC hearing demonstrates the damage done to fair justice by the successive Home Secretaries invoking opaque concepts such as 'national security' and resorting to secret evidence.
Update: for more background and another take on this SIAC ruling see Andy Worthington's Calling Time On The Use Of Secret Evidence In The UK.
First published on 2009-12-07; last updated on 2009-12-10.
Ian Tomlinson was remembered earlier today with a candlelight vigil. Eight months earlier, he died on his way home after being hit by police officers during the G20 demonstration.
His family set up a campaign to:
demand a full investigation into Ian’s death that scrutinises the individual conduct and operational command tactics of police officers present at the G20 protest and those in command of them when Ian was assaulted and died
call for full criminal charges to be brought against any officer whose actions or failure of duty resulted in Ian’s death
campaign for change to any police policies, tactics or frequent abuses of power which may effectively endanger people’s lives rather than protect them, so that future deaths and injuries to the public can be prevented
raise awareness of any issues we may experience as a family seeking justice through statutory and judicial systems that are a cause for public concern
The Independent Police Complaint Commission (IPCC) completed its main investigation and passed a file to the Crown Prosecution Service. The IPCC have also been asked by the family of Ian Tomlinson 'for a full report on what looks like a cover-up'. The CPS is considering whether to press charges.
The family of Jean Charles de Menezes and the Metropolitan Police Service have issued the following joint statement:
The Commissioner of Police of the Metropolis and representatives of the de Menezes family are pleased to announce that all litigation between them arising out of the tragic death of Jean Charles de Menezes has been resolved.
The members of the family are pleased that a compensation package has been agreed which enables them to put these events behind them and move forward with their lives. In view of the physical and mental distress caused to the members of the family by these events and the understandable publicity and press interest, it has been agreed that it is in the best interests of the family that no further statement in relation to this settlement will be made either by them or the Commissioner.
The Commissioner would like to take this opportunity of making a further unreserved apology to the family for the tragic death of Jean Charles de Menezes and to reiterate that he was a totally innocent victim and in no way to blame for his untimely death.
It has taken four years, four months and one day for the de Menezes to reach some closure in its fight for justice.
The inquest showed 'there is a real risk, then, it could happen again'. Responding to the IPCC's decision not to discipline any officer involved in the operation that led to the shooting of Jean Charles de Menezes, one of his cousin commented: 'Our family and the British public have been completely failed by this decision, we all live under the terror that the same thing could happen again. Nobody should accept this.' Keeping this story alive remains important.
The Committee of Ministers (CoM) of the Council of Europe has the duty to supervise the implementation of European Court of Human Rights (ECtHR) rulings by respondent States. At its last meeting of the Ministers' Deputies, in September (1065-4.2), the CoM made a damning assessment of the progress of UK's implementation of the ECtHR ruling in S & Marper v. UK. Below is the section concerning the Home Office proposals for retaining DNA and fingerprints. (Read Sentenced to genetic probation for an analysis of the Home Office proposals, A response to the Home Office consultation on DNA retention for my response and GeneWatch UK for other responses to the consultation).
General measures: The European Court noted in particular “the blanket and indiscriminate nature of the power of retention” (§119). Observing: “ ... material may be retained irrespective of the nature or gravity of the offence ... or of the age of the suspected offender ...[and] the material is retained indefinitely.” (§119). The European Court also noted that there are “limited possibilities ... to have the data removed from the nationwide database [and] ... no provision for independent review of the justification for the retention according to defined criteria” (§119). The European Court also made reference to the provisions and principles in a number of other Council of Europe texts applying to retention of personal data including:
- Recommendation R(92)1 of the Committee of Ministers on the use of analysis of DNA within the framework of the criminal justice system
- Recommendation R(87)15 of the Committee of Ministers regulating the use of personal data in the police sector
- Article 7 of the Data Protection Convention
<snip>
4) Proposals set out in the public consultation:
a) Provisions for the taking of DNA and fingerprints:
The existing position will be retained. DNA and fingerprints will be taken on arrest from a person detained at a police station for a recordable offence (that is any offence punishable by imprisonment under the National Police Records (Recordable Offences) Regulations 2000). Recordable offences include inter alia begging, theft of a bicycle, public drunkenness, trespass and impersonating a policeman.
b) Retention of DNA samples:
A DNA sample is the actual, biological sample supplied, such as a mouth swab or blood. DNA samples would be destroyed automatically, within 6 months. The obligation to destroy would be set out under the proposed regulations.
• Assessment: the European Court noted the particular sensitivity of retaining samples (§120) and the reduced margin of appreciation available, given that most Council of Europe states require immediate destruction of samples (§112 and §120). This proposal for automatic destruction appears to reflect the terms of the judgment.
c) DNA profile retention and fingerprint retention for adults:
A DNA profile is the numerical information taken from the DNA sample and loaded on to the DNA database. Adults who are arrested and not convicted of any recordable offence will have their profiles retained for 6 years. The profiles will be automatically deleted after this period.
Adults who are arrested and not convicted for serious violent, sexual or terrorism-related offences will have their profiles retained for 12 years. The profiles will be automatically deleted after this period.
• Assessment: The European Court criticised the previous system for “the blanket and indiscriminate powers of retention” (§125). The application of two different detention periods based on the nature of the offence for which an individual is arrested, would appear to respond to the Court's criticism of an indiscriminate approach. However, the question remains whether the proposed retention of DNA profiles and fingerprints is proportionate and strikes a fair balance between the competing public and private interests, as required by the European Court’s judgment. In this respect, it should be noted that the European Court observed that the strong consensus that exists among contracting states in this sphere is of considerable importance and narrows the margin of appreciation in this field (§112). The Court noted in particular that “in the great majority of the Contracting States with functioning DNA databases, samples and DNA profiles derived from those samples are required to be removed or destroyed either immediately or within a certain limited time after acquittal or discharge” (§108). The Court referred also to Article 8 of Committee of Ministers Recommendation Rec(92)1 which states inter alia that: “measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used. The results of DNA analysis and the information so derived may, however, be retained where the individual concerned has been convicted of serious offences against the life, integrity or security of persons. In such cases strict storage periods should be defined by domestic law”.
The European Court stated in particular that the regime in Scotland which provides for retention of DNA for unconvicted adults only in cases of serious offences and then only for 3 years, was in accordance with Committee of Ministers Recommendation Rec(92)1. The Court also stated that “weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants’ private data compared to that of other unconvicted people” (§123).
In the light of all the above, it seems that the proposed measures and in particular the proposal to retain profiles for 6 years following arrest for non-serious offences do not conform to the requirement of proportionality.
• The authorities’ comments in this respect would be useful.
d) DNA profile retention and fingerprint retention for children - aged 10-18:
Children arrested but not convicted for a recordable offence on one occasion only will have their profiles retained for 6 years. The profile will be deleted after 6 years or on their 18th birthday, whichever is sooner. Children arrested and not convicted for a recordable offence on more than one occasion will have their profiles retained for 6 years. Children arrested and not convicted for serious violent, sexual or terrorism-related offences will have their profiles retained for 12 years. With the exception of those children arrested only once for a recordable offence, the provisions for children are the same as those for adults. Therefore the assessment made in section c) above also applies here. In addition, the Court found that the retention of profiles for children is especially harmful (§124) and stressed theprovisions of Article 40 of the UN Convention on the Rights of the Child 1989 on the special treatment of minors in the criminal justice sphere.
• Assessment: Given the close similarities in the provisions for retaining profiles of children and adults, the European Court's specifications on the vulnerability of children as compared with adults and the particular importance on the treatment of minors in the criminal justice system, the proposed measures do not appear to respond to the requirements of the judgment.
• The authorities’ comments in this respect would be useful.
e) Review mechanism for destruction of profiles:
The current system will remain in place. As before, a request for a profile to be destroyed in exceptional circumstances (such as wrongful arrest/mistaken identity) is made to the Chief Constable of the relevant police force. The criteria against which such a review is to be considered may be codified.
• Assessment: In relation to the existing system, the European Court stated that “...there is no provision for independent review of the justification for the retention according to defined criteria.” (§119). Continuation of the existing system does not appear to respond to the Court's findings on this point. It is noted that a request for destruction will continue to be made to the Chief Constable of the police force that initially took the DNA sample and profile. This does not appear to correspond with the need for an independent review. It is noted that such a decision would be subject to judicial review. However, this is the same as the position considered by the Court in the judgment. In addition, the European Court has questioned the effectiveness of judicial review when considering proportionality in light of Article 8 (see McCann, Application No.19009/04). Thus continuation of the existing system, which was found to be in violation of the Convention – in particular in relation to the lack of independent review – does not appear effectively to execute the judgment. As the reference to “defined criteria” is highlighted by the Court along with the essential requirement for to have “clear, detailed rules” (§99), codification of such criteria would be welcome.
• The authorities’ comments in this respect would be useful.
f) Evidence relied upon to support the existence of the 6- and 12-year rules:
Research by the Jill Dando Institute is cited along with two US academic studies. There has also been a review of data held on the Police National Computer (PNC).
The approach of the authorities to the application of the academic studies is that “we ...believe that the risk of offending following an arrest which did not lead to a conviction is similar to the risk of reoffending following conviction.” (§6.10 of the consultation). This strongly contrasts with the Court's concern about “the risk of stigmatisation [and] ... the right of every person under the Convention to be presumed innocent includes the general rule that non suspicion regarding the innocence of an accused may be voiced after his acquittal.” (§122). In addition, in W. against the Netherlands (application No. 20689/08, decision of 20/01/2009.) retention of DNA material (for convicted persons) was accepted where it was retained fora “prescribed period of time dependent on the length of the statutory maximum sentence that can be imposed for the offence committed.” The approach of the authorities does not consider retention on the basis of any link with the maximum sentence but rather on possibility of future offending.
The European Court stated that “any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.” (§112)
• Assessment: Given the United Kingdom’s claimed “pioneer role”, reliance only on academic studies, two of which do not relate to the United Kingdom and an approach to those studies which appears to rest on the principle that unconvicted individuals will commit criminal offences, do not appear sufficient to justify retention periods which do not appear to be in conformity with the Court’s judgment.
• The authorities’ comments in this respect would be useful.
g) Proposed action for samples and profiles taken prior to the judgment:
There is a total of around 850 000 “legacy” profiles on the database. For around 350 000 of those it is clear that individuals were convicted or acquitted. Of the profiles where the status of the individual is clear, the United Kingdom proposes to apply retrospectively the retention periods set out in the consultation paper (see sections c and d above). There are around 500 000 profiles for which it is unclear if the individual was convicted or acquitted. No decision has been taken yet on the fate of these profiles. The United Kingdom authorities believe it is possible that some of these profiles may be linked with criminal records but they are unable to check this easily. Further research is being done to establish whether it is in fact possible to cross-reference this information or whether all 500 000 profiles should be deleted.
• Assessment: as it seems that the proposed retention periods are disproportionate, particularly in relation to non- serious offences, the retrospective application of those retention periods to legacy profiles would be equally inappropriate.
• Further information is awaited on the measures proposed to deal with the 500 000 profiles which cannot be linked to a police record.
h) Proposals in relation to the retention of fingerprints:
The proposals for retention of fingerprints are the same as those for the retention of DNA profiles. Fingerprints will be retained for 6 years for any recordable offence and 12 years for more serious offences.
There is no mention in the consultation of any review procedure available in relation to the retention of fingerprints. The European Court stated that “...because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints. However, the court ... considers that ...in determining the question of justification, the retention of fingerprints constitutes an interference with the right to respect for private life“ (§86). Further, the Court’s finding of a violation relates equally to fingerprints as to DNA samples and profiles.
• Assessment: In the light of the above, the assessments set out in response to the proposals on retention of DNA samples and profiles are also applicable in relation to fingerprints.
The authorities' comments in this respect would be useful.
<snip>
The Deputies decided to resume consideration of this item at their 1072nd meeting (December 2009) (DH), in the light of information to be provided on general measures.
(The extract above comes from a document describing the current state of execution for all pending cases against the UK (pdf). Links to reference material have been added.)
What's next? The government will likely announce a new bill in the Queen's Speech on 2009-11-18. The ultimatum to the Association of Chief of Police Officers to withdraw its DNA retention guidance to chief constables, sent by the Equality and Human Rights Commission, expires next week as well. And, the Committee of Ministers will conduct another progress assessment at its December meeting, three days short of the first anniversary of the ruling in S & Marper v. UK.
Secret evidence is evidence held by the government against an individual that neither the individual, nor their legal representation, may see. Its use in UK courts is fundamentally wrong. The Number 10 website approved a petition I submitted calling for an end to the use of secret evidence. The text benefited from reviews and suggestions from other members of the Coalition Against Secret Evidence (CASE). Please read the petition and sign it.
We the undersigned petition the Prime Minister to ensure that everyone in the United Kingdom has the right to a fair trial by ending the use of secret evidence to obstruct the judicial process.
For justice to be served, an accused person must know the case against him and be able to scrutinise and challenge the evidence in a fair, open and public hearing.
The injustice caused by the use of secret evidence is illustrated by Dinah Rose QC, who recalled how a man in a bail hearing asked the judge: “why are you sending me to prison?” to which the judge replied: “I cannot tell you that”. Rose added, “They simply took him to jail, without any explanation at all.”
Secret evidence is used to hold and detain individuals in prison and under house arrest conditions for years (affecting their families as well). It is used also in employment cases, to prevent disclosure of information about the role of Britain’s security and intelligence agencies in complicity with torture, and to refuse or revoke British citizenship.
The government must fully restore habeas corpus rights to the British justice system and sweep away all vestiges of a secretive process that is effectively a denial of justice.
Sign the petition on the Number 10 website.
(Related post: Secret evidence undermines the right to a fair trial.)
Following the European Courth of Human Rights ruling in S and Marper v. UK, we suggested that to fulfil the obligation of cessation all that was required is a change of the current police guidance to keep adding and holding on to DNA profiles, fingerprints and palm prints of innocents. A legislative change is needed only to comply with the obligation of non-repetition to ensure that no guidelines similar to the current police guidance can be issued in the future.
Last week, the Equality and Human Rights Commission (EHRC) requested the Association of Chief Police Officers (ACPO) confirmation within 28 days that it will withdraw its DNA retetention guidance to chief constables or face potential enforcement action. John Wadham, Group Director Legal at the EHRC said:
We outlined our concerns about the DNA database to Government and the Council of Europe’s Committee of Ministers earlier this year. We're pleased with the decision to drop the proposal to hold on to the DNA of innocent people for up to 12 years, as removing innocent people from the database was one of our recommendations.
We can see no reason now why Association of Chief Police Officers (ACPO) should not change its guidance on the retention of DNA. The Commission recognises that ACPO had been put in a difficult position by the government by this issue, which is why we are offering them the opportunity now to amend their advice and avert future legal action.
The police are at the forefront of the fight against crime. The importance of this fight cannot be underestimated but it should comply with the Government’s legal obligation to protect the privacy of innocent people, as outlined by the European Court.
As for the obligation of non-repetition, the government will announce its new proposals in the Queen's speech on 18th November, however the Daily Mail got hold of documents indicating that the Home Office is still keen on retaining DNA profiles of everyone:
Leaked emails reveal that Home Secretary Alan Johnson plans to defy the European Court of Human Rights by allowing police to keep swabs and fingerprints of those who are arrested but never convicted.
Even children cleared of any wrongdoing would have their DNA kept on a Government database for at least three years.
The emails also show that Mr Johnson is trying to recruit relatives of high-profile murder victims to help with the 'media handling' of the policy.
This month, the National DNA Database (NDNAD) grew to 5,910,172 subject profiles (estimated to be that of 5,094,568 individuals) thanks to the current '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'.
Jean Charles de Menezes was shot four years ago by a police officer from CO19, the Metropolitan Police Service specialist firearms unit. Twenty-one armed officers from CO19 are now carrying out routine patrols in London, with this number to double next month. The decision to have armed patrols on foot and motorbike in the street of London, is a radical break from the principles of policing the British police has been know for. Amazingly for a decision affecting so deeply the relationship between the police and Londoners, it was apparently taken without informing the Commissioner of Police of the Metropolis, anyone at the Metropolitan Police Authority (MPA) or the London Mayor. No consultation with Londoners either. Several MPA members have already publicly expressed their opposition to this plan.
Jennette Arnold said:
We have spent years working on relations between the communities I represent and the police and – thanks to this hard work – they have never been better. All that hard work might as well be thrown away and the contract between the community and the police torn up if this is the future of policing in London.
No one asked us or the people I represent if this was acceptable and when they do I shall tell them it isn't. It isn't acceptable to throw away the principle of policing by consent. I will fight this tooth and nail.
Jenny Jones wrote:
The change was also made without any discussion of the rules of engagement – exactly how does one use a Heckler & Koch at 800 rounds per minute on densely populated housing estates and streets if you meet a sudden threat? This move has all the necessary ingredients of a tragedy waiting to happen. Reactive armed policing is very different. There is usually some foreknowledge of numbers, range, area etc but unexpected encounters with gunmen can make for unpredictable outcomes.
Even highly trained officers can make mistakes. I don't mean the kind of stupid mistakes that lead to the death of Jean Charles de Menezes, I mean the kind of mistake where you shoot yourself in the foot and leg when your gun gets caught in your clothing (Jan 2006), or where you shoot a fellow officer in the chest on a firing range. Guns are dangerous weapons, even in skilled hands.
I don't remember any MPA members coming forward to express disagreement when the MPA promoted Cressida Dick – the gold commander in charge of the operation in which a CO19 officer shot Jean Charles de Menezes – to Deputy Assistant Commander in September 2006 and to Assistant Commissioner Specialist Crime in June this year. The shoot to kill policy that was in place was secret at the time. The just discovered introduction of regular armed police patrolling the streets of London may have remained secret if it hadn't been revealed by the Police Review magazine.
Two years ago, the IPCC decided not to discipline Cressida Dick (this was welcomed by the MPA). Recently, the IPCC stood by its decision that no officers involved in the operation that led to shooting of de Menezes should face disciplinary proceedings.
Vivian Figueiredo, cousin of Jean Charles de Menezes reacted to this decision:
The inquest jury decided that Jean was not killed lawfully, that many terrible mistakes were made and they did not accept police officers’ accounts. Yet the IPCC think no-one should ever be held accountable for this. Our family and the British public have been completely failed by this decision, we all live under the terror that the same thing could happen again. Nobody should accept this.
This much is true, a new play Paul Unwin and Sarah Beck about what happened before, during and in the years following Jean Charles de Menezes' death is performed from 2009-10-27 til 2009-11-21 at the Theatre503. Paul Unwin explains the title:
The reason it is called This Much is True is because there is a lot of ambiguity of what is true and I think probably we have put it more clearly than anyone as to exactly what happened and why he got shot. I think I can put my hands up and say, for all the research we have done, the people we have spoken to and reading the very long inquest, we have a very clear sense of why the tragedy occurred.
What has then emerged is a play which really has voices never heard before and you get a very diverse sense of the experience of what happened.
Update: 'I wish to be clear: there have not been any routine armed foot patrols, and nor will there be any.' said Sir Paul Stephenson.
First published on 2009-10-25; last updated on 2009-10-28.
More of the same (for longer)
Recent news headlines (e.g., Guardian and Daily Telegraph) may have given you the impression that the Home Office had done a U-turn and dropped its plan to retain DNA of innocents. These articles were misleading. No such radical change has happened. What the government has announced is that it is again delaying its response to the ruling of the European Court of Human Rights (ECtHR). In the meantime it'll keep adding more and retaining DNA profiles of innocents and guilty alike.
Lord Brett explained the government's position in the Lords debate about the Policing and Crime Bill:
Given that strength of feeling, we feel that it is important to move forward with consensus, if possible. We therefore accept the view that this issue is more appropriately dealt with in primary legislation and have decided to invite Parliament to remove Clauses 96 to 98. As soon as parliamentary time allows, we will bring forward appropriate measures which will place the detail of the retention periods in primary legislation, allowing full debate and scrutiny of the issue in both Houses.
Baroness Neville-Jones summed up the frustration of everyone else:
Our problem is that the effect of withdrawal and no replacement in legislation results in yet further delay. The relevant judgment occurred in December last year; the consultation on the Government’s recommendation closed at the beginning of August—more than two months ago—and the whole matter has been debated for several years. The Government could have acted administratively to change policy without waiting to change the law, but they have chosen not to.
Not much of a surprise. Here's the relevant paragraph in Sentenced to genetic probation an article I wrote five months ago:
Perhaps, the Home Office realises how weak its arguments are as it is keen on avoiding parliamentary scrutiny. Several MPs have repeatedly demanded that basic protections regarding personal data, the DNA database and its oversight be embodied in statute after been given enough Parliamentary time. The Home Office has instead pushed through Parliament clauses 96 to 98 of the Policing and Crime Bill, which is now reaching Committee stage in the Lords. These give a blank cheque to the Secretary of State to implement by statutory instruments changes to the retention, use and destruction of DNA profiles and samples, fingerprints, footwear prints and photographs. A draft statutory instrument (zip) to implement the regulations proposed in the consultation has already been published. Only a week after the consultation. Will the Home Office read any response to its consultation?
No legislative change, only a change of the current police guidance, is required to cease 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 demanded by the obligation of cessation from the ECtHR ruling. The change of law is needed only to comply with the obligation of non-repetition to ensure that the police can't issue guidelines similar to the current ones in the future.
Less of the same
The National Police Improvement Agency (NPIA), custodian of the National DNA Database (NDNAD) published the NDNAD Annual Report 2007-2009. Here's the summary of key facts and figures starting the document:
As at 31 March 2009:
- There were an estimated 4,859,934 individuals whose DNA profile was held on the database, an 11% increase on a year earlier, with slightly fewer profiles added in 2008/09 than in 2007/08
- 36,093 of the subject profiles related to volunteer samples
- 4 out of 5 profiles held on the database were from males
- The breakdown of subject profile records by ethnic appearance based on the judgement of the sampling police officer was: Asian (5.2%), Black (7.3%), Chinese, Japanese, or any other South East Asian (0.6%), Middle Eastern (0.7%), Unknown (9.4%), White North European (74.8%) and White South European (1.9%)
- The majority (58%) of subject profiles at the time they were added to the database related to those aged 16-34 (9% aged 16-17, 13.2% aged 18-20, 12.9% aged 21-24, 23.1% aged 25-34)
- 350,033 crime scene profiles were retained on the database
- During 2008/09, almost 6 in 10 crime scene profiles loaded to the NDNAD were matched to a subject profile.
Chief Constable Peter Neyroud, CEO NPIA, starts his foreword with 'The NDNAD continues to provide the police with the most effective tool for the prevention and detection of crime since the development of fingerprint analysis over 100 years ago.' As can be seen above, detections of crimes in which a DNA match was available though didn't make it to the summary, however the full report includes some interesting data about these crime detections. With the large number of profiles added (553,880 DNA profiles of individuals and 52,494 DNA profiles of crime scenes added on average each year, for the 2001-2009 period), intuitively the number of matches and detections should keep going up. This is not the case, numbers have gone down since 2005.
('Matches' include cases where the individual had an
innocent reason for
being at the crime scene and cases where it was not possible to take
the investigation forward. A 'DNA detection' means that the crime was
cleared up and a DNA match was available. 'Additional
detections. occur when, for example, a suspect, on being presented with
DNA evidence linking him to one offence, confesses to further
offences.)
There is not enough data in the report to understand exactly why DNA matches and crime detections in which such a match is available are down. These trends do raise questions about the efficacy of the NDNAD. One possible scenario could be that the bulk of crime detections happens very soon after a profile is loaded, i.e. retaining them may not help clearing crimes. This scenario would be consistent with the number of detections going down while the NDNAD grows larger and larger. It would also be consistent with the theory of criminal specialisation where criminals go on to commit related offences only shortly after they start their criminal career. I've sent a Freedom of Information request to the NPIA to find out if there's data available about how long the scene of crime DNA profile and the subject DNA profile that match in a detection had been retained for. This may help support or invalidate this scenario.
The NDNAD Annual Report has one page (p.44) about Freedom of Information requests: '[these] received mainly from the media, cover largely the same issues. These can also be complex and wide ranging, as shown by the following example'. The example included is the uncredited full text of a request I made last year!
The UK Border Agency announced its Human Provenance Project 'to help identify a person’s true country of origin' from their DNA. This racist scheme, confusing ethnicity and nationality, has been rubbished by scientists finding it 'flawed', 'naive' and 'horrifying'. The UKBA appeared to have second thoughts but is still going ahead with it.
In a BBC interview, Professor Gloria Laycock, the director of the Jill Dando Institute, distanced herself from the research included in the Home Office consultation: '[The Home Office] policy should be based on proper analysis and evidence and we did our best to try and produce some in a terribly tiny timeframe, using data we were not given direct access to. That was probably a mistake with hindsight, we should have just said "you might as well just stick your finger in the air and think of a number".'
The first 'DNA clinic' organised by Liberty with Diane Abbott MP happened at the end of September. Anna Fairclough recounts how it went. She found 'that many people are profoundly disturbed by the government's determination to retain their DNA when they have not been convicted of a crime. The demand was such that we could probably fill DNA clinics around the country if we had sufficient resources to staff them.' The racial bias of the NDNAD was reflected in the attendance, 'it was no surprise that we had a clinic full of young black men and boys, smart in their school blazers and flanked by worried parents'.
The United Arab Emirates intend to add the DNA profiles of all UAE residents to its DNA database. Dr Ahmed al Marzooqi, the director of the UAE National DNA Database, said 'The aim is to eventually have a profile of the entire population. Our goal is to sample one million per year, which could take as long as 10 years if you factor in the population growth.'
Techno utopians with a Jesus phone and no concern for privacy can waste their money on an iPhone wallpaper of their DNA profile. Those with an Android phone, can look forward to an application to assess products, when shopping, for compatibility with their genome.
A large number of respondents, both organisations and individuals, to the Home Office consultation on the future of the National DNA Database (NDNAD) demonstrate once more that the public is very concerned by the government's plans and is keen to engage in a serious debate. With 503 respondents, it reaches fourth place in a league table of recent consultations. Ending violence against women is an issue which deservedly receives wide support by large organisations such as Amnesty International UK, which explains having received an order of magnitude more responses than any of the included consultations.
| Consultation | Organisations | Individuals | Total | Closing date |
| End violence against women | (1) | (1) | 8,700 | 29 May 2009 |
| Consultation on protecting animals used in scientific research | 87 | approx. 1068 | 1,155 | 3 Jul 2009 |
| Licensing of wheel clamping (vehicle immobilisation) companies | 38 | 523 | 562 | 23 Jul 2009 |
| Keeping the right people on the DNA database | 90 | 413 | 503 | 7 Aug 2009 |
| Protecting the public in a changing communications environment | 55 | 167 | 222 | 20 Jul 2009 |
| Review of the Regulation of Investigatory Powers Act | 153 | 68 | 221 | 10 Jul 2009 |
| PACE review: proposals in response to the review of the police and criminal evidence act 1984 | 187 | 18 | 205 | 28 Nov 2008 |
| Controls on deactivated firearms | 73 | 103 | 176 | 25 May 2009 |
| Identity cards act secondary legislation consultation (2) | 42 | 127 | 169 | 13 Feb 2009 |
| Protecting crowded places | 101 | 4 | 105 | 10 Jul 2009 |
| Forensic Science Regulator | 74 | 16 | 90 | 9 Apr 2009 |
| Proposal to increase fixed penalties for two types of driving offences | 11 | 15 | 26 | 8 Dec 2008 |
(1) 'we were unable to provide the information broken down between organisations and individuals in regard to the consultation “End violence against women”. This is because the department has received a large number of responses on this consultation and are still sifting through them to establish the types of responses received. A detailed list of those responses will be available in the consultation paper that will be published as standard at a later date.'
(2) 'We have also provided you with the response figures in relation to the consultation on ”Identity cards act secondary legislation consultation” even though under Section 21 of the Freedom of Information act we are not obliged to do so as it is already in the public domain. We have included this information below in the interests of being helpful and you can find more detailed information on this consultation and the responses received, on page 24 of this link' (pdf)
Such a large number of responses unfortunately risks to overwhelm the Home Office as it already finds it difficult to deal with consultations with less than half the response rate, such as the PACE review one.
On the page the Home Office maintains for the PACE review consultation, on 2009-07-10, an information box was added that read 'The government’s proposals in response to the Review of PACE (new window) were subject to a 3 month public consultation at the end of 2008. The summary of responses and the table of respondents summarised comments will be published here before the end of August 2009.' On the 2009-09-01, I asked Alan Brown, Home Office Policing Powers and Protection Unit, who is in charge of this consultation as well as the NDNAD one if there was any additional delay. His response: 'apologies that the document was not published as planned. The draft document is currently being considered by the PACE Review Board and we will look to publish as soon as possible.' The information box has been silently updated to 'The summary of responses and the table of respondents summarised comments will be published here before the end of autumn.'
It is unclear why the Home Office appears so reluctant to provide more data concerning its consultation 'Keeping the right people on the DNA database'.
The data published in the table above was requested on 2009-08-09. For two months, the Home Office has been considering whether to refuse disclosing the data under the exemption contained within sections 22(1)(a) and 22(1)(b) of the Freedom of Information Act 2000 (Information intended for future publication). (pdf)
I also requested the Home Office correspondence with Professor Ken Pease and the Jill Dando Institute in relation to the consultation. This was exempted from disclosure using section 35 (formulation or development of government policy) of the Freedom of Information Act 2000. 'The information we are withholding under section 35 covers advice and policy discussions between officials, as well as communications between Ministers, on policy relating to the European Convention on Human Rights and its impact on police practices, and the Police and Criminal Evidence Act 1984 which provides the basis for the taking and retention of DNA and fingerprints.' (pdf)
Yet another related request was for the statistical information used to provide an informed background to creating the consultation and its annex. A response was delayed until the closure of the consultation... and then the information was exempted from disclosure using section 35(1)(a) of the Freedom of Information Act. 'This provides that information can be withheld where its disclosure would prejudice the formulation or development of government policy. Section 35 is a qualified exemption and as such requires the conducting of a Public Interest Test (PIT) to balance the considerations favouring disclosure against those favouring non-disclosure.' (pdf)
It is disappointing to find that Freedom of Information requests to the Home Office that are related to the DNA consultation end up being delayed and often exempted when there's clearly a demand for more information of better quality.
(On a related note, there has been some progress with two other of my freedom of information requests. Some of the notes from meetings of the NDNAD Ethics Group and some of the minutes of the National DNA Database Strategy Board that were missing have been added to the respective Home Office and National Police Improvement Agency websites. Minutes that are still missing should be added before my requests are closed.)
[Report of the recent Stop MI5 blackmail! public meeting I wrote for the Campaign Against Criminalising Communities.]
Muslim community workers allegedly blackmailed and harassed by MI5 in an attempt to recruit them are exposing these threat tactics. When they refused to cooperate, MI5 acted on its threat and some were detained and interrogated on trips abroad. These six young men, working for the Kentish Town Community Organisation (KTCO) were first targeted by MI5 in 2008. In August last year, they started talking to the KTCO directors about the harassment.
Shar Habeel Lone, KTCO Director, explained at the recent Stop MI5 blackmail! public meeting that KTCO flagged up this harassment with the local borough commander of the Metropolitan Police Service and with Frank Dobson MP, who flagged it up to the Home Office. Mohamed Nur, one of the youth workers who had been approached by MI5, commented, ‘We had somewhere to go, we had people we can talk to, we had people we can trust. What about those that have no one to go to?’ KTCO also went to senior police officers at Scotland Yard, to the Muslim Safety Forum, and wrote to Lord justice Mummery, president of the Investigatory Powers Tribunal (oversight committee on what the intelligence services do in the UK). As a result MI5 initially backed off. However, eight months later they were harassing another KTCO youth worker.
On 21 May 2009, The Independent published an account on its front-page: ‘Five Muslim community workers have accused MI5 of waging a campaign of blackmail and harassment in an attempt to recruit them as informants. The men claim they were given a choice of working for the Security Service or face detention and harassment in the UK and overseas’. None of them ‘has ever been arrested for terrorism or a terrorism-related offence.’ They were asked to ‘Work for us or we will say you are a terrorist.’
This brings us to the public meeting. Lone suggested that the British Muslim communities across the UK today are under siege, finding very little support. ‘They feel tarred with the same brush of terrorism, of being communities that don’t fit in, even though some are third and fourth generation. Then you have a very powerful security service: that’s our security service, that’s the security service of British Muslims as much as that of anyone else in this country.’ The same people that are actually implementing the Prevent strategy to prevent violent extremism in the UK are being targeted by the security services, he added.
Nur recounted how this is perceived by the community they’re working with. ‘Most of the community workers that work for KTCO are from the street. We work with young people from the same streets. Some of us come from gangs and we try to get young people out of them. We’ve been running gang prevention team and drug rehabilitation workshops for years, telling young people of the importance of education and showing them ways other than crime, and mentoring young people to become self confident so they can see a positive future. Some of these youths come up to us and have now become youth leaders themselves. They say to us how ironic it is that when we were in gangs we were being pressured by the police, and after we become straight we’re still being pressured by the police and MI5.’
‘The security services are there to protect all of us. We commend the work they do,’ says Lone. ‘Where they get it so wrong is where we have a real problem. The other problem we see as British Muslims and those of us who work with youth of all backgrounds is that there are very sane voices within the security services themselves which are not heard. In June 2008, a couple of months before we flagged up this incident the very first time, there was a report by the MI5’s behavioural science unit Understanding radicalisation and violent extremism which said: ‘Traditional law enforcement tactics could backfire if handled badly or used against people who are not seen as legitimate targets.’ There are good people who are not being heard. The people that seems to have sway over policy are either not the right people or not educated enough in this area.’
Saghir Hussain of Cage Prisoners, and Frances Webber, lawyer, both pointed out that MI5 used similar tactics 30 years ago with the Irish community. As an explanation for such targeting of communities, Hussain suggested that security services people may be rather desperate. If there’s no security threat, there can be no result, and hence no career advancement or further expansion of the so-called security agencies. There are plenty examples of harassment. Muslims attending Mosques taken into a car and threatened by a plainclothes officer. The North West 10 Pakistanis students labelled as terrorists but not accused of anything. The Forest Gate shooting and arrest. A Kurdish newspaper publisher followed in Haringay when visiting newsagents. People so afraid that they’re not travelling abroad or without their family – to avoid the border interviews under Schedule 7 of the Terrorism Act.
Webber detailed the story of a young man brought up here in the UK, who moved to Syria in March 2007 and was tortured there. Deported back to the UK in June 2007, he went home after being interrogated. In his first month back in the UK, he was approached by MI5 and told to report on people in the Mosque. In July 2007 he was put under a control order and had to move 100 km out of London and stay indoor for 14 hours a day. After a month he was arrested in another town for breach of conditions and has been in Belmarsh since 2007. A judge revoked his control order as the Home Office refused to justify it. However the judge did not quash the control order so this man still has to face the consequences of the breach of the control order that has been revoked. The Home Office is using this to impose another control order. A few control orders are enough to create a climate of fear in the community: ‘This is what may happen to you if you don’t cooperate.’ The secrecy under which MI5 operates, supported by judges that will not put pressure on MI5 to disclose any information at all, forces speculation and guesswork. Weber comments, ‘When you can’t see what government officials are doing, who is to say they’re not doing wrong? The demand has to be accountability. It’s been said many times: sunlight is the strongest disinfectant. MI5 and the Security Services must be properly and publicly accountable. There must be an end to the punitive sanctions based on suspicions that are never explained because lives are being destroyed by that secrecy.’
Lone raised the wider concern, ‘This sort of situation is clearly something that every decent British citizen needs to think about and have something to say about.’ This was answered by many of the other speakers. Alex Goodman, Camden Councillor, Green Party, explained that his initial reaction when invited was that he was afraid to get involved with this issue. However when compared to those affected, those facing coercion of threat, he soon realised it would be pathetic to be afraid to come to this meeting. Goodman offered, as a Camden Councillor, to raise this issue in Chamber and his solidarity. He pointed out the courage of these young men in exposing the MI5 blackmail tactics stands out. Hussain expressed that this courage was necessary to make the threat stop, ‘Very few have the courage to expose such harassment. MI5 strives on secrecy. Being vocal is the best defence. By expressing this kind of abuse it stopped it.’
Les Levidow, CAMPACC, explained that their campaign usually deals with cases of people accused of terrorism. This case is different as these young men have not been accused of anything! Unusual, but the tip of an iceberg. Levidow reminded us one reason such widespread practices rarely gain publicity: refugees, who are often targeted, face higher stakes because of the threat of deportation, possibly to torture or worse. ‘In all the cases we know of people who have been asked to become informants for MI5, it’s been very clear, they have been asked to collect information on political activities and ideas.’ The Prevent strategy, short for Prevent Violent Extremism, defines ‘extremist ideology’ very broadly. ‘Anyone who opposes British foreign policy, which really should be called plunder and terrorism around the world, can be classified as an extremist or someone who has extremist ideas.’ This leads to systematic surveillance of all political activities and even political views among Muslims and migrant communities in this country.
Having the courage to go public was acclaimed by all speakers as essential to lift the veil of secrecy and help stop the threats from MI5. The courage to support those exposing these threats was considered key. Changes to the system were advocated by Lone, ‘There needs to be greater competent oversight of the security services and better governance; there needs to be real competent oversight. There needs to be greater accountability; and as part of that greater accountability there needs to be an easier process of redress. When you’re targeting disadvantaged communities and people who are already alienated, how many people, and a lot of them who are not as educated perhaps as others and who aren’t used to writing letters, how are you going to have a channel that’s fair for redress? Finally, we want more common sense. Targeting the very people that you need on side is not a particularly smart strategy.’
On 28th July 2005, I was unlawfully arrested at Southwark tube station when attempting to take the tube after work to meet my wife. Chief Superintendent Wayne Chance, Metropolitan Police Service Borough Commander for Southwark, has eventually apologised to my wife and I for their actions and the trauma it caused us:
I would like to apologise on behalf of the Metropolitan Police Service for the circumstances that arose on 28 July 2005 including your unlawful arrest, detention and search of your home. I appreciate this has had a deep and traumatic impact on your lives and I hope that the settlement in this case can bring some closure to this.
I shall ensure that the officers concerned are made aware of the impact of the events of that day and also the details of the settlement in this case.
We are happy to be able eventually to put this behind us.
Just over four years ago, I entered the tube station without looking at the police officers who were standing by the entrance. Two other men entered the station at the same time. My jacket was allegedly too warm for the season. I was carrying a backpack. While waiting for the tube, I looked at people coming on the platform, I played with my mobile phone, I took a piece of paper from inside my jacket.
The police found my behaviour suspicious and instigated a security alert. They surrounded me. They asked me to take off my backpack. They handcuffed me in the back. They closed and cordoned off the tube station. They stopped and searched me under section 44 of the Terrorism Act 2000. They emptied my pockets. They loosened my belt. Explosive officers checked my backpack, gave the all clear and joked about my laptop. The handcuffs were taken off (for a few minutes) and some of the stuff I was carrying in my pockets was given back to me.
This should have been the end of the matter. Instead, an officer informed me “[I] was under arrest on suspicion of causing a Public Nuisance”. They then took me to Walworth police station. They processed me. They took photographs, DNA samples, fingerprints and palm prints. They searched our flat. They interviewed me. Nine hours later I was granted bail. One month later when I surrendered to custody, they said they have decided to take no further action. It takes a further month and half to get my possessions back. Three months after the arrest, the Police National Computer was still listing me as under arrest.
I was arrested for a made up offence most likely in order to justify their having closed the tube station. This unlawful arrest caused further unnecessary expense from public funds and considerable distress to my wife and I. Despite all the available evidence (bar CCTV footage in the station, which the police never seized), investigators from the Met’s Directorate of Professional Standards failed to find that my arrest was unlawful: “there were 'reasonable grounds' to suspect an offence had been committed by Mr Mery and as such the arrest was both lawful and justified”. The intervention of a senior officer was required: “I disagree with that conclusion in respect of the arrest. I agree that the stop and search were lawful under that Act but I believe the arrest was unlawful.” That was still not enough for the police to apologise. The Independent Police Complaint Commission was of no help as “[i]t is not within the remit of the IPCC to direct the Metropolitan Police Service to issue a formal and public apology for their action”.
The police apology will be shown to the officers who were involved in my arrest and the subsequent search of our flat. Being aware of the long term impact of their actions will encourage police officers to realise that arresting innocents is not the only option available to them. Letting innocents go free and safe must be possible and has to be the preferred option. I hope that lessons will be learnt and that in future when mistakes are made they will be acknowledged immediately.
My DNA samples were destroyed and my DNA profile, fingerprints, palm prints and PNC record deleted two years ago. The litigation files maintained by the Directorate of Legal Services and the investigation files compiled by the Directorate of Professional Standards will be retained for a further six years, after which there should be no trace at the Metropolitan Police Service about this innocent.
We are very grateful to Sarah McSherry, Head of Actions
against the Police Department at Christian Khan, for her formidable
support in achieving this result. We would also like to take this
opportunity to express our thanks to the many individuals who
encouraged us in this long fight for our rights.
The full saga is published at gizmonaut.net/suspect.
A few posts on this blog featured how more than sixty years ago surrealist texts thought to be coded messages of anarchists, and more recently kids' scribbles and drawings, doodles and bad poetry have been construed as potential evidence:
David Edgar's article on CiF, The misreading of fiction as fact makes suspects of us all, adds a few more examples to this list and suggests these show a failure to distinguish between fantasy and reality:
Behind these attacks on works of art is the idea that what artists do is an essentially trivial pursuit, easily trumped by considerations of public security, health and safety, or victims' rights. Art isn't trivial, but it's true that no artists have lost their liberty or their reputation by being taken literally. What's happening now is that an erroneous misreading of fiction as fact is being applied in places where artistic integrity cannot be readily employed as a defence, potentially criminalising anybody who indulges in violent or sexual fantasy (in other words, all of us).
What's significant about the recent attempted prosecutions is not just that they are directed at schoolchildren, civil servants and shop assistants rather than people who fantasise for a living. Often brought under serious legislation attracting serious penalties, they have had real and deleterious effects on people's lives.
Arguing that eight email messages taken out of context are thought to be coded messages is among the few public evidence used to hold young Pakistani student as category A prisoners. The ill defined concept of public or national security is also invoked to justify the use of secret evidence in judicial proceedings.
Be literal, be safe!
This past week-end, as many other households, I received a letter from my local council's Electoral Services Manager. It was accompanied by a Voter Registration Form and a freepost envelope. I considered ignoring it, but soon realised that this was not option. It also became the occasion to shatter a few misunderstandings I had about UK voting registration.
Here's the cover letter interspersed with my comments:
Dear Resident
Re: Voter Registration Form Reminder
In early August, we sent you a voter registration form. We've not received your completed form yet, so please find enclosed another form, which you must complete and send to us. It's easy to fill in. Just write the names of all eligible voters living in your household or let us know if there's no one eligible living there. Simply send it back to us in the freepost envelope provided.
I never received this earlier form. I'm glad to learn it's "easy", "simply", peasy!
First interesting technicality is "eligible voters". To vote in UK Parliamentary general elections, one needs to be British, a citizen of the Republic of Ireland, or a qualifying Commonwealth citizen (with leave to enter or remain in the UK, or not requiring such leave); while to vote in local elections, one needs to be British, a citizen of the Republic of Ireland, a citizen of a European Union country or a qualifying Commonwealth citizen. Long term residents, even with an indefinite leave to remain, who are not from the Commonwealth or the EU, never get the right to vote for local elections. This is discriminatory.
Here's why you need to fill and send us your voter registration form:
1. Make sure you have the right to make your voice heard in next year's elections. The information on voter registration forms is used to produce a Register of Electors (or Voters List), published on 1 December each year. To be eligible to vote in the next local and general elections, you must be on the register. You do not have to vote but to have the choice, you must return your form.
This is clear, I only need to return the form and register on the voters list, if I want to engage in the democratic process and use my optional right to vote. Unfortunately, as we'll see later, this will be shown to be incorrect.
2. The Register of Electors is also used by credit reference agencies. If your name's not on the register, you could find that you are unable to obtain credit for a mortgage, mobile phone, credit card or loan.
A reminder that in the UK, it is impossible to register only to vote. When one registers to vote, one also agrees for all the provided details to be passed on to the credit reference agencies. It's presented as a benefit, but one you cannot opt out of. No choice.
It is certainly possible to obtain most of the listed services without being on the Register of Electors though it may make the process a bit more difficult (I have successfully obtained a mortgage, mobile phone contracts and credit cards). If being on the Register of Electors was required for all these services, this would constitute further discrimination for residents who are not Commonwealth or EU citizen.
This is the main issue and the reason I have so far refrained to register. As a non British EU citizen, I can't vote in general elections anyway. I'd love to vote in local elections but not at the cost of surrendering more of my privacy to the big three credit check agencies. There's no compelling reason for private companies such as credit reference agencies to have details of all who register to vote. (This is made even worse by the fact that it is not possible to lock one's credit record, as is common in the US, hence further facilitating identity fraud.) A few years ago I did research whether I could register solely to vote but realised it just is not possible.
In addition to the full register, an edited register is for sale to anyone, including other commercial outfits, for any purpose. One can opt out of this register. However, opt outs never work well and it appears that no one is keen to keep producing such an edited register that only includes the names of those who have not opted out, so its existence may be limited.
(Anonymous registration is the one option available where one registers solely to vote, however, unfortunately, this is restricted to individuals whose safety would be at risk if their name or address were listed on the electoral register.)
3. In October every year, we visit households that have not returned the form so that we can get their details to go on the the register of Electors. This costs the council money, so returning your form can save us money, which we can then spend on other valuable services we provide our residents.
This is so vague, it does not work as a carrot. What is the budget for visiting households? If a substantial part of this budget is saved, to what "other valuable services" will this money be redistributed to? As is, it's not a motivation to fill in the form.
4. It is a legal requirement to return your form. Under the Representation of the People's Act 1983, if you do not return your form, you could be fined up to £1,000.
After the carrot, the stick. That's the biggest misunderstanding I had of the system. I was convinced that voting is optional - this is indeed the case. And consequently I was also convinced that registering to vote is also optional - and I was wrong. Whether you intend to vote or not, you have to register on the electoral register and have your details given to the credit check agencies.
The reference given to the Representation of the People Act 1983 is misleading. Browsing through the act I couldn't spot any mention of compulsion. The StatuteLaw database returns 78 results for a search on 'Representation of the People', so finding the right amendment is difficult and time consuming. I eventually discovered that section 23(3) of the The Representation of the People (England and Wales) Regulations 2001 (No. 341) indeed makes it compulsory to register when asked to do so by a registration officer. This amendment came into force in February 2001.
Electoral Registration Officers have a duty to ensure that every households register eligible voters. Before taking to court those that avoid registering, Registration Officers must not only send forms and visit households, but also inspect all records held in databases they have access to, such as council databases.
If you are already on the register, you still need to confirm that with us by simply sending a text message, phoning or going online - you'll find the details on your voter registration form.
Currently, canvassing is done with one form per household with space for limited personal details: surname, first name and nationality. Only one person signs the form. This will get much more personal. Section 30 of the recent Political Parties and Elections Act 2009 provides for a process of introducing individual electoral registration from 1 July 2010. In a briefing document, the Electoral Commission mentions the first stage will be "voluntary collection of personal identifiers - National Insurance number, signature and date of birth - from electors, to make sure that the conditions are appropriate before any move to compulsory provision of identifiers."
My completed form is in the post.
Much information about the Police National Computer, some well-known, some less-so, can be found in the work of the Information Commissioner's Office and Information Tribunal. I am summarising below general information about the PNC obtained mostly from a July decision notice by the Information Commissioner about the National Police Improvement Agency (NPIA), from an older decision, from last year, by the Information Tribunal about five police forces, and from the NPIA (now the College of Policing).
The PNC
The PNC is an intelligence system, designed to support operational policing. Statutory authority for the existence of the PNC is provided by the Police and Criminal Evidence (PACE) Act 1984:
27.—(4) The Secretary of State may by regulations make provision for recording in national police records convictions for such offences as are specified in the regulations.
The Chief Constables or Officers of the 43 England and Wales police forces through their Association of Chief Police Officers (ACPO) pool much of their collective intelligence on the PNC. The PNC holds conviction data gathered from the Courts (which are often referred to as ‘hard data’) and other data such as arrests and charges (which are often referred to as ‘soft data’) provided by Chief Constables. The latter includes "Non convictions summary". The PNC also identifies whether DNA and finger prints are held on an individual. The technology used is old and is planned to be updated. In addition each force has a variety of systems where intelligence is held locally. Each of the 43 police forces in England and Wales can add information to the PNC, and can also delete information.
Uses of information held on the PNC other than for operational policing purposes include providing assistance to the Crown Prosecution Service (CPS) (or any other prosecuting agency) in the prosecution of an offence, and the courts in the administration of justice; assisting organisations such as social services departments and probation services in multi-agency work to protect the public, in particular young and vulnerable persons; disclosure of information in the context of employment vetting to the CRB; and public safety and protection of life and property, for example assisting members of the public in discovering the whereabouts of missing persons.
The Europen Courts of Human Rights explained that records on the PNC are not only accessible to the police, but also to 56 non-police bodies, including Government agencies and departments, private groups such as British Telecom and the Association of British Insurers, and even certain employers. Furthermore, the PNC is linked to the Europe-wide Schengen Information System.
The PNC is not in itself a legal entity, it is a computer system maintained by the National Police Improvement Agency (NPIA). It was set up 35 years ago. The PNC contains records from a number of separate information databases. The information records stored on the PNC are described in a written answer as follows:
- Names—these records are created when individuals are arrested. They record any charges and the subsequent disposal. All recordable convictions are held on the PNC. In England and Wales, records are retained in accordance with ACPO's Criminal Records Office PNC Data Retention Guidelines (publicly available via the ACRO website). In essence all records are retained until the individual is 100 years of age. Records from Scotland are retained in accordance with their legislation and records on the PNC are deleted in the same timeframe as that of Scotland's Criminal History System (CHS).
- Crimelink—these records are constructed by the police and relate to serious unsolved crimes, where the perpetrator has yet to be identified.
- Property—these records are constructed by the police and describe stolen, lost and found items of property that are uniquely identifiable by a (serial) number.
- Vehicles—these records are made up of the key data items held by the Driver and Vehicle Licensing Agency (DVLA) that describe the vehicle and its registered keeper. This information, supplemented by any police reports relating to vehicles of interest to the police, is primarily used for roads policing purposes.
- Drivers Licences—these records are made up of the key data items from DVLA and record driver entitlement. Their use is confined to roads policing. The system was constructed to enable enquiries to be carried out efficiently and save members of the public from having to present their documents at police stations, reducing inconvenience and saving police time.
- National Firearms Certificate Holders—these are records pertaining to the management of firearm licences. They hold details of members of the public who legally own firearms, renew firearms licences, have been refused a licence or had one revoked. The Dunblane tragedy was a key driver for developing the system.
The PNC is a dynamic database which is constantly updated. According to the NPIA annual report and accounts 2008-09, the "PNC holds over 9.2 million nominal (people) records, 52 million driver records and 55 million vehicle records [and] PNC usage in the 12 months ending April 2009 was approximately 185 million transactions. However, according to information provided by the NPIA to the Information Commissioner in the past two years, there are "45,000,000 records on the PNC". Alan Campbell's figures in his written answer are close to those of the NPIA annual accounts.
Further details on the PNC Names database is found in the appendix of the PNC Code of Practice. The Names index holds data on persons who fall into one of the four categories below:
- Offence processing;
- Wanted/missing;
- Disqualified driver; or
- Firearm certificate holder.
A record can be created for a number of reasons, including when a person:
- is the subject of a record originally created and held at the NIS;
- has been arrested, charged or reported for summons for the commission of, or involvement in, a recordable offence;
- has been arrested on suspicion of a recordable offence;
- is wanted for committing a specific offence;
- has failed to appear at a court in answer to a charge made against them;
- has been reported missing or has been found;
- has absconded from, or is subject to recall to, a prison, remand centre, young offender institution, etc;
- has deserted from the Armed Forces;
- is sought for other police purposes, e.g., as a witness to an incident;
- has been disqualified from driving a motor vehicle on a road by a court;
- is the subject of a particular type of court order;
- is the subject of judicial process for recordable offences.
A record can also be created in relation to a person who is missing in certain circumstances or has otherwise come to notice.
The PNC is an ADABAS (Adaptable Database System) management system. It does not use Structured Query Language (SQL) to search for information. Searches are carried out using ‘natural coded software’ using a QUEST (Querying Using Enhanced Search Techniques). A QUEST enables searches of the names database to identify suspects through the use of gathered information such as physical description and personal features. QUEST is not designed as a statistical tool; it is an operational tool used to identify offenders by inputting various descriptive parameters. The NPIA is able to run a QUEST to perform a tally of records within a set of given parameters. This function allows PNC operators to compare and contrast records within the descriptive parameters to define a search down to a reasonable number of responses. There is a display limit of 2000 responses for any tally. The PNC cannot be searched using free text fields.
PNC nominal records
The PNC is capable of recording more than 300 data items against an individual, including the offence, its code and the date it occurred. (The written answer states that the Names database has 253 fields available and that where fields are sub-divided, this has been counted as one data field - so these two figures may be consistent and are anyway of the same order of magnitude).
An Arrest/Summons reference number is generated by the PNC after the nominal details (name, birth date, sex and colour) are entered and the following mandatory fields are completed:
- Process stage
- Process stage date
- Fingerprints taken
- DNA details
- Name charged
- Arrest date of birth
- Arresting officer
- ACPO offence code
- Offence start date
- Offence location
- Offence location description.
The type of information that may be recorded on the PNC is governed by Regulation 3 of the National Police Records (Recordable Offences) Regulations 2000 (SI 2000/1139):
3.—(1) There may be recorded in national police records—convictions for; and cautions, reprimands and warnings given in respect of, any offence punishable with imprisonment and any offence specified in the Schedule to these Regulations [see the post Recordable offences]. In paragraph (1) above—the reference to an offence punishable with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any enactment on the punishment of young offenders; “caution” has the same meaning as in Part V of the Police Act 1997; and “reprimand” and “warning” mean a reprimand or, as the case may be, a warning given under section 65 of the Crime and Disorder Act 1998. Where the conviction of any person is recordable in accordance with this regulation, there may also be recorded in national police records his conviction for any other offence of which he is convicted in the same proceedings.
Changes to the codes for crimes on the PNC is the responsibility of the National Identification Service (NIS), a centrally funded organisation within the Metropolitan Police Operational Information Service.
Information held in the PNC is subject to ‘weeding’ rules defined in the MoPI Guidance - Step model - Retention Guidelines. The information may be "stepped down", i.e. only open to inspection by the police, after defined time periods. The information may be deleted when a subject reaches 100-year old or when a case is considered "exceptional" enough.
The legal framework is permissive, not mandatory. Certain conviction information may be recorded in national police records; there is no statutory obligation to record conviction information, and nor is there an obligation to retain conviction information (either for any particular period, or indefinitely) once it has been recorded. Nor is the legislative framework comprehensive. Certain legal offences are not liable to imprisonment and are not specified in the Schedule to the Regulations, and hence they are not recordable. For instance, it is understood that the offences created by the Data Protection Act itself are at present not recordable. Therefore even if all recordable offences were recorded and retained indefinitely, the PNC would not be a comprehensive record of all criminal convictions.
PNC data integrity
The information held in the PNC is saved three times a week. Three ‘generations’ of data are kept at any given time. As a new generation of data is saved, the oldest generation is removed.
The NPIA do not retain a ‘snap-shot’ of the data on the PNC for any particular time.
The NPIA have an audit trail of changes made to the PNC which allows the contents to be recovered to its last iteration.
Changes to PNC software and those at database level (not to be confused with updates to individual records made by police users) are recorded in hand over documents which are retained for approximately 3 years.
At present, step down is a manual process. Where a record is stepped down from the PNC then conviction information is removed from the PNC, although a record of an individual’s name and other identifying information remains on the PNC. The individual’s record on the PNC would also include an indication that information has been stepped down. Information is held in paper records, not on computer, under the control of ACPO. It is intended that at some point in the future the step down process should operate automatically, not manually. What is envisaged is that stepped down information will be held on the PNC, but that special measures will be taken to ensure that it is only accessible to police users of the PNC.
NPIA's role in relation the PNC
The NPIA maintains and delivers the PNC and acts as a central resource for police forces. The NPIA maintains the ‘hardware’ of the PNC.
The NPIA does not determine policy in respect of the data recorded on the PNC. It is outside of the NPIA’s remit to dictate to police forces how data should be entered onto PNC; this is the responsibility of the Association of Chief Police Officers (ACPO).
The NPIA produces national plans. This does not involve interrogating data held on the PNC.
The NPIA use information from the PNC for the purpose of operational research, for and on behalf of police forces.
Within the NPIA are a number of organisations such as the Missing Persons Bureau (MPB) and the Serious Crime Analysis Squad (SCAS). These use the PNC in limited ways for their specific functions; for instance, the SCAS uses PNC information to obtain intelligence on known offenders and on suspects for outstanding serious crimes. They do not input data into the PNC. The PNC recorded 7,625 transactions by the NPIA SCAS and MPB during 2008.
Note that even though the NPIA argued "that it holds and is responsible for the PNC in its capacity as Data Processor and it is the individual police forces who are the Data Controllers", the Commissioner found in its recent decision notice that "Where information is held by a public authority, to any extent for its own purposes, then it holds that information otherwise than on behalf of information for the purposes of the Act." This means that, for instance, Freedom of Information requests about the PNC can be sent to the NPIA and not just to the police forces.
These notes about the PNC are a mash up of several sources, and in some instances they highlight inconsistencies in the information available. There's no obvious explanation for the discrepancy in the number of records, especially as the conflicting figures originally came from the same organisation, the NPIA. On a more general level, there seems to be two different understandings for the "PNC": either a database of arrested individuals and crimes, or a more encompassing system made up of several databases. While the latter may be more accurate, the former seems to be closer to the general understanding as well as to the scope defined in PACE 1984.
First published on 2009-08-29; last updated on 2014-10-08 (fixed dead links).
Bootnote: The Library of the House of Commons published, on 2014-04-15, the Standard Note The retention and disclosure of criminal records.
Friday marked the one year anniversary of the death of Sean Rigg. He died while in police custody after he was brought to Brixton police station where he was placed in a metal cage outside at the back of the station. His family and the United campaign against police violence organised a rally followed by vigil outside Brixton police station to demand justice for Sean Rigg and for other deaths in police custody. Black men figure prominently among the death in custody, and Brixton police has been involved in too many of these.
We walked from the street where Sean Rigg was living up to the Brixton police station. Families and friends of several men killed in police custody had joined the vigil and said a few words. Jo Lang, a friend of Blair Peach who died 30 years after being hit on the head by a police officer at a demonstration, stressed the necessary unity of this campaign, "there are numerous more people who are killed in police custody but we never hear about them because there is no one speaking out for them. That is why it is so important we are here today." Thirty year later, the Cass report into the police actions on the day Blair Peach died has still not been released, though when it is eventually published Jo Lang expects it to be heavily redacted. Marcia Rigg-Samuel and Samantha Rigg-David explained what little they have managed to find out about the death of their brother, and the many failures of the IPCC. It may be years before an inquest in Sean Rigg's death happens. The evening concluded with the release of black balloons, some from a coffin, and lighting of candlelights.
What is known of what happened to the CCTV footage gives all the impression of a cover up. Here's the situation about the missing CCTV recordings as described in a Guardian article by Paul Lewis (the Guardian also published a video about the family's campaign to find out what actually happened):
There were no cameras in the police van that took Rigg to the police station and the Independent Police Complaints Commission (IPCC), which is expected to complete its investigation next month, initially told Rigg's family that only CCTV footage seized from inside the station showed the cage where he died – and the cameras involved had limited views.
Convinced there were more outdoor cameras nearby, Rigg's family demanded an audit of security cameras at the station. IPCC investigators then conceded there were more cameras overlooking the cage. But two weeks later, they said they had tried to obtain the tapes and found the recorders had not been working for three months.
Rigg's family suspect a cover-up. The IPCC's claim about CCTV contradicts repeated assurances given to the family by a senior police officer two days after Rigg died. Suzanne Wallace, a chief inspector who was in charge of the station, was caught on tape saying CCTV was working and recordings had been seized.
[...]
For Rigg's family, the missing CCTV footage raises serious questions about the actions of police on 21 August last year. They want to know why he was left for an hour in an outdoor cage, which functions as a station holding area, rather than taken into the custody suite.
One theory held by the family is that officers knew the cage was in a CCTV "blind spot" and left Rigg there so there would be less evidence of his deteriorating condition upon arrival at the station.
Another is that the tapes were destroyed during the 27 days it took the IPCC to attempt to seize footage from outdoor cameras.
Rigg's sister Marcia, 45, said: "It is my opinion that this is a deliberate cover-up by the police, and the IPCC [by failing to rigorously investigate] are allowing that cover-up. It's all part of collusion and to me the IPCC are certainly not independent."
Records show some cameras at Brixton police station were reported as faulty. However an annual maintenance check of all CCTV completed on 12 August, nine days before Rigg died, found no problems with the cameras that the family believe should have recorded Rigg's last moments alive.
[...]
The van entered the police yard at 7.53pm and Rigg was left inside for about 10 minutes before officers escorted him to the cage. CCTV inside the station's custody area recorded obscured footage of Rigg in the cage. His family, who have watched the images, say they show him collapse repeatedly and lose consciousness.
[...]
In the family's view, the IPCC has yet to give an adequate explanation about the missing CCTV. "That was the way we were going to find out what was going to happen that night," said Wayne Rigg. "We were told that the cameras were working. We went and saw the positions of these cameras. Then to be told the cameras weren't working – we were devastated."
This follows a similar patter to what happened more recently when Ian Tomlinson died after being hit by police officers during the G20 demonstration, the story about the CCTV evolved from denial to possible existence. Unfortunately for the Rigg family there was no independent amateur footage available.
Update: Fourmanfilms has posted a video filmed at the rally and vigil.
First published on 2009-08-23; last updated on 2009-08-24.
Excerpts from a letter by Ian Readhead, director of information at ACPO, sent last month to all chief constables have been widely quoted in the press:
Until that time [when new guidelines are set by the Home Office], the current retention policy on fingerprints and DNA remains unchanged.
Individuals who consider they fall within the ruling in the S and Marper case should await the full response to the ruling by the government prior to seeking advice and/or action from the police service in order to address their personal issue on the matter.
Acpo strongly advise that decisions to remove records should not be based on [the government's] proposed changes. It is therefore vitally important that any applications for removals of records should be considered against current legislation.
There's nothing new in this advice. Here's an excerpt from the letter sent by ACPO to chief constables on 2008-12-09, just a few days after the European Court of Human Rights ruling in S and Marper v. UK:
The Government is expected to provide a considered response to this ruling, which is currently under consideration by their Lawyers.
Whilst this judgement has gone against the Government, it does not have any impact on the current retention fingerprint and DNA policy until the law is changed by Parliament. It therefore follows that the current legislation and procedures remain unaffected by this ruling.
Individuals who consider that they fall within the ruling in the S & Marper case should await the full response to the ruling by Government prior to seeking advice and/or action from the Police Service in order to address their personal issues on the matter.
Once the legal interpretation has been established, further advice will be provided via the ACPO Criminal Records Office.
Last March, I wrote about how this advice is being followed by chief constables in Three months on, you still can't get off the DNA database. Read that article for typical letters from chief constables to individuals requesting to get off the NDNAD. Anecdotal evidence shows that chief constables have attempted to rebuff those writing to them to have their DNA samples destroyed, DNA profile deleted and other associated records (fingerprints, palm prints, PNC) deleted by responding along the lines of "Individuals who consider that they fall within the ruling in the S & Marper case are being advised to await the full response to the ruling by the Government prior to seeking advice and/or action from the Police Service in order to address their personal issues on the matter" (excerpt from such a response).
This is of course not acceptable as until new laws and regulations are put in place, "applications for removals of records should be considered against current legislation" and regulations on their individual merit. The infamous Retention guidelines for nominal records of the police national computer describes the procedure to decide whether a case is deemed to be exceptional enough for the request to be granted. These guidelines are issued by the Association of Chief of Police Officers (ACPO), a private company.
If your DNA profile is on the NDNAD do apply to get off it. Few have done it. Combined figures for 2008 obtained from 20 police forces that did record this information show that out of 535 requests received, 211 succeeded. You will need to persevere and don't take no as an answer. As shown by Damian Green who just announced his DNA profile has been removed, it is possible to successfully argue one's case is exceptional. (Ironically, he was commenting on the "draconian" retention guidelines only a few days before his arrest and DNA sampling last November.) However, being an MP may have helped him. Dr Helen Wallace from GeneWatch UK said: "We congratulate Damian Green on his success but it highlights how arbitrary and unfair the system is. People who are famous or get press coverage for their case seem to get removed while the vast majority of people do not." For the vast majority, there's help in the form of a website launched earlier this year by a coalition of NGOs, including GeneWatch UK: ReclaimYourDNA.
DNA evidence is perceived by many to be virtually infallible, a truth machine in criminal investigations. This is not the case. Many of the fallacies about DNA's forensic powers are detailed in The Potential for Error in Forensic DNA Testing (and How That Complicates the Use of DNA Databases for Criminal Identification) (pdf), a very clear and easy to read paper published last year by Professor William C. Thompson, Department of Criminology, Law & Society, University of California, Irvine:
The infallibility of DNA tests has, for most purposes, become an accepted fact—one of the shared assumptions underlying the policy debate.
In this article, I will argue that this shared assumption is wrong. Although generally quite reliable (particularly in comparison with other forms of evidence often used in criminal trials), DNA tests are not now and have never been infallible. Errors in DNA testing occur regularly. DNA evidence has caused false incriminations and false convictions, and will continue to do so. Although DNA tests incriminate the correct person in the great majority of cases, the risk of false incrimination is high enough to deserve serious consideration in debates about expansion of DNA databases. The risk of false incrimination is borne primarily by individuals whose profiles are included in government databases (and perhaps by their relatives). Because there are racial, ethnic and class disparities in the composition of databases, the risk of false incrimination will fall disproportionately on members of the included groups.
This article will discuss major ways in which false incriminations can occur in forensic DNA testing, including coincidental DNA profile matches between different people, inadvertent or accidental transfer of cellular material or DNA from one item to another, errors in identification or labeling of samples, misinterpretation of test results, and intentional planting of biological evidence. It will also discuss ways in which the secrecy that currently surrounds the content and operation of government databases makes these issues difficult to study and assess. It will conclude by calling for greater openness and transparency of governmental operations in this domain and a public program of research that will allow the risks discussed here to be better understood.
[...]
Do innocent people really have nothing to fear from inclusion in government DNA databases? It should now be clear to readers that this claim is overstated. If your profile is in a DNA database you face higher risk than other citizens of being falsely linked to a crime. You are at higher risk of false incriminations by coincidental DNA matches, by laboratory error, and by intentional planting of DNA. There can be no doubt that database inclusion increases these risks, the only real question is how much. In order to assess these risks, and weigh them against the benefits of database expansion, we need more information.
It is well worth taking the time to read this article in full. The risk of false incrimination from DNA evidence is only one of the reasons, especially for innocent or those arrested for some trivial matter, not to want to be on a DNA database such as the NDNAD. Other objections include the stigma of being on a criminal intelligence database (an honorary criminal), risks to privacy, database function creep and other misuse by the database state, and concerns about the efficacy of retaining DNA of individuals (only retention of DNA from crime scenes has been shown to drive detections).
The risk of intentional planting of DNA by criminals has been in the news as The New York Times reported earlier this week that scientists in Israel "showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person." Simpler scenarios include planting biological evidence taken from someone else. Yet another technique developed at the University of Western Australia is to create a spray made from someone else DNA which, under certain condition, can mask the profile of the actual DNA found in a bloodstain or other samples from crime scenes. William C. Thompson reiterates the risks that we may face if or when criminals start using these techniques:
If someone plants your DNA at a crime scene, it might throw police off the trail of the true perpetrator, but it is unlikely to incriminate you unless your profile is in the database. The authorities are likely to search the profile of the crime scene sample against a database, but if your profile is not in the database, they will find no match and will be left with just another unknown sample. Suppose, however, that you are unlucky enough to have your profile in the database. In that case, the police will likely find it, at which point they will have something far better than an unknown sample—they will have a suspect. Given the racial and ethnic disparities that exist in databases, that suspect is disproportionately likely to be a minority group member.
[...]
Kary Mullis, who invented PCR [technique used to create highly concentrated solutions of DNA fragments, such as in the spray scenario], anticipated this potential misuse of the technique. In a conversation I had with him in 1995, Mullis jokingly discussed creating a company called “DN-Anonymous” that would sell highly amplified solutions of DNA from celebrities, or from large groups of people, that criminals could use to cover their tracks. Although Mullis was not serious about doing it himself, he predicted that someone would do so within the next ten years. As far as I know, Mullis’ prediction has yet to come true, but it may only be a matter of time before materials designed to stymie DNA tests (by planting other people’s DNA at crime scenes) become available for sale on the internet along with kits designed to thwart drug tests.
Another incorrect assumption is to believe that everyone has only one DNA profile. Amazingly, for a small number of persons this is not true: analysis of different samples from the same individual can result in distinct DNA profiles. In some bone marrow transplant treatments, patients' blood contain a mixed DNA profile. "Chidambaram [of the Alaska State Scientific Crime Detection Laboratory in Anchorage] argues that potential marrow donors should be informed of the small risk of their DNA profile turning up in a crime database if the recipient later commits an offence." Another instance where the unique DNA profile assumption doesn't hold is for those affected by the rare chimerism condition, when two fertilised eggs fuse to become one foetus. Chimeras end up with two separate strands of DNA. Depending on what DNA sample is taken, one of two distinct DNA profiles may be obtained.
DNA evidence has proved useful in criminal investigation but it is no silver bullet. Mistakes are made, DNA evidence can be planted at crime scenes, it can even be fabricated and some persons have more than one DNA profile. Limitations in the evidential powers of DNA need to be understood by judges and juries... and the Home Office.
For a better understanding of the Home Office plans, check out some of the several public responses to Home Office consultation collated by GeneWatch UK. Most of the responses and advice currently available are deeply critical of the science and/or the legality (pdf) of the Home Office's proposals for 'Keeping the right people on the DNA database'.
DNA samples can be taken from anyone arrested for a recordable offence. The list of such offences has evolved with several statutory instruments (SIs) amending previous legislation and can be difficult to figure out. This post aims to remedy this!
Recordable offences are those which are recorded on the Police National Computer to form part of a person's criminal record. They include convictions for; and cautions, reprimands and warnings given in respect of, any offence punishable with imprisonment and other offences from a scheduled list defined in the National Police Records (Recordable Offences) Regulations 2000 (SI No. 1139) as amended in 2003 by SI No. 2823, 2005 by SI No. 3106 and 2007 by SI No. 2121 – see below. (Conviction for any other offence in the same proceedings may also be recorded in national police records.)
Offences punishable with imprisonment
Since 1997, there have been 1,036 new imprisonable offences, with a big acceleration from 2003 onwards (257 from May 1997 to January 2004, 174 in 2005, 137 in 2006 and 133 in 2007). More detail on offences can be found at:
Specified offences (schedule)
Below is the list of other specified offences defined in the amended National Police Records (Recordable Offences) Regulations. (The number in front of each offence is the section number in the amended regulations.)
1. Giving intoxicating liquor to children under five (section 5 of the Children and Young Persons Act 1933);
2. Exposing children under twelve to risk of burning (section 11 of the Children and Young Persons Act 1933);
3. Failing to provide for safety of children at entertainments (section 12 of the Children and Young Persons Act 1933);
4. Drunkenness in a public place (section 91 of the Criminal Justice Act 1967);
5. Touting for hire car services (section 167 of the Criminal Justice and Public Order Act 1994);
6. Purchasing or hiring a crossbow or part of a crossbow by person under the age of seventeen (section 2 of the Crossbows Act 1987);
7. Possessing a crossbow or parts of a crossbow by unsupervised person under the age of seventeen (section 3 of the Crossbows Act 1987);
8. Failing to deliver up authority to possess prohibited weapon or ammunition (section 5(6) of the Firearms Act 1968);
9. Possessing an assembled shotgun by unsupervised person under the age of fifteen (section 22(3) of the Firearms Act 1968);
10. Possessing an air weapon or ammunition for an air weapon by unsupervised person under the age of fourteen (section 22(4) of the Firearms Act 1968);
11. Possessing in a public place an air weapon by unsupervised person under the age of seventeen (section 22(5) of the Firearms Act 1968);
12. Throwing missiles (section 2 of the Football (Offences) Act 1991);
13. Indecent or racialist chanting (section 3 of the Football (Offences) Act 1991);
14. Unlawfully going on to the playing area (section 4 of the Football (Offences) Act 1991);
15. Trespassing in daytime on land in search of game, etc. (section 30 of the Game Act 1831);
16. Refusal of person trespassing in daytime on land in search of game to give his name and address (section 31 of the Game Act 1831);
17. Five or more persons being found armed in daytime in search of game and using violence or refusal of such persons to give name and address (section 32 of the Game Act 1831);
18. Being drunk in highway or public place (section 12 of the Licensing Act 1872);
19. Obstructing an authorised person inspecting premises before the grant of a licence etc. (section 59(5) of the Licensing Act 2003);
20. Failing to notify change of name or alteration of rules of club (section 82(6) of the Licensing Act 2003);
21. Obstructing an authorised person inspecting premises before the grant of a certificate etc. (section 96(5) of the Licensing Act 2003);
22. Obstructing an authorised person exercising a right of entry where a temporary event notice has been given (section 108(3) of the Licensing Act 2003);
23. Failing to notify licensing authority of convictions during application period (section 123(2) of the Licensing Act 2003);
24. Failing to notify court of personal licence (section 128(6) of the Licensing Act 2003);
24A. Keeping alcohol on premises for unauthorised sale etc. (section 138(1) of the Licensing Act 2003);
24B. Allowing disorderly conduct on licensed premises etc. (section 140(1) of the Licensing Act 2003);
24C. Selling alcohol to a person who is drunk (section 141(1) of the Licensing Act 2003);
24D. Obtaining alcohol for a person who is drunk (section 142(1) of the Licensing Act 2003);
24E. Failing to leave licensed premises etc. (section 143(1) of the Licensing Act 2003);
24F. Keeping smuggled goods (section 144(1) of the Licensing Act 2003);
24G. Allowing unaccompanied children on certain premises (section 145(1) of the Licensing Act 2003);
24H. Selling alcohol to children (section 146(1) and (3) of the Licensing Act 2003);
24I. Allowing sale of alcohol to children (section 147(1) of the Licensing Act 2003);
24J. Purchasing alcohol by or on behalf of children (section 149(1), (3) and (4) of the Licensing Act 2003);
24K. Consumption of alcohol on relevant premises by children (section 150(1) and (2) of the Licensing Act 2003);
24L. Delivering alcohol to children (section 151(1), (2) and (4) of the Licensing Act 2003);
24M. Send a child to obtain alcohol (section 152 (1) of the Licensing Act 2003);
24N. Allowing unsupervised sales by children (section 153(1) of the Licensing Act 2003);
24O. Making false statements (section 158(1) of the Licensing Act 2003);
24P. Allowing premises to remain open following a closure order (section 160(4) of the Licensing Act 2003);
24Q. Obstructing authorised person exercising rights of entry to investigate licensable activities (section 179(4) of the Licensing Act 2003);
25. Making false statement in connection with an application for a sex establishment licence (paragraph 21 of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982);
27. Falsely claiming a professional qualification etc. (article 44 of the Nursing and Midwifery Order 2001);
28. Taking or destroying game or rabbits by night, or entering any land for that purpose (section 1 of the Night Poaching Act 1828);
29. Wearing police uniform with intent to deceive (section 90(2) of the Police Act 1996);
30. Unlawful possession of article of police uniform (section 90(3) of the Police Act 1996);
31. Causing harassment, alarm or distress (section 5 of the Public Order Act 1986);
32. Failing to give advance notice of public procession (section 11 of the Public Order Act 1986);
33. Failing to comply with conditions imposed on a public procession (section 12(5) of the Public Order Act 1986);
34. Taking part in a prohibited public procession (section 13(8) of the Public Order Act 1986);
35. Failing to comply with conditions imposed on a public assembly (section 14(5) of the Public Order Act 1986);
36. Taking part in a prohibited assembly (section 14B(2) of the Public Order Act 1986);
37. Failing to comply with directions (section 14C(3) of the Public Order Act 1986);
38. Failing to provide specimen of breath (section 6 of the Road Traffic Act 1988);
39. Penalisation of tampering with vehicles (section 25 of the Road Traffic Act 1988);
40. Kerb crawling (section 1 of the Sexual Offences Act 1985);
41. Persistently soliciting women for the purpose of prostitution (section 2 of the Sexual Offences Act 1985);
42. Allowing alcohol to be carried on public vehicles on journey to or from designated sporting event (section 1(2) of the Sporting Events (Control of Alcohol Etc.) Act 1985);
43. Being drunk on public vehicles on journey to or from designated sporting event (section 1(4) of the Sporting Events (Control of Alcohol Etc.) Act 1985);
44. Allowing alcohol to be carried in vehicles on journey to or from designated sporting event (section 1A(2) of the Sporting Events (Control of Alcohol Etc.) Act 1985);
45. Trying to enter designated sports ground while drunk (section 2(2) of the Sporting Events (Control of Alcohol Etc.) Act 1985);
46. Unauthorised sale or disposal of tickets for a designated football match (section 166(1) of the Criminal Justice and Public Order Act 1994);
47. An individual subject to a banning order failing to comply with the requirements determined by the enforcing authority and made of him by a police officer on the individual's initial reporting at the police station (section 19(6) of the Football Spectators Act 1989);
48. A person subject to a banning order knowingly or recklessly providing false or misleading information in support of his application for an exemption from a reporting requirement of his banning order (section 20(10) of the Football Spectators Act 1989);
50. Loitering or soliciting for purposes of prostitution (section 1 of the Street Offences Act 1959);
52. Taking or riding a pedal cycle without owner's consent (section 12(5) of the Theft Act 1968);
53. Begging (section 3 of the Vagrancy Act 1824); and
54. Persistent begging (section 4 of the Vagrancy Act 1824).
For more information on a specific offence, check out the law mentioned in brackets in the UK Statute Law Database (very good search facility and the laws integrate some revisions from later amendments - unfortunately not fully up-to-date for many laws) or the Office of Public Sector Information (the original legislation as it was enacted).
Below is my response to the Home Office consultation ‘Keeping the right people on the DNA database’. You still have the whole of Friday to engage in the DNA database debate and send yours in, if you haven't done so yet.
1) Introduction
There is a consensus that retention of DNA profiles of crime scenes has a direct positive effect on the detection rate. The Home Office explained in 2005 that “the number of matches obtained from the Database (and the likelihood of identifying the person who committed the crime) is ‘driven’ primarily by the number of crime scene profiles loaded onto the Database”. There’s no such clear case about the impact of retaining DNA profiles of individuals; there’s even data showing the contrary. When the NDNAD doubled in size, the percentage of recorded crimes involving a DNA detection remained roughly the same (at 0.36% according to GeneWatch UK). Furthermore, according to Brian Costello's research, increasing the size of the NDNAD is likely to increase the risk of miscarriage of justice: “If a miscarriage based on an adventitious match has not occurred yet, it appears likely it will occur in the future as the NDNAD grows ever larger.”
Options that include retention of either DNA samples or profiles must be based on strong evidence. The default position has to be that samples and profiles of innocents must be destroyed and deleted unless solid evidence can be shown of the value of retention. No such evidence has been presented in the consultation.
It is most unfortunate for the consultation to be of such poor quality. The included research has many mistakes and surprisingly does not appear to always support the Home Office options. (I attempted to get a corrected version of this document from its author and correspondence about it from the Home Office, without success.) The consultation documents are flawed in other ways as well: for instance, the chief economist was given an earlier draft to review with different options, and the costing for removing DNA wrongly assumes each removal has to be individually reviewed. (This has been communicated to the Home Office Consultation Co-ordinator last month.)
The rules governing the NDNAD, including retention period of DNA profiles, should be properly debated in Parliament. That the Home Office has already published a draft Statutory Instrument to implement its proposal, only a week after starting the consultation period, does not give confidence in its capacity to listen to constructive criticism. The rules governing the NDNAD should be included in primary legislation instead of having an SI giving full discretion to the Secretary of State. As Mr Justice Beatson commented that “It appears that a decision was taken not to address the reasons for the [Strasbourg] Court’s conclusion in the Consultation Paper”, the Home Office may want to reconsider this decision.
2) DNA samples
The Home Office is to be commended for its plan to destroy all DNA samples.
Destroying new DNA samples as soon as an effective profile is loaded on the NDNAD is by far the best option. It ensures the associated DNA profiles are available for policing purposes while not holding on to the most intimate human biological data.
The Home Office mentions a retention “for up to six months maximum for possible re-examination purposes only”. Six months is an arbitrary period that is not justified. In the absence of evidence for this choice, I suggest reducing this period to two months at most.
The consultation estimates that 12 months will be needed to destroy the legacy samples as they amount to about 25 cubic meters. This seems overly long to effectively take the DNA samples of individuals out of freezers in bulk and securely destroy them.
3) DNA profiles of innocent individuals
To retain the DNA profile of innocents, after the police have decided to take No Further Action (NFA) or after they have been acquitted, is an attack on the presumption of innocence. This can be justified only with solid evidence in support of such retention. The research included in the consultation does not provide strong evidence. This has already been discussed at length by many (for e.g., see articles by Anna Fairclough, Dr Ben Goldacre, Professors Keith Soothill and Brian Francis, and several of my writings as well). There’s not much point rehearsing these arguments here. Instead I’ll offer an alternative approach.
The NDNAD is effectively a criminal database as opposed to an identity database. The NDNAD Ethics Group concurred in its first annual report with two of its 11 recommendations making it clear the National DNA Database (NDNAD) is a “crime-related intelligence database”, and the Human Genetics Commission regards it “as a criminal database”. There are potentially conflicting goals for the retention of DNA profiles of innocents: improving crime prevention while avoiding criminalising innocents. Of course there’s stigma for an innocent to be included in a criminal database. There are also risks.
William C. Thompson, in The Potential for Error in Forensic DNA Testing (and How That Complicates the Use of DNA Databases for Criminal Identification), clearly explains some of these risks: “Do innocent people really have nothing to fear from inclusion in government DNA databases? It should now be clear to readers that this claim is overstated. If your profile is in a DNA database you face higher risk than other citizens of being falsely linked to a crime. You are at higher risk of false incriminations by coincidental DNA matches, by laboratory error, and by intentional planting of DNA. There can be no doubt that database inclusion increases these risks, the only real question is how much. In order to assess these risks, and weigh them against the benefits of database expansion, we need more information.”
The ECtHR also requested more information: “Weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants’ private data compared to that of other unconvicted people.”
Unfortunately the consultation does not provide the information we need to consider whether there are indeed situations where the risks of criminalising innocents are outweighed by the risk of a criminal offending who could have been found if his/her DNA profile had been retained before his/her first offence. (There is obviously no need for retention to match a criminal arrested after an offence where DNA was left at the crime scene and loaded on the NDNAD.)
Professors Soothill and Francis in Keeping the DNA link point out that “The notion of ‘arrest’ is the main criterion used for action in the consultation document. [...] In fact, arrests are useful indicators of police action but not of guilt. Re-arrests are dangerous indicators and making arrests the pivotal criterion encourages the notion that we are moving towards becoming a police state. The most serious abuse to avoid is an arrest by the police at the end of a retention period in order to get a further retention period on the DNA database.” The ethnic bias of the NDNAD is likely a consequence.
“After all, one of the authors showed nearly 30 years ago (Soothill K, Way C and Gibbens TCN (1980) ‘Rape Acquittals’, Modern Law Review, 43(2), 159-172) that the subsequent criminal profiles of those acquitted of rape are almost identical to the subsequent criminal profile of those convicted of rape—in fact, a greater proportion of the former had subsequent violent convictions. However, there is no recourse to this kind of evidence. Their demand for a 12-year retention period is backed up by what we call the smokescreen of versatility. [...] More recently, McGloin et al (McGloin, JM, Sullivan, CJ and Piquero, AR (2009) ‘Aggregating to versatility: Transitions among offender types in the short term’, British Journal of Criminology, 49, 243-264) provide evidence that offenders may favour certain offence types during the short term, largely because of opportunity structures, but that because of changing situations and contexts over the life-course, their offending profiles aggregate to versatility over their criminal career as a whole.”
As there’s no evidence to justify the proposed six and twelve years retention periods, my recommendation is that DNA profiles of innocents must be deleted when the individuals are NFA’d or acquitted.
However, as there appears to be some other evidence suggesting that a proportion of those arrested for certain specific serious offences - rape and kidnap are the two mentioned in Keeping the DNA link - go on to commit a related offence in the short term, it may be proportionate to retain their DNA profile for the “short term” period where such criminal specialisation can be expected. The length of criminal specialisation, though, does not give the full picture, Liu, Francis and Soothill found in Kidnapping offenders: Their risk of escalation to repeat offending and other serious crime (published in the Journal of Forensic Psychiatry & Psychology), that the shape of the re-conviction curves is also important as it is offence-specific. Clearly more work needs to be done to find and analyse the existing peer-reviewed research and commission further research.
It may be difficult to complete substantive further research in the time scale for the legal changes this consultation addresses, so there’s an open question in how to deal, at this stage, with DNA profiles of those arrested and charged for a violent offence and subsequently acquitted. I consider three options: a) delete their DNA profiles at acquittal, b) set a maximum retention period in the regulations, and c) retain their DNA profiles indefinitely. Indefinite retention of DNA of innocents is clearly unacceptable so that leaves two options.
My recommendation is to set a maximum period of up to six years for the exceptional retention of the DNA profile of individuals charged for a violent offence and acquitted, and plan a review of this aspect of the regulations for when further validated research work has been conducted allowing to create evidence-based retention periods for specific violent offences.
4) DNA profiles of under 18s
The experience of being arrested and having one’s DNA taken can be especially traumatic for young kids. For individuals arrested under the age of 18, a DNA sample should be taken at arrest only for violent offences.
If an individual arrested before the age of 18 was not DNA sampled but is later convicted for that offence, then a DNA sample should be taken at conviction for DNA profiling.
5) DNA profiles of convicted individuals
Rehabilitation must also apply to DNA retention. The DNA profile of convicted individuals should be deleted at the end of their rehabilitation period (as defined in the Rehabilitation of Offenders Act 1974). The retention period could be exceptionally extended, as part of the sentencing, if deemed appropriate to the specific circumstances.
6) Legacy profiles
Legacy DNA profiles of innocents must be bulk deleted when the regulations come into force as the default position should be not to retain DNA profiles.
Legacy DNA profiles of convicted individuals should be deleted at the end of their rehabilitation period (as defined in the Rehabilitation of Offenders Act 1974).
Legacy unreconciled DNA profiles should preferably be manually reviewed for deletion when regulations come into force. If the time and cost is too great, then they could be automatically deleted after a set retention period suggested to be six years from arrest. I.e, all unreconciled DNA profiles more than six years old would be bulk deleted when regulations come into force and the remaining unreconciled profiles automatically deleted when they reach this retention period.
7) Governance and accountability
Increasing the independent membership of the NDNAD Strategy Board is welcomed, but it is of concern that the Home Office did not consult, or even inform, either the NDNAD Strategy Board or the NDNAD Ethics Group when preparing its plans for the future of the DNA database as embodied in the consultation. (This was confirmed in personal communications by members from both groups.) This does not give confidence that any new structure or playing musical chairs in one of the existing advisory structure would be effective. Changes in governance and accountability need to be stronger than currently proposed.
Renaming the existing ACPO exceptional case procedure to “application process for record deletion” and for the grounds to be codified in regulations is not enough. The ECtHR called for a “provision for independent review of the justification for the retention according to defined criteria.” The chief constable, owner the DNA profile and currently final arbiter, is not independent and there should be an appeal process to a genuinely independent body.
It appears that the involvement of ACRO with the NDNAD is growing. (Details are not known as they are not public and the Home Office exempted the FoI request I sent about this.) For instance, the ACRO appears to have been tasked to create processes that would improve achieve some level of national consistency when considering the requests for removal. Further involvement of ACRO, a private company, would be considered to reduce accountability and transparency and should be limited.
The creation of a strategic and independent advisory panel tasked with monitoring the implementation and operation of the new policy would be useful if it is given enough authority and power to do its job. If it is to be bypassed, as the NDNAD Strategy Board and the NDNAD Ethics Group recently were, then its creation would be useless. This advisory panel must report to Parliament, instead of to Ministers as is proposed.
Regular publication of the key statistics on NDNAD numbers, speculative searches, deletions and applications for deletions is welcomed. A review of past NDNAD-related Parliamentary questions and Freedom of Information requests would give a good idea of the kind of data that is found useful. The Home Office should also ensure that proper peer-reviewed research on the efficacy of the NDNAD is commissioned.
8) Taking Samples – Additional Categories
Additional provisions to take samples may be justified in specific circumstances, from individuals who are considered to pose a potential danger to the public, but need to be narrowly constrained to avoid any risk of harassment by the police. In particular, any additional sampling would have to be for a serious offence and only during the period for which it would be legal to retain the DNA profile.
9) Fingerprints
Having retention policy for fingerprints (and palm prints) in line with that of DNA profiles is attractive as it will allow for deletion of both at the same time minimising the risk of error.
The Home Office is proposing to remove the ability to witness the destruction of one’s fingerprints. Any aspect of the process that increases the transparency of the police and offers a chance for positive interactions between the police and the public, such as witnessing this operation, should be reinforced. Removing this entitlement must be justified.
10) Volunteer Samples and Profiles
The proposed option of not storing DNA profiles of volunteers and deleting all the legacy DNA profiles of volunteers is fully supported.
First published on 2009-08-06; last updated on 2009-08-07.
With close to 8% of the UK population on the National DNA Database (NDNAD), you must know someone whose DNA profile is on it. Finding out how to get off it and attempting to engage in a proper debate about its future I found the Home Office wasn’t listening but NGOs were really helpful.
There are plenty of reasons to want to be off the NDNAD, especially if you’re innocent or were arrested for some trivial matter:
Seeking deletion of your DNA profile from the database (and destruction of the DNA sample) is an arcane process. It took me much searching of Home Office and Police documents to understand how this works. Not even MPs debating an NDNAD related amendment at the end of 2008 were fully aware of the process!
Few have done it. Combined figures for 2008 obtained from 20 police forces that did record this information show that out of 535 requests received, 211 succeeded. The Chief Constable of the force that arrested you owns your DNA and, once asked, will relent to delete it only in exceptional cases. The Chief Constable may have a different opinion from you of what is exceptional. Being among the 350,000 to a million innocents on the database (the exact number is not known as not all profiles are reconciled with the Police National Computer) helps. Earlier this year, a coalition of NGOs addressed this issue by launching the ReclaimYourDNA website.
Following the European Court of Human Rights ruling against the UK, the Home Office eventually published a consultation: Keeping the right people on the DNA database (closing tomorrow). It’s a rushed job. The included research was described as “possibly the most unclear and badly presented piece of research I have ever seen in a professional environment” by Ben Goldacre. I contacted its author but got no reply. I asked the Home Office for its correspondence about it, but that was exempted. Eventually I sought the statistics used by the Home Office in creating the consultation and was told that they may respond after the consultation closes. The consultation documents are flawed in other ways. For instance, the chief economist was given an earlier draft to review, with different options, and the costing for removing DNA wrongly assumes each removal has to be individually reviewed. I wrote to the Home Office consultation co-ordinator to complain but he does not find any problem with the consultation documents. Attempts to engage with the Home Office to obtain valid data and a corrected up-to-date version of its plans were all frustrated.
Time again, NGOs came to the rescue to help make sense of these confusing documents. I attended a briefing for the children’s sector organised by ARCH and GeneWatch UK, and a seminar for Britain’s black communities held by Black Mental Health and GeneWatch UK. Alan Brown, Head of Police Powers and Procedures, Home Office, was a guest speaker at the seminar. Consultation responses are to be sent to him, so I was looking forward to get some clarifications. About the plans to retain DNA of innocents for six or 12 years, he offered: “More than happy to take constructive criticism. Indicate why you think it’s wrong. But we do feel we need retention whether it’s one or 15 years.” However he promptly left the building after only a few questions missing an opportunity to participate in the panel discussion and engage directly with a community over-represented in the NDNAD.
Where the Home Office brings confusion and pretends to be open to constructive criticism, small NGOs are doing an impressive work of public education and engagement. You have one day left to respond to the Home Office consultation. If you need help answering it, GeneWatch UK has published a briefing document (doc).
The government has a habit of forgetting data on trains and unauthorised access, so what's the situation concerning the National DNA Database (NDNAD). As too often with the Home Office, there's some confusion.
On Monday 20th July, Home Secretary Alan Johnson gave a written answer to Parliament on this very topic.
Direct access to information on the National DNA Database (NDNAD) is restricted to a limited number of designated personnel under the control of the National Policing Improvement Agency (NPIA), either directly, or under a contract awarded to the Forensic Science Service (FSS) for operation and maintenance of the NDNAD and development of its IT systems. Throughout the lifetime of the contract, the FSS are required to demonstrate compliance with specified security requirements. Police and law enforcement personnel do not have access to the information on the NDNAD, but receive reports from the NDNAD Delivery Unit of matches between DNA taken from crime scenes and that taken from individuals.
The Keeping the right people on the DNA database consultation document explains:
Accessing records on the NDNAD is strictly limited. When a police officer asks for a search to be carried out against a profile of a crime scene sample, he or she does not have access to the database. Instead they are provided with details only of those profiles which provide a match. [...] Access to NDNAD records is restricted to around 30 staff either working in the NDNAD or the Forensic Science Service. We are confident that the security measures in place to monitor abuses or potential abuses of the database are working well. But we are not complacent. The effectiveness of the controls is subject to ongoing review
Three days earlier, Alan Brown, Head of Police Powers and Procedures, Home Office - the person to whom responses to the DNA consultation should be sent to - was a guest speaker at the seminar for blacks communities on the DNA consultation organised by Black Mental Health and GeneWatch UK. He also covered this topic. Some of the notes I took during his intervention:
There are strict statutory limitation on what happens with access to the NDNAD. In the entire country there are only 33 people who have access to this database. It's not the case that the nearest police station can tap into, it's severely restricted.
Since it was bought in 1995, there has been absolutely no leak whatsoever from the DNA Database
Back to Alan Johnson:
In relation to those NPIA and FSS staff, there has been one instance of unauthorised use of the database during the last five years. This involved a contractor working for the FSS who was found to have used an administrator account on the IT system rather than his own. Following an investigation by the NPIA, no evidence of any improper access to database records was found. However, as use of the administrator account was in contravention of security procedures, the individual was removed from further work on the database. No incidents of unauthorised or improper use of match reports by police and law enforcement personnel have been reported to the NDNAD in the last five years.
Since the NDNAD was set up in 1995, two instances of loss of data have been reported. These took place in February 2009 when the FSS faxed DNA reports intended for two police forces to incorrect fax numbers. In both instances, the faxes were either retrieved by the police or destroyed within 36 hours of the event. A thorough investigation was undertaken by the NPIA and reported to the Home Office. No evidence was found of any malicious intent by any individual.
So which one is it: 'absolutely no leak whatsoever' or 'one instance of unauthorised use' and 'two instances of data loss'? Considering the detail in Alan Johnson's answers and some other surprising statements by Alan Brown, I'm ready to bet on the data leaks and losses. It's still much better than for many other government databases though.
The Mail reported on a case of industrial espionage in 2006 where FSS alleged five civil servants who help run the NDNAD copied confidential information and used it to set up a rival database. "The [writ] document adds it would not have been possible for the five men to create the software necessary to produce a DNA database without having had access to 'and copying and/or retaining copies of the software and/or the database.'" However one of the defendent said: "We have never been accused of taking personal information about individuals from the DNA database. What we are accused of is taking the database itself, not the information." There's not enough information to determine if this is the same case referred to by Alan Johnson, but the discrepancy between the number of people involved in the two descriptions would suggest these are two different cases.
The NPIA, in its 2008/09 annual report, states that no personal data related incidents were reported to the ICO. However there were four loss recorded in the department of inadequately protected electronic equipment, devices or paper documents from outside secured Government premises, and one unauthorised disclosure. These can be for any of the systems controlled by the NPIA and not necessarily the NDNAD.
These statements are specifically about the NDNAD and would not take into account any authorised access or data loss on other databases that contain some of the NDNAD information. It was revealed in 2006 that one of the three accredited laboratories, LGC, was building its own mini-database of DNA records. Dr Wallace from GeneWatch UK commented at the time: "This makes a mockery of claims that access to and uses of the database are tightly restricted and controlled". Police National Computer (PNC) records contain DNA report summaries, which although they do not include the DNA profile, list information such as status indicating whether the arrestee has been convicted, barcode number of the sample, name of the lab used and sample type - usually mouth swab.
Alan Johnson concludes:
As a result of the investigation into this incident, an existing project to replace use of fax was accelerated. As from 17 April 2009, fax has no longer been used to transmit any DNA reports to forces. They are now sent in line with Cabinet Office guidance over a secure network either by email or as a web service on a secure network.
The National Police Improvement Agency (NPIA) gives more details in the April edition of the Forensics21 programme monthly update:
DNA Fax Replacement Project
In the Autumn of 2008 the ACPO DNA Operations Group, agreed to decommission the faxing of match reports from the National DNA Database and move to a more secure and efficient method of communication.
NPIA commissioned the Forensic Science Service (FSS) special projects team to provide an alternative solution to faxing, particularly for those forces not yet on eDNA. An interim email solution was proposed. The project to move all forces onto electronic receipt of DNA match, summary and elimination reports was successfully piloted with two forces on 8th April. The email solution went live with all forces on 17th April as planned. All faxing of DNA reports has ceased to operate and all DNA reports are now only sent over the CJX restricted network either by email or as a web service.
There are further significant business benefits associated with eDNA and in particular those relating to security, rapid accurate exchange of security and the ability to interface with other force data systems. A project is now being established to facilitate the roll-out to all forces.
What about the DNA samples held by the three accredited laboratories contracted to store them: the Forensic Science Service (FSS), LGC Forensics Ltd. and Orchid Cellmark? Alan Brown reassured one man concerned about what the police may do with his DNA samples:
Your DNA is held in a secure laboratory. It's not held by the police. It's not in a police station. It's in secure conditions.
The consultation document doesn't add much:
The physical storage of samples is also subject to stringent security arrangements. The samples are held at laboratories on behalf of chief police officers.
That's the theory, but earlier this month there were headlines about an instance of DNA samples found next to tubs of ice cream in a West Yorkshire police freezer. The Times:
The report [by Her Majesty’s Inspector of Prisons and Her Majesty’s Inspector of Constabulary] said: “Policies and audit trails relating to the handling, storage and submission of DNA, blood and urine samples had not resulted in samples being stored correctly or dealt with expeditiously.
“Samples were incorrectly stored in fridges and freezers alongside ice cream, with some improperly bagged.
“This led to confusion among staff tasked with submitting samples so many were not submitted for analysis and had been allowed to remain in freezers for a number of years.”
The report highlighted particular concerns about a blood sample labelled as related to a deceased victim of a road accident which had either not been submitted for toxicology tests or properly disposed of if not required.
It said: “We were unsure whether it really related to a road death investigation or whether there was an error on the label.
“We also noted a number of historic blood samples relating to ’unconscious drivers’, which again appeared neither to have been analysed nor disposed of.”
The inspectors also questioned the security of samples which were put in fridges or freezers in insecure rooms.
“One freezer door was damaged and wide open, calling into question the integrity of the samples inside,” the report said.
“Samples in another freezer had been defrosted and it was noted on the exhibits themselves that this had occurred, yet they had not been disposed of.
“These practices were exposing the force to unacceptable levels of risk. The maintenance of public confidence in forensic evidence is crucial.”
David Crompton, West Yorkshire’s Deputy Chief Constable, said: “The report refers to one instance of ice cream being found in a fridge near forensic samples.
“These samples were hair, blood, urine and fingernail samples from people who had been eliminated from criminal inquiries - though they were of no further value and there was no intention of either subjecting them to analysis or putting them on the DNA database.”
Mr Crompton said more than 100,000 people are detained in custody by West Yorkshire Police every year, which is 300 per day. “Managing detainees is a very challenging task,” he said.
This may well be an exception, but that's no excuse for those whose DNA was taken.
First published on 2009-07-23; last updated on 2009-07-24.
An informed debate on the benefits and risks of sampling the
DNA of all arrestees and retaining their DNA profiles in the National
DNA Database (NDNAD) is necessary. This is why we have been lamenting
the poor quality of the Home Office Keeping the right people on the
DNA database consultation as it is distracting
from a discussion of the substantive issues. With just over two weeks
left to contribute responses, it is helpful to find an
analysis by academic experts questioning the scientific
argument for 'how long innocent people should be adjudged as
“honorary” criminals' and their DNA profiles kept
on the NDNAD. Keith Soothill,
emeritus professor of social research, and Brian Francis,
professor of social statistics, both from Lancaster
University published Keeping
the DNA link in the New Law Journal
[the article is no longer available online but it may re-appear on
the publication page
of the ESRC National Centre for Research Methods].
The authors found in earlier works that even though offenders may have a
diverse criminal career, that the risk for sex offenders and kidnappers
to repeat offending is greater soon after their first conviction.
Much has been written in this blog and elsewhere about the confusion in the consultation of the use of data about offenders to justify options about arrestees – who have never been convicted of or admitted to an offence. The authors raise a related issue: 'In fact, arrests are useful indicators of police action but not of guilt. Re-arrests are dangerous indicators and making arrests the pivotal criterion encourages the notion that we are moving towards becoming a police state.' This is made worse by the option suggested by the Home Office where 'DNA information would not be deleted after a certain number of years from first arrest, but from their last arrest.'
An essential confusion between two distinct approaches is made by Soothill and Francis:
In much of the consultation document there is confusion between two types of discourse—a discourse relating to crime and a discourse relating to criminals. A discourse on crime interests the police and largely underpins the scientific analysis in Annex C of the consultation, while a discourse on “honorary” criminals who are created by retention policies interests those concerned with civil liberties. The danger is to assume a one-to-one relationship between a crime and a criminal. In fact, there are many more crimes than criminals. Indeed, there is a remarkable lack of discussion about persistent criminals—a topic that has exercised the mind of the Home Office in recent years. In brief, there is widespread evidence that around 7% of the population account for one-half of all convictions.
This paragraph efficiently clarifies issues in framing investigations and debates about the retention of individuals' DNA. Here's an excerpt from the author's conclusion.
We believe that a more appropriate analysis is needed to justify a retention period of six years. Second, if one is making a case for longer retention periods for those arrested for serious offences, then the only reason for them to be treated differently is that they have a greater risk of a serious offence. In contrast to the consultation document, we do believe that one can measure a heightened risk of a subsequent serious offence, and it should be on this basis that one moves forward with a longer retention period.
A couple of other articles than Keeping the DNA link, also looking at the post ECtHR ruling in S & Marper v UK situation, have recently been published:
[...] It appears that a decision was taken not to address the reasons for the [Strasbourg] Court’s conclusion in the Consultation Paper. This means that this has yet to be done. [...] The issues involved raise difficult scientific and technical questions, and the policy choices in this area also have constitutional and civil liberties implications. The need is for an objective, impartial and balanced assessment in which the public can have confidence. Bearing these factors in mind, I suggest that the issue is one on which, for most of the twentieth century, advice would have been sought from a Royal Commission made up of the leading experts in all the relevant disciplines or a body such as the Law Commission. [...] The Consultation Paper, our first considered official reaction to the judgment, has not taken on board or addressed and rebutted the Court’s criticisms of our systems. We need to do so if we are to address the challenge of producing a legal and regulatory regime which encourages the benefits of DNA profiling to be appropriately available for the detection and deterrence of crime while being clearly compatible with the European Convention on Human Rights.
[...] The proposal to destroy all DNA samples is stunning, goes well beyond the ruling, and is to be applauded. The 6- and 12-year retention times, on the other hand, seem excessive, and they may be reduced further depending on public reaction. [...] The European Court of Human Rights is, I think, correct to emphasize the differences between democracies and police states as reflected in the types of personal information police are permitted to collect and retain about citizens. Each individual point of data may seem insignificant, but when data sets are merged, privacy is effectively destroyed. No one has made the privacy point better than Aleksandr Solzhenitsyn in his novel Cancer Ward, in which he writes that, in a totalitarian state, people are obliged to answer questions on a variety of forms, and each answer “becomes a little thread” permanently connecting him to the government [...]
You have until 2009-08-07 to send your response before the consultation period closes.
First published on 2009-07-20; last updated on 2009-08-12.
In Sentenced to genetic probation I pointed out some issues with the quality of the Home Office consultation on 'keeping the right people on the DNA database'. I attempted - without success - to obtain a corrected version of the included research paper and the correspondence the Home Office had about it. Earlier this week, as a last recourse to try to get a version of the consultation of a quality sufficient to address the substantive issue without being too distracted by all its mistakes, I followed the suggestion appearing on p.96 of the annex document:
If you have a complaint or comment about the Home Office’s approach to consultation, you should contact the Home Office Consultation Co-ordinator, Nigel Lawrence. [...] The Co-ordinator works to promote best practice standards set by the Government’s Code of Practice, advises policy teams on how to conduct consultations and investigates complaints made against the Home Office."
As you can see from the email exchange below, this went nowhere. The arrogance shown by the Home Office in its disregard to the audience of this consultation, in publishing a draft statutory instrument only a week after publishing the consultation and in how it deals with complaints about the consultation unfortunately appears rather typical. This morning, Alan Brown, Head of Police Powers and Procedures, Home Office - the person to whom responses to the consultation should be sent to - was a guest speaker at the seminar for black and minority ethnic (BME) groups on the National DNA Database (NDNAD) organised by Black Mental Health and GeneWatch UK. Instead of taking this opportunity to fully engage with a community overrepresented on the NDNAD, Alan Brown answered only a few questions after his intervention and promptly left the building. (A colleague from his department remained in the room but she didn't have the authority to participate in the debate or answer any question.)
Monday 13th July 2009, email I sent to Nigel Lawrence:
Dear Mr Lawrence,
May I request you review the 'Keeping the right people on the DNA databaseKeeping the right people on the DNA database' consultation as it is my understanding that it is in breach of the Cod of Practice, in particular of Criterion 3.
My concerns are:
1/ The chief economist was given an earlier draft (with different options) to review, hence his comments do not all apply to the consultation as is.
The proposed plans (published in the main consultation document) are not consistent with the preferred option in the impact assessment (published in the annex). The impact assessment recommend destruction of all fingerprints after 15 years while the consultation recommends destruction of the fingerprints at the same time as for the DNA profiles.
The different retention periods for fingerprints and DNA profiles is one of the five points Chief Economist John Elliott draws the reader's attention to in his examination of the impact assessment. So it appears he was not informed of the change of mind of the Home Office between when the impact assessment was written and the time the proposed plans were finalised.
2/ The quality of the information that can be verified with the information in the consultation is poor.
For instance the Table 3 on p.15 is incorrect. From the text on p.30 of the annex and the note 8 on p.31, one can infer that the dates in the table are incorrect and should be those found in the text, i.e. 2004, 2005 and 2006. Also, the percentages in the text for the NFA, cautions and non custodial sentences groups do not match those of the table (in one case the figure for the NFA group is higher than for the cautions group and the opposite in the other).
If we look past the typos and try to make sense of the data in this table: this data appear to come from 532 cases from three samples in June over three consecutive years, however, "that data came only from the first of a month, and aware that errors of estimation will be magnified by multiplying the figures to give a monthly total...", so this data is in fact an estimation based on approximately 18 cases (532 divided by the number of days in June) taken over three days at one year interval, or 7, 8 and 3 samples for the respective days. Is that a valid enough sample for such a consultation?
The research by the Jill Dando Institute does not appear to be peer-reviewed.
I can provide you with other examples if you wish.
3/ Most of the research included to justify the Home Office options is not relevant to those options.
Key options are about individuals who have been arrested and not convicted, and whether they may later offend. Included references are to studies about individuals re-offending, i.e., who have been convicted for the initial arrest, and hence are not applicable to the consultation's options.
The confusion this causes is such that even ministers after having had early access to the consultation have demonstrated, when interviewed at the launch of the consultation, their misunderstanding as they kept saying "re-offending" when talking about arrestees who may later commit an offence but have not yet "offended" (for an example where Jeremy Paxman had to keep reminding Vernon Coaker of this essential distinction, check out http://news.bbc.co.uk/today/hi/today/newsid_8037000/8037364.stm). If even ministers, with all the specialist briefings they have access to, are confused by this essential aspect of the consultation, what chance do potential respondents have?
The samples of some of the surveys are also too specialised to be representative of the population of the NDNAD. For instance the oft referred Cambridge longitudinal study of Lila Kazemian was about "411 working-class males in London", this is hardly representative of either the geographical or gender spread of the NDNAD population or unlikely to have similar racial bias either.
4/ The costs and benefits model, in the impact assessment, is constructed on a tower of "key probabilities and assumptions".
Even more problematic is that some of these assumptions are misleading. For instance in section 25) on pp. 64-65, "The probability of committing an offence following an arrest, but no further action, is the same as the probability of committing and [sic] offence following conviction. The probability of this is 40%9". Note 9 lists the source for this statistics: Re-offending of adults 2006 cohort. The data in this report, from the Ministry of Justice, is about "the reoffending of adults released from custody or starting a community sentence", i.e., it has nothing to do with those offending for the first time after an earlier arrest.
5/ The cost of destruction of DNA samples is likely wrong.
Looking at Option B on p.52 and Option II on p. 56, it appears that the figure of L91,927,500 for destruction of DNA sample likely assumes an unlisted review cost. However, there's no need for review (except in a very small number of cases). As there can be a bulk deletion, this is most likely a mistake.
In view of all the above it is extremely difficult to respond to the consultation when it is of such poor quality and its authors shows such disregard to its audience.
I tried to contact both Dr Ken Pease and Lila Kazemian but neither responded to my emails (surprisingly their work appear to contradict the conclusions reached by the Home Office.). I also attempted to obtain communication between the Home Office and Dr Pease under the FoIA, but this was exempted.
This complaint is another attempt to ensure that a corrected and improved version of this consultation gets published with enough time to respond to it.
Wednesday 15th July 2009, Lawrence Nigel wrote:
Dear Mr Mery,
Thank you for your email (below) which highlighted the concerns you had on the DNA consultation document. You believed the consultation had not followed Criterion 3 of the Government's Code of Practice on Consultation.
Under Criterion 3 of the Code consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits. In this respect we believe the consultation document meets that Criterion.
Running public consultations makes preliminary analysis available for public scrutiny. It also allows additional evidence to be sought from a range of interested parties to help inform the development of the policy or its implementation. We therefore welcome stakeholder views on the details on the policy being consulted on as set out in the document and views of the costs and benefits as set out in the consultation stage impact assessment. We also welcome views from stakeholders where they seek to challenge the information contained in consultations. Together this helps inform the development of the policy and the development of the final costs and benefit impact assessment.
I have taken the liberty of forwarding your comments to the relevant policy lead for inclusion as part of the consultation response. If you wish to add to or amend or withdraw these comments, please write or email these to the addresses at page 23 of the DNA consultation paper. Your views will be considered along with views of other interested stakeholders.
Many thanks again for your comments.
Wednesday 15th July 2009, my reply:
Dear Mr Lawrence,
Many thanks for your prompt response. I find it very disappointing that it doesn't address the specific points I raised. This does not give me confidence that this review process to ensure compliance with the Code of Practice is an effective one. As expressed in my original email, I considered this a last recourse option so that we can have proper evidence and costing to build responses on.
I have no problem with my email being shared and I stand by what I wrote you, but it would have been polite for you to ask me prior to forward it. For your information, I am considering publishing this email exchange so that it can inform others considering raising concerns with this or other consultations.
The only evidence everyone agrees on is that "the number of matches obtained from the Database (and the likelihood of identifying the person who committed the crime) is 'driven' primarily by the number of crime scene profiles loaded onto the Database" (as the Home Office put it in 2005). To dare calling for the retention of DNA profiles of innocents for years, the Home Office must stop this arrogant behaviour more typical of a child... and publish strong peer-reviewed evidence.
The National Policing Improvement Agency (NPIA), custodian of the National DNA Database (NDNAD), has published its Annual report and accounts 2008-09 (pdf). Below are annotated extracts about the NDNAD:
p.11:
National DNA Database
The DNA Database is used by the police to identify offenders and eliminate people from enquiries.
- On average, the database provides the police with over 3,100 suspect-to-scene matches each month
- [...]
- In 2008/09, an estimated total of 34,280* crimes were detected in which a DNA match was available and/or played a part in solving the crime, a projected increase of four per cent on 2007/08.
- Between April 1998 to September 2008, there have been approximately 290,000 detections in which a DNA match was available using the NDNA Database or played a part in solving the crime.
* Based on actual figures for Q1- 2 of 2008/09 projected for the full year
These figures are misleading as most matches will be with individuals having nothing to do with the crime and hence do not result in prosecutions or convictions. Also included are false matches that occur when the DNA profile from the crime scene is not complete. Many matches occur with victims or passers-by or are false matches. For instance if a crime happens in a pub, most of those going for a drink that night whose DNA profile happens to be on the NDNAD will be counted as successfull matches. You don't even need to have been to that pub for your DNA to be matched if you shook hands with a friend who then went to that pub and left some of your DNA on his pint glass. For more info see the Ten myths about the National DNA Database or GeneWatch UK's evidence to the European Court of Human Rights (doc).
As the database gets bigger, the number of false matches will increase. The growth of the National DNA Database increases the risk of miscarriages of justice.
Detections' are crimes that have been recorded as 'cleared up' by the police. Here's GeneWatch UK's analysis in its evidence to the ECtHR: "[O]nly about half of these [detections] are ‘new’ detections, which require the Database – in the other cases the suspect will already have been identified prior to collection of their DNA. These figures are dominated by volume crimes, such as burglaries, and separate figures are not available for more serious crimes such as rape and murder, for which the Database is less effective."
p.56:
We are leading the programme to connect the UK to the second generation Schengen Information System in time for 2012. When complete this will allow UK police forces to share and access a European data system that holds alerts on wanted and missing people, stolen vehicles, and certain categories of property.
Also linked to cross-boundary information sharing, last year we carried out a Scoping Study to look at implementation of the Prüm programme. Prüm provides for the cross-border sharing/availability of DNA, fingerprints and motor vehicle registration data on a 24/7 basis. It is designed to intensify cross-border police co-operation, especially in the fight against terrorism, cross-border crime and illegal migration.
Here's a bit more details of what's in store in the EU-Prüm-Decision (derived from the Treaty of Prüm) courtesy of DNA database management review and recommendations 2009 (pdf), a document published by the DNA Working Group of the European Network of Forensic Science Institutes (ENFSI): "The EU-Prüm-Decision deals with the exchange of judicial and police information between the EU-member states and some associated countries (Norway, Switzerland, Liechtenstein and Iceland). With regards to DNA countries are allowed to search in each other’s DNA-database. To enable this each country creates a copy of its DNA-database with a standardized table structure which can be accessed by common data-exchange and DNA-comparison software which is present in each country. The DNA data exchange and matching system used by the EU member states is similar to DNA data exchange and matching system of the Interpol DNA Gateway. [...] the Prüm DNA-profile exchange system is a hit-no-hit-system meaning that only DNA-profiles are compared. After finding a match, countries can obtain the personal and/or case information associated with the DNA-profile via existing police or judicial channels."
p.63:
At the end of the financial year 2008/09, the principal risks facing the NPIA included those listed below. All risks and uncertainties listed here are being managed effectively through an internal control system.
- The cost of work required to remove data from the DNA database following a European Court of Human Rights ruling could lead to budget overspends or other work needing to be deferred while failure to remove data as directed could lead to reputational damage.
The cost of automated deletion of DNA profiles is estimated at £15,000 (programming cost) in the Home Office consultation. The consultation also mentions as a risk: "deleting the wrong record leading to potential for miscarriages of justice of missed opportunities to detect crime."
Manual deletion after 6 year period, unless individual concerned has been re-arrested or convicted during this period is estimated to cost £52,170,000 over a 20 year period, while deletion upon request from individual concerned after a 6 year period, unless individual concerned has been re-arrested or convicted during this period is estimated at £7,385,000. There's a clear economic argument to automate the deletion process, but to put things in perspective, "[t]he police spend on forensics is estimated to be in the region of £500 million per annum". There are of course many other reasons, already mentioned on this blog, why it's a good idea to have a robust deletion process and use it!
p.64:
In 2009/10 the National DNA Database and associated services will be transferred from the Forensic Science Service (FSS) to NPIA in order to enhance the security and disaster recovery of the database. This will involve the corresponding staff from the FSS.
FSS is currently contracted to operate and maintain the NDNAD. This contract is overseen by the NPIA. The NPIA website still lists end of 2008 as the end date for this contract, however it has been renewed. The eventual transfer of the NDNAD, services and staff from the FSS to the NPIA is news to this reporter. It appears to be part of a wider programme called Forensics21. This programme was "the first to receive approval by the tripartite commissioning body made up of ACPO, the Association of Police Authorities (APA) and the Home Office, and marks a very different approach to delivering transformational change in policing".
p.68:
To support the NPIA’s commitment to promote equality, the Equality, Diversity and Human Rights (EDHR) unit [...] has continued to support the NPIA to complete equality impact assessments on policy, procedure, function, strategy and products. [..] This year, key support has been provided to the impact assessment of the National DNA Database, the IMPACT Programme and the National Police Promotions Framework.
This is an assessment to determine, or more likely confirm, the racial bias on the NDNAD.
p.112:
2008/09 Restated 2007/08 Full Cost
£’000Income
£’000Surplus/(Deficit)
£’000Full Cost
£’000Income
£’000Surplus/(Deficit)
£’000National DNA Database (NDNAD) 9,517 1,337 (8,180) 8,877 1,131 (7,746)
p.113:
National DNA Database
Charges are levied to cover the costs of accrediting the scientific laboratories that analyse DNA samples and send profiles to the Database.
In England, Wales and Northern Ireland, the Forensic Science Service (FSS), LGC Forensics Ltd. and Orchid Cellmark are laboratories accredited to analyse and store DNA samples, and upload DNA profiles. In Scotland, the Police Forensic Science Laboratory Dundee is accredited.
p.141:
Business area Achievement Police Science and Forensics Strategy team
Carl Jennings
Sue Mitchell
Ann Fairweather
Caroline GoryllFor outstanding work and quality in the
production of a large quantity of DNA Database
Parliamentary Questions
Relevant parliamentary questions can be searched using tools such as TheyWorkForYou and GeneWatch UK publishes monthly documents on its DNA database: Parliament and consultations page.
(Hat tip to Spyblog: National Policing Improvement Agency annual report and accounts 2008-09 - mobile handheld computers, ANPR database, DNA database, PNC, IMPACT, Aircell for the Tube, Prüm)
In the S and Marper v. UK case, compliance by the UK government with the European Court of Human Rights ruling is supervised by the Committee of Ministers (CoM) of the Council of Europe. (See Sentenced to genetic probation for a complete recap of what happened in the six months since the ruling.) In January, the Home Office provided information to the CoM about the general measures it intends to implement to prevent new violations, similar to that which happened to S and Marper, from occurring and end 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".
This article introduces the full text the Home Office sent to the CoM about the general measures, the meeting notes of the CoM meeting that reviewed this information as well as an excerpt from the information sent by non governmental organisations (NGOs) to the CoM. The tone and level of details of these three documents is very different.
The Home Office's letter is very brief and high-level. The one information it reveals is the composition of the implementation group established by the Home Office to advise it on these general measures. Unsurprisingly, there's a strong presence from both government and police, and no-one from NGOs. More peculiar is that there's no representation from either the National DNA Database Strategy Board (at least from its independent members), which provides governance and oversight of the operation of the NDNAD, or the National DNA Database Ethics Group, an advisory Non Departmental Public Body (NDPB), established to provide independent advice on ethical issues related to the NDNAD to Home Office Ministers and the strategy board.
The minutes from the CoM mostly takes note of what it was sent by the Home Office but also adds some salient data. The minutes record that the CoM will postpone decisions to later this year when it will receive more information on the outcome of the Keeping the right people on the DNA database consultation and on the progress of the Policing and Crime Bill. The letter from the NGOs is the most extensive and practical, suggesting some immediate interim steps.
When we requested from the Home Office the document describing its response to the general measures, it initially failed to respond and then wrote that this document is in the public domain as the CoM has the authority to publish it. The Home Office has since apologised for these mistakes. The Secretariat of the Committee of Ministers was prompt in sending us a scan (TIF) of the one page document. Here's a text version converted with OCR:
Deputy Permanent Representative of the United Kingdom to the
Council of Europe
StrasbourgNOTE FOR COMMITTEE OF MINISTERS: S AND MARPER CASE
General Measures
3. Publication: the full text of the judgment is available on the Home Office webpage for police powers and procedures
http://police.homeoffice.gov.uk/operationalpolicing/powers-pacecodes/pacecodeintro/.A Summary of the Case has been published in The Times Law Report on 8 December 2008
http://business.timesonline.co.uk/tol/business/law/reports/article5303455.eceA summary of the case has been reported on Lawtel (an online legal information service) with reference LTL 411212008, document no AG 0003290, also containing a link to the judgment
An article Reversal of fortune by Timothy Pitt-Payne is in the New Law Journal (N.L.J. 2009, 159(7352), 5253).
A link to the case is also available on the website of the British and Irish Legal Information Institute. See: http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/ECHR/2007/110.html&query=marper&method=boolean
4. Dissemination: the link to the judgment has been circulated to chief officers of police and to chief crown prosecutors.
5. Other general measures: The Government intends to hold a public consultation on the retention policy for biometric information taken in criminal investigations and the measures and options available to implement the Court's judgment.
The Government has established an Implementation Group to consider the measures required to implement the judgment, the options available and the impact of those options, which will inform the public consultation exercise. The Group consists of representatives from Government Departments at the Home Office, the Ministry of Justice, the Northern Ireland Office, the Attorney General's Office and the Crown Prosecution Service; representatives from the Scottish Government; representatives from the Association of Chief Police Officers, the Police Federation and the National Policing Improvement Agency; and representatives from the Association of Police Authorities.
The Group will report their findings to Ministers for consideration of the content of the public consultation exercise. It is aimed to conduct the public consultation during summer 2009 over a period of three months.
Steps have been taken to remove samples and profiles for persons under the age of 10 years old from the National DNA Database.
Home Office
Policing Powers and Protection Unit
19 January 2009
The information sent by the Home Office was initially scheduled to be reviewed at the March meeting of the CoM, but this was rescheduled to its June meeting:
General measures: The European Court noted in particular “the blanket and indiscriminate nature of the power of retention” (§119). Observing: “ … material may be retained irrespective of the nature or gravity of the offence … or of the age of the suspected offender …[and] the material is retained indefinitely.” (§119). The European Court also noted that there are “limited possibilities … to have the data removed from the nationwide database [and] … no provision for independent review of the justification for the retention according to defined criteria” (§119).
The European Court also made reference to the provisions and principles in a number of other Council of Europe texts applying to retention of personal data including:
- Recommendation R(92)1 of the Committee of Ministers on the use of analysis of DNA within the framework of the criminal justice system
- Recommendation R(87)15 of the Committee of Ministers regulating the use of personal data in the police sector
- Article 7 of the Data Protection Convention1) The DNA database: The United Kingdom authorities confirmed that steps have been taken to remove the samples and profiles for children under the age of 10 from the National DNA database (10 being the age of criminal responsibility in the UK).
• Information from the House of Commons Library - Standard Note SN/HA/40409 of 09/04/2009 [pdf]: As at 01/01/2009 there were 5 140 940 profiles on the National DNA database for an estimated 4 457 195 individuals. Of those, 96 profiles belonging to children aged under 10 were deleted. As at 05/03/2009 there were no profiles of children under 10 on the database.
As at 31/03/2008, 857,366 people with profiles on the National DNA database had no record of a criminal conviction according to police records.
2) Public consultation: The United Kingdom authorities confirmed that they will hold a public consultation on the measures and options available to implement the European Court’s judgment. The consultation will be open for three months during the summer of 2009.
The government has established an Implementation Group to consider the measures required to implement the judgment, the options available and the impact of those options. The Group consists of representatives from the Home Office, the Ministry of Justice, the Northern Ireland Office, the Attorney General’s Office, the Crown Prosecution Service, the Scottish Government, the Association of Chief Police Officers, the Police Federation, the National Policing Improvement Agency and the Association of Police Authorities. The Group will report their findings to government ministers for consideration in relation to the content of the public consultation.
• Information is awaited on the progress of the consultation.
3) Policing and Crime Bill: The Policing and Crime Bill was debated in the House of Commons, in Committee (a select group of MPs) on 26/02/2009. The Bill is not yet law. In that debate, the government proposed the inclusion of three new clauses which would amend the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to give the Secretary of State the power to make regulations governing the retention of fingerprints and DNA. These clauses will be the legal basis for any regulations that the government makes following the public consultation. During the debate, the clauses were strongly criticised by MPs as the powers they create mean that any regulations made following the consultation will be passed as secondary legislation under the “affirmative resolution procedure”. This means that parliament will not be able to debate the content of the regulations but only vote to adopt or reject them in their entirety without time allocated for a full parliamentary debate.
• Information is awaited: on the progress of the relevant clauses in the Policing and Crime Bill.
4) Publication and dissemination: The judgment was widely published in the legal press and on the Home Office website. It was reported inter alia in The Times Law Reports on 08/12/2008, Lawtel Ref LTL 4/12/2008 and the British and Irish Legal Information Institute. The judgment was disseminated to chief police officers and to chief crown prosecutors.
The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.
Non governmental organisations GeneWatch UK, Liberty, Privacy International, Actions on Rights for Children, and No2ID sent a detailed five-page joint letter to the CoM in April (.doc). It concludes with the following suggestion:
<snip>
We note that the Committee of Ministers may adopt interim resolutions, notably in order to provide information on the state of progress of execution or, where appropriate, to express concern and/or to make suggestions with respect to the execution of the judgment (Rule 16). We also note that where supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, the Committee may refer the matter to the Court for a ruling on the question of interpretation (Rule 10).
In the light of our concerns, we respectfully urge the Committee to consider adopting an interim resolution covering the following matters:
- The need for the implementation of minimum safeguards in primary legislation in a timely manner, providing for immediate automatic removal of records from the majority of unconvicted persons;
- The need for strict time limits on retention following acquittal for data from any category of persons considered to be exceptional, alongside clear justification for such exceptions, judicial oversight, and a procedure for appeal;
- The need for a presumption in favour of removal of the data of unconvicted persons, not a requirement for individuals to petition for removal case-by-case;
- The need for clear rules which avoid the potential for abuse and arbitrariness;
- The importance of the Court’s particular concerns in relation to minors;
- The need for consultation on more detailed rules and safeguards.
In our view, the setting of minimum safeguards to protect the right to privacy in a timely manner would not preclude or obviate the need for timely consultation on more detailed matters. Large numbers of innocent people with records on the relevant databases are currently awaiting deletion of their data, and are looking to the Council of Europe to assist the UK Government in its interpretation of this important judgment.
The CoM decided not to adopt an interim resolution at this meeting and will reconsider how the Home Office complies with the European Court ruling later this year. You have until 2009-08-07 to respond to the Home Office consultation.
[Briefing prepared for the Coalition against Secret Evidence.]
The right to a fair trial, an essential principle of the legal system enshrined in both domestic and international law, is limited by the use of secret evidence in judicial proceedings. For justice to be served, an accused person must know the case against him and be able to scrutinise and challenge the evidence used against him in a fair, open and public hearing.
The use of secret evidence has become all too common in deportation and terrorism cases. The Special Immigration Appeals Commission (SIAC) deals with appeal hearings against decisions made by the Home Office to deport someone on grounds of national security. When the government deems that the publication of some evidence could pose a risk to national security, appellants, and their counsel, are denied access to the full evidence against them. They cannot properly prepare a defence. To mitigate this situation, special advocates – state-appointed barristers who represent the detainees in closed sessions – are given access to the secret evidence. However they are prohibited from discussing anything that takes place in these sessions with either the detainees or their lawyers.
This closed court process does not give confidence that the evidence can be properly examined or that it has been obtained in a wholly legal manner. Former Special Advocate, Dinah Rose QC describes the great difficulties she encountered taking evidence in closed sessions when the Home Office had applied to revoke a detainee’s bail on the basis of secret evidence: “I can still recall my deep feeling of shame when I heard the appellant ask the judge the question: why are you sending me to prison? To which the judge replied: I cannot tell you that. I could not believe that I was witnessing such an event in a British court. I could not believe that nobody protested or made a fuss. They simply took him to jail, without any explanation at all.”
The reliability of secret evidence is questionable; it may consist of hearsay evidence possibly obtained though bribery or coercion or even from torture. Information received from friendly countries, such as Pakistan, Algeria and the United Arab Emirates, as well as from Guantánamo Bay, likely to have been obtained through the torture of alleged terror suspects cannot be used in an open court in the UK. However, it can and has been passed as secret evidence. On the basis of secret evidence concealed from them, individuals – sometimes not even charged – have been detained in high-security prison units for years without ever knowing what they are accused of. Around 20 individuals are currently waiting for SIAC to hear their appeals against deportation, and several dozen have passed through SIAC since 2001. Some have been deported. Some are let out of prison, but given bail conditions so restrictive that they choose to risk torture instead by seeking ‘voluntary’ return to their countries.
Like SIAC proceedings, control orders - and the state's defence against appeals to end or modify them - may invoke secret evidence. Forty, or more, have had to live under the severe conditions of the control-order regime (a breach of which becomes crime). With restrictions on visitors, use of phones or internet, these orders affect their families as well. They can have their property confiscated, bank account frozen, face travel restrictions and curfews of up to 16 hours per day. Their movement outside the home may be limited to a few streets. These conditions, continuing for years, have led some to contemplate suicide. Control orders can be imposed indefinitely, although they are renewed every 12 months. Seventeen such orders are currently in force.
When the government invokes national security as a ground to introduce the use of secret evidence, the accused has no chance. There is no way to challenge either the evidence or the decision to use it, whether it is justified or whether it is a politically motivated catch-all excuse. Gareth Peirce explains: “‘Security’ is such a dramatic yet ill-defined concept that those in power are able to curb criticism and shut down debate by invoking it and by claiming to possess vital knowledge (which cannot, of course, be safely revealed) to support their actions or policies. Those in power draw on traditions of deference and non-partisanship when it comes to security, making it unnecessary for governments to provide reasoned justification when security is said to be at stake. There is therefore a dangerous circularity to the entire process. Deference is fed in part by ignorance, and ignorance is fed in turn by claims that secrecy is indispensable. The public receives only the barest of justifications, which it is supposed to take on trust, while the government machine ignores or short-circuits normal democratic processes.” As the role of the UK in complicity with torture is being revealed little by little, we discover that “national security” is a convenient excuse to hide possible culpability by agents of the government.
SIAC is not the only form of legal proceedings to make use of secret evidence. Foreign Secretary David Miliband has repeatedly tried to stop the High Court from disclosing information about what Britain's security and intelligence agencies knew of the torture of Binyam Mohamed. This case was only brought after the government refused a request by the lawyers to make public “secret evidence” that could exculpate Mr. Mohamed in an American case. Miliband has argued that publication would cause irreparable harm to Britain’s relationship with America.
A government proposal, in the Coroners and Justice Bill, to hold some inquests in secret where issues of national security were involved was dropped in May 2009, only after vociferous campaigning by CAMPACC, Inquest and other organisations. However, the government can also use powers under the Inquiries Act 2005 to substitute an inquiry for an inquest and to hold part of the inquiry in secret in inquests involving the military or, again, when questions of national security arise. Solicitor Louise Christian adds “Rule 54 of the employment tribunal procedures allows an order for secret evidence and "special advocates" even in employment cases. Government employees such as immigration or customs and excise officers from whom security clearance is withdrawn – all of whom just happen to be Muslims – are not told the reasons they have lost their jobs. Instead they are faced with secret evidence and orders for "special advocates" in their race discrimination claims.” Secret evidence can also be used to refuse or revoke British citizenship – those affected have no right to know the reasons for these actions.
In February, the European Court of Human Rights ruled that when the open evidence is insubstantial and that the evidence relied upon is largely to be found in the closed material that those accused are not “in a position effectively to challenge the allegations against them”. This constitutes a violation of Article 5(4) of the European Convention on Human Rights, which states: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Earlier this month, the House of Lords ruled unanimously that the use of secret evidence to impose control orders on individuals in situations was a breach of their right to a fair trial (Article 6 of the European Convention of Human Rights), that “everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him.” [7] This reliance upon secret evidence by the United Kingdom has also been condemned by other international bodies including “the Eminent Jurists Panel” of the International Committee of Jurists, the UN Committee on Human Rights, the UN Special Rapporteur on Human Rights, the European Committee for the Prevention of Torture and the European Commissioner for Human Rights.
An Early Day Motion (EDM 1308), tabled by Diane Abbott MP, declares “this House believes the use of secret evidence in UK courts is fundamentally wrong [...] and calls on the government to begin an immediate independent review into the use of [secret] evidence” in UK courts. Several concerned NGOs and individuals have set up the Coalition Against Secret Evidence (CASE) and will be lobbying against the use of secret evidence in the UK courts.
To find out how you can help and learn more, check out the CASE website.
(Many thanks to the CASE supporters who reviewed this article and offered corrections and improvements.)
Bootnote: my MP, Labour, has not (yet) signed the EDM; I am still waiting to hear from her as to whether she will. She wrote me last month:
As a lawyer the use of secret evidence to detain terror suspects is of great concern to me. The principles that the accused should know the case against him and be able to challenge and that scrutiny of the evidence and decision should be possible are at the central to achieving justice. Terrorism cases where the publication of evidence poses a risk to national security present real challenges to our judicial system and to these principles.
The Special Immigration Appeals Commission plays an important part in meeting these challenges by allowing evidence that could not be heard in an open court to be examined by a Special Advocate and we must have confidence that they are able to perform this role with as little obstruction as possible. I was therefore very alarmed to read the reported comments of the former Special Advocate, Dinah Rose QC who described the great difficulties she encounters in defending her clients and exposing the falseness of evidence presented by the prosecution.
Further reading:
The Home Office consultation Keeping the right people on the DNA database (see Sentenced to genetic probation) explains in Annex B: 'All NDNAD records have the same structure consisting of 36 data fields. However, some of these fields are only relevant to subject profiles, and some are only relevant to crime scene profiles. Therefore, no record will have all data fields completed.' The list included is mostly correct but still manages to miss a couple of fields, and doesn't describe at all the second screen of information. Below is the complete list with explanations and a graphic guide that was sent by a reader of this blog.
The National DNA Database (NDNAD) holds both DNA profiles derived from samples taken from known individuals (referred to as subject samples) and DNA profiles derived from samples left at unsolved crime scenes from unknown individuals (referred to as crime scene samples). DNA subject profiles consist of a set of markers, currently ten, plus a gender marker.
When a suspect is arrested for a recordable offence and detained at a police station, two DNA samples are taken unless the arrestee already has a PNC record and it indicates that their DNA profile is already on the DNA Database. (Even when a DNA profile is already loaded, the police may exceptionally take a new sample.) The DNA samples and a form are put in a sealed bag and sent to a private forensic lab. The lab processes one of the samples to obtain a DNA profile and keeps the other one in a freezer. The DNA profile is then loaded onto the National DNA Database.
1. Sample status
1a. DNA sample barcode. Reference of the barcode sticker that was put on the sealed tubes holding each sample. The DNA sample barcode number for DNA samples of those arrested begin with a 9 (Police elimination sample barcode numbers begin with a 7). Following the introduction of a new PACE DNA sampling kit on 2005-04-01, all profiles from arrestees are of evidential standard; this can be recognised by the first two digits of the barcode number (96 and above).
1b. Arrest summons number (ASN). The ASN is one of the unique reference numbers used to identify the sample.
1c. Supplier. The forensic provider whose lab profiled the sample.
1d. Class code. Identifies how the sample is treated on the database and whether the sample was from an arrestee, a volunteer etc.
There are two classifications of criminal justice sample records on the NDNAD, namely 'SA' and 'SP'. In April 2004 the style of kits used to take DNA samples was changed to tie in with the implementation of changes to the Police and Criminal Evidence Act 1984 made under the Criminal Justice Act 2003. 'SA' is the code for samples taken prior to April 2004 and 'SP' is the code for those taken post April 2004 using the revised DNA kits.
1e. Police national computer (PNC) status. Reconciled or non-reconciled; denotes whether there is a link to PNC.
The consultation explains:
6.27 There are approximately 850,000 legacy profiles [of people arrested but not convicted or acquitted] of which approximately 500,000 have no linked PNC Record. This means it is not possible to tell whether the latter profiles relate to persons arrested and not convicted or subject to no further action, or to people who have been convicted.
Curiously, as I reported in The DNA database and you, the National Police Improvement Agency detailed in a Freedom of Information response last year that:
Data obtained from the Police National Computer (PNC) on 31 March [2008] indicates [...] 573,639 persons (14% of persons on the NDNAD sampled by forces in England and Wales) had no current conviction, caution, formal warning or reprimand recorded on PNC. The PNC records for the other 283,727 persons (7% of persons on the NDNAD) had been removed from the PNC.
That's a total of 857,366 legacy profiles as of end of March 2008, basically the same as the more recent recent approximate 850,000 overall number of the consultation. As we know that only a few hundreds profiles were deleted between these two data (e.g., 274 for the calendar year 2008; xls), the huge decrease in number of profiles of definite innocents (from 573,639 to 350,000) and corresponding increase in the number of unreconciled profiles (from 283,727 to 500,000) doesn't make sense. As we have shown in Sentenced to genetic probation that there are several mistakes in the consultation, the most like explanation that the data in the consultation is mistaken. From the data, on can hazard the guess that possibly the numbers of definite innocent profiles and unreconciled profiles were swapped.
The PNC record also includes data about the DNA profile. Here's an excerpt of the relevant section from a copy of my PNC record from 2006, with some explanations (in some of the entries I have replaced digits with the character 'n'):
DNA report summary
A/S ref: 05/0000/00/nnnnnnA. The arrest summons reference number, the first two digits are for the year.
DNA status: Confirmed. Marker indicating the status of the DNA sample and profile and whether the arrestee has been convicted.
(Note that the DNA status in this example is incorrect, 'Confirmed' indicates that the profile is on the database and a conviction has been achieved. I have never been convicted. At the time this PNC record copy was obtained, this field should have been set to 'Profiled' indicating only that my DNA profile was on the database.)Sample barcode: 96nnnnnn. Barcode number of the sample.
Date of sample: 28/07/05. Date the sample was taken.
Sent to lab: Forensic Science Service. Forensic provider's laboratory to which the sample was sent to, i.e., FSS.
Sample type: Swab. The sample type, i.e., mouth swab.
DNA FS/Ref: 01MS/CUSnnnn/05. Custody record number for this arrest, i.e., 01 stands for the Met, MS for Walworth police station, CUSnnnn is the custody number, and 05 is the year.
1f. Criminal Record Office (CRO) number. Identifier given to an individual when fingerprints are taken (the last two digits (/nn) in a CRO number indicates year of issue. When the CRO number is retained, the minimum information that is held consists of the surname, forname(s), sex and date of birth of the subject.
1g. Police national computer (PNC) ID number. The PNCID is automatically allocated as a unique identifier when the PNC record is created. The PNCID and CRO number are two different numbers issued by two different systems although both can be held on the PNC.
2. Case details (relates to crime scene samples)
2a. Case lab code.
2b. Case year.
2c. Case number.
2d. Offence code.
2e. Job number.
2f. Item number.
2g. Crime Number.
3. Customer details
The customer is the police force that took the sample. The chief constable of that force is the owner of the DNA samples and profile.
3a. Police force code.
3b. Police force name.
3c. Station. A list of station code for the Met is available in the National Archives.
4. Personal details
4a. Name.
4b. Date of Birth.
4c. Alias 1. Aliases do not originate from the PNC record and are not often used.
4d. Alias 2.
4e. Gender.
4f. Ethnic code. Identity codes: 1 for White - North European, 2 for White - South European, 3 for Black, 4 for Asian, 5 for Chinese, Japanese, or other South East Asian, 6 for Arabic or North African or 0 for unknown.
4g. Ethnic appearance.
5. Profiling details
5a. Sample type. One or two digits code that refers to the type of sample provided (i.e., whether from saliva, hair, blood).
Usually a buccal scrape is taken. A sample is obtained via rubbing inside the suspect's inner cheek with a mouth swab to loosen and collect skin cells. The sample is then put into a plastic tube. The process is repeated with the other cheek so that two samples are taken. This is sample type 3.
Types of samples recovered from crime scenes are more varied. The quality varies and crime scene profiles often have fewer markers.
5b. Batch number. Laboratory batch identifier.
5c. Batch year. Laboratory batch identifier.
5d. Number in batch. Laboratory batch identifier.
5e. Track number. Laboratory batch identifier. Denotes the position of the sample in the gel.
5f. Date sample taken. The date the sample was taken from the subject. It originates from the PNC.
5g. Date sample loaded. The date the PNC stub record was uploaded to the database.
5h. Gel number. Laboratory batch identifier.
5i. Gel year. Laboratory batch identifier.
5j. Test method. DNA profiling technique used (SGM prior to 1999 and SGM+ since)
5k. Date batch first added. Date this batch of DNA profiles was uploaded to the database. (Used in 1990s but no longer used for loading profiles.)
5l. Date profile loaded. Date this specific DNA profile was uploaded to the database.
5m. Forensic supplier. Code for the forensic provider's laboratory.
5n. Whether record searchable. Yes or no answer to the question: is the profile currently searchable on the database?
6. Amplified sample/case details
6a. Sample barcode. Reference of the barcode sticker that was put on the sealed tubes holding each sample.
6b. Case lab. Relates to crime scene samples.
6c. Case. Relates to crime scene samples.
6d. Case year. Relates to crime scene samples.
6e. Batch. Laboratory batch identifier.
6f. Batch year. Laboratory batch identifier.
6g. No in batch. Laboratory batch identifier.
6h. Proc unit. Code for the forensic provider's laboratory.
6i. Gel. Laboratory batch identifier.
6j. Gel year. Laboratory batch identifier.
6k. Sample type. One or two digits code that refers to the type of sample provided (i.e., whether from saliva, hair, blood). See 5a.
6l. Sample description. 'Buccal cells', 'Hair roots', 'Blood', etc.
6m. Control flag. 'Control' for subject sample and 'Stain' for crime scene stain sample.
7. Profile results
The technique used to obtain the DNA profile from a DNA sample, called SGM+, only looks at specific areas known as short tandem repeats (STRs). STRs are places in the DNA where a short section of the genetic code repeats itself. People have varying numbers of repeats, which is how STRs can be used to identify individuals. Ten different STRs are analysed in each DNA sample. Because each STR is made up of two strands – one inherited from the mother and one from the father – this analysis produces 20 bits of information, known as alleles.
The DNA subject profile consists of a string of numbers indicating the number of repeats at each of the ten STRs plus a gender marker.
7a. Locus. Area of the DNA that is tested to create the profile.
7b. Low allele. The number of time the tested sequence is repeated.
7c. High allele. The number of time the tested sequence is repeated.
The custodian of the National DNA Database is the National Police Improvement Agency (NPIA), but the Forensic Science Service (FSS) is responsible for the operation and maintenance of the database. If your DNA profile is on the database and you want to check that the information recorded is accurate, you can obtain this information by sending a data subject access request to the attention of the data protection officer at the FSS. Kevin Reynolds did just that. You can check out how a real records – Kevin's – looks like in last year's post DNA retention of unconvicted people. His story shows how being an innocent with a DNA profile already retained on the DNA database didn't prevent the police from suspecting him of murder. They ignored his retained DNA profile when it should have eliminated him from suspicion.
To get off the DNA database, if you're innocent, write a letter to the chief constable of the force that arrested to reclaim your DNA. If you're successful but have any doubt, requesting a copy of your DNA profile is a way to double check that it has indeed been deleted. Last December, Kevin Reynolds did get confirmation that the deletion of all his samples and records had taken place. It's only when he contacted the FSS that he discovered that only the latter of his two DNA profiles and associated DNA samples had been deleted. He his still awaiting deletion of his earlier DNA profile.
You have until 2009-08-07 to respond to the Home Office consultation.
It's official defending yourself from an accusation you don't know is unfair! Common sense and justice prevail, eventually.
The House of Lords ruled unanimously in the case of Secretary of State for the Home Department v AF, FC and another and one other action that the use of secret evidence to impose control orders on individuals is a breach of their right to a fair trial (Article 6 of the European Convention of Human Rights). This poses a considerable challenge to the control order regime brought in through the Prevention of Terrorism Act 2005.
This follows a ruling in February by the European Court of Human Rights, that when open evidence is insubstantial and the evidence relied upon is largely to be found in the closed material that those accused are not “in a position effectively to challenge the allegations against them”. This constitutes a violation of the right to liberty and security (Article 5(4) of the European Convention on Human Rights), which states: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Coincidentally, Justice, the independent legal human rights organisation, which intervened in AF, released a 238-page report entitled Secret Evidence (pdf) detailing the use of secret evidence in British courts since 1997. Over to Justice's press release:
In an historic 9-0 ruling, the House of Lords this morning held that the use of secret evidence against control order suspects in situations where they did not know the case against them was unfair.
The Law Lords ruled that, unless a suspect was given ‘sufficient information about the allegations against him to enable him to give effective instructions to the special advocate’, there would be a breach of Article 6 of the European Convention on Human Rights.
As Lord Phillips, the senior Law Lord said, ‘a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him’ (paragraph 63 of the House of Lords judgment).
Lord Hope of Craighead said:
The principle that the accused has a right to know what is being alleged against him has a long pedigree .... The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him (para 78).
And:
The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him (para 79).
Lord Scott of Foscote said:
An essential requirement of a fair hearing is that a party against whom relevant allegations are made is given the opportunity to rebut the allegations. That opportunity is absent if the party does not know what the allegations are. The degree of detail necessary to be given must, in my opinion, be sufficient to enable the opportunity to be a real one. The disclosure made to each of these appellants was insufficient to afford him a real opportunity for rebuttal. He did not, therefore, have a fair hearing for Article 6(1) purposes and these appeals must be allowed (para 96).
The judgment coincides with the release of a major report by JUSTICE revealing the growth of secret evidence in British courts over the past decade. JUSTICE, which intervened in AF’s case, this morning published a 238-page report revealing that, since 1997:
- Secret evidence has been used in a wide range of court proceedings from deportation hearings before SIAC, pre-charge detention hearings in terrorism cases, employment tribunals, asset-freezing cases, parole board hearings, and control order cases in the High Court and Court of Appeal (Parts 2 and 3 of report);
- More than 90 special advocates have been appointed since 1997. However no central figures are published and even the government may not know the total number of special advocates that have been appointed (pages 184-188);
- Defendants in some criminal cases are now being convicted on the basis of evidence that has never been made public. Criminal courts have issued judgments with redactions to conceal some of the evidence relied upon. Evidence from anonymous witnesses has also been used in criminal trials and is widespread in ASBO hearings (Part 3 of report);
- In a series of cases before SIAC, the Home Secretary breached a parliamentary assurance that secret evidence would not be used when assessing the risk of torture on return (page 42);
- In a case before the Parole Board, the Prison Service allegedly urged a witness to give false testimony in open court in order to conceal the source of secret evidence (page 98).
The report, the first comprehensive survey of the use of secret evidence since SIAC was created in 1997, shows how, over the last twelve years, the British traditions of open justice and the right to a fair hearing have increasingly been undermined by the use of secret evidence in closed hearings. It sets out recommendations for the reform of the current law and procedure in order to guarantee that all defendants are able to know the evidence against them.
In relation to the House of Lords judgment, Eric Metcalfe, JUSTICE’s director of human rights policy, said:
The House of Lords judgment marks a turning point. The government can decide to limp on with the use of secret evidence for the sake of ever diminishing returns. Or Parliament can act to end its use once and for all.
Either way, the unfairness of secret evidence is clear.
In relation to JUSTICE’s report on secret evidence, he said:
Twelve years of secret evidence are enough.
Secret evidence is always unreliable, unnecessary, undemocratic and unfair. Because it has never been properly tested, it breeds complacency and false confidence in its results. Secret evidence damages public trust in our courts and in the rule of law itself.
Yesterday evening, I was invited to speak about the DNA database and my experience in getting on and then off it. The event was organised by the Pan African Society Community Forum (PASCF) and happened near Oval. Even with the tube strike starting at the same time as my presentation the room filled up with what looked like more than sixty people.
The black community is disproportionally represented on the National DNA Database (NDNAD). As mentioned in the earlier post Sentenced to genetic probation, figures compiled a few years ago show that 37% of black men have their DNA profile on the database compared with 13% of Asian men and 9% of white men. Data published last year indicate an increase in the number of DNA profiles of black males to 42%. It is estimated that three quarters of young black men aged between 15 and 34 have their DNA profiles on the database. Innocent young black people are far more likely to be on the database than innocent young white people.
Other speakers were Doreen Bishop speaking about her son Ricky Bishop who died in police custody on 2001-11-22; Samantha Rigg-David speaking about her brother Sean Rigg who died in police custody on 2008-08-21; and Minkah who was arrested and charged after enquiring about two white men, who happened to be police officers, questioning a young black man, and who spoke about stop and search and the involvement of the black community in refusing this police violence. The meeting was very well chaired by a kid from the Marcus Garvey Next Generation (MGNG), an organisation for young African people who want to contribute to a unified approach to tackling issues related to young people. It's great to have people of all generations involved in such events. (Doreen, Samantha and Minkah were speaking at the Stop the violence event last month and you can find videos of their speech on Indymedia.)
Every year, usually on the last Saturday of October, the United Families and Friends Campaign (UFFC) organises a silent procession along Whitehall. At last year's event a give away listed the names of 2,533 individuals, whose name was known, who had died since 1969 in the care of the Police, prisons, secure psychiatric units and immigration detention centres. See the list in the post Deaths in custody & Jean Charles de Menezes inquest.
There was great interest in practical measures: what to do to get off the NDNAD, how to raise awareness of all the deaths in custody (the Rigg family is holding a vigil outside Brixton police station every Thursday), how to get more people out at demonstrations (the United Campaign Against Police Violence (UCAPV) will organise a protest at the IPCC on 2009-07-10), etc. It felt like many of the attendees were keen to do more than just spend a Tuesday evening hearing a few speakers; this is the aspect I found most encouraging. Discussions continued well after the end of the formal presentations, and the evening was both productive and very enjoyable. To those who attended and may be reading this post, the website I recommended is ReclaimYourDNA.org.
Either you are with the Home Office or you are against justice
The Home Office remains stubborn in its attempts to hold on to the personal and intimate data of innocents by refusing to delete their DNA profiles from the National DNA Database (NDNAD). It creates policies out of a vacuum, without evidence to support them, and in parallel, tables amendments to give itself powers to push these policies through secondary legislation. This arrogance was exemplified when the Home Office eventually published its consultation on Keeping the right people on the DNA database. Commons Leader Harriet Harman described those critical of the plans as "against justice". In the six months since the European Court of Human Rights' judgement in S and Marper v. UK, the Home Office has been marching on to implement its single-minded agenda.
First on the Home Office agenda was to address the few individual cases, that garnered too much publicity, for which Jacqui Smith had promised to take immediate steps. The day following the European Court judgement, the applicants' lawyer requested the destruction of their fingerprints and DNA samples. The government confirmed in January that the responsible police authority had destroyed them. A just satisfaction award of £35,501.56 was paid, in respect of costs and expenses, to S and Marper. And it took two full months, between the last day of December and early March, for a total of 96 DNA profiles of children under 10 to be removed by 31 police forces (pdf). This had been promised by Jacqui Smith in a speech to the Intellect Trade Association. Approximately 300,000 children 10 to 18-year old still have their DNA profile on the DNA database.
To comply with the European Court ruling, the government must implement general measures to prevent new violations, similar to that which happened to S and Marper, from occurring. In January, the UK provided information to the Committee of Ministers (CoM) of the Council of Europe about how it is going about changing laws and policies to end 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". That information was supposed to be reviewed at the March meeting of the CoM, but was rescheduled to its June meeting. We've asked for this information under the Freedom of Information Act, but the Home Office has been delaying its release.
First time most anyone outside of the Home Office got wind of its intentions was early May when it published the consultation Keeping the right people on the DNA database. Neither the NDNAD Strategy Board, nor the NDNAD Ethics Group were consulted for their informed opinion or even just notified, prior to publication. The consultation "sets out our proposals which will remove the current 'blanket' retention policy and replace it with a retention framework which, in the words of the judgment, will 'discriminate between different kinds of case and for the application of strictly defined storage periods for data'". The Home Secretary is opting to get rid of the blanket indefinite retention for everyone and to replace it with three blankets of six years, 12 years and indefinite retention depending on how innocent you are or whether you are a convicted criminal; plus a few special cases.
Minimum six years of genetic probation
The consultation's proposals include retaining innocent people's DNA profiles and fingerprints for twelve years if they have been accused of a serious violent or sexual offence, or six years for a lesser offence. Children arrested but not convicted, or convicted of less serious offences, would have their DNA profiles retained for six years or until they turn 18*, whichever comes first. The taking of DNA samples and fingerprints would continue to happen at arrest and DNA profiles and fingerprints of anyone convicted of a recordable offence would be retained indefinitely as is the case now for criminals and innocents alike. DNA profiles of those volunteering their DNA would not be added to the database. In all cases the DNA samples, commonly mouth swabs, would be destroyed after a DNA profile has been derived from them.
Profiles already on the DNA database would follow this six/twelve year retention rule. There are currently approximately 350,000 DNA profiles of individuals who are definitely innocent and 500,000 DNA profiles that are not linked to Police National Computer (PNC) records and hence may be that of innocents... or not. The Home Office preferred option would be for the police to manually check each of the profiles they're not really sure about before considering deletion.
"The intended effect of this policy is to ensure the maximum number of detections where a crime scene is matched to an individual on the database thus helping reduce crime and protect the public whilst at the same time ensuring the right to privacy is protected" is the goal set in the impact assessment. To ask us to give up the presumption of innocence, the government must show solid evidence for the need to retain DNA profiles and fingerprints from any innocent when there's no further case or they are acquitted. Steve Bain, ex-member of the Human Genetic Commission and on the NDNAD Strategy Board, is direct: "It's essentially an evidence free zone", adding that the real issue is "how to make [the retention policy] ethically robust and socially acceptable."
What evidence is there that increasing the DNA database size, already containing more than five and half million DNA profiles, with additional DNA profiles of innocents helps to reduce crime? GeneWatch UK has shown 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%". What makes a difference is retention of DNA of crime scenes (pdf). The Home Office said as much in 2005: "the number of matches obtained from the Database (and the likelihood of identifying the person who committed the crime) is 'driven' primarily by the number of crime scene profiles loaded onto the Database" (emphasis in the original). Geneticist and lawyer Brian Costello's research leads him to believe that not only adding DNA profiles of innocents to the database doesn't help catch criminals, but is likely to increase the risk of miscarriage of justice: "If a miscarriage based on an adventitious match has not occurred yet, it appears likely it will occur in the future as the NDNAD grows ever larger."
What is the new evidence the Home Office has found that would convince us to retain DNA profiles of innocents for years? The consultation's impact assessment makes it clear that any claim by ministers that deleting DNA profiles of innocents may prevent crime is an unsubstantiated claim: "It is therefore also not possible to say how many crimes would be prevented under different options." The few anecdotes repeated by ministers to provoke emotional reactions do not support the case for DNA retention of innocents, but the taking of DNA samples at arrest, which is not disputed; (whether this is indeed the right time to take DNA samples is not even discussed). We must look deeper in the documents published by the Home Office.
In search of strong evidence
Even though the Home Office has had many years to prepare in anticipation of the judgement of the European Court and six months since, the consultation and its annexes read as if they have been rushed out. The documents are marred by editing mistakes to the point they look like a very early draft. They are full of inconsistencies, samples used for statistical analysis are extremely small, data is not always sourced and the included research contradicts the proposed plans in several places. Has anyone really bothered to read the consultation before publishing it? A genuine consultative exercise would show more respect to its audience.
One annex is an independent report by Professor Ken Pease of the Jill Dando Institute titled DNA Retention after S and Marper. The data in the text and the tables don't match, but if you put that aside and try to figure out what was likely meant you soon realise that there's little to support the Home Office. First key data is about those re-arrested within three specified periods. Let's skip the fact that the "data underwent substantial and lengthy editing" to exclude irrelevant categories and "on the basis of lack of clarity as to the case outcome". After all this editing, the data appear to come from 532 cases from three samples in June over three consecutive years (either 1994-1996, according to the table, or 2004-2006, according to the text). However, an attentive reader will spot: "Given that data came only from the first of a month, and aware that errors of estimation will be magnified by multiplying the figures to give a monthly total...", so this data is in fact an estimation based on approximately 18 cases (532 divided by the number of days in June) taken over three days at one year interval, or 7, 8 and 3 samples for the respective days. And even among these few cases, one day may have to be discounted as a footnote explains: "The writer was concerned by the smaller number of cases in 2004. His best guess is that the date fell on the day following a Bank Holiday." (This is also a hint indicating that the text is right as May 31st was Spring bank holiday in 2004. This erroneous table is repeated in the main consultation document.)
Moving on, the author comments on a second analysis that is under way but not included in order not to delay publication: "The conclusion anticipated with confidence is that there will be little or no association between the seriousness of the events, ie that the seriousness of the initial offence will not predict the seriousness of subsequent offences. ... Its importance is that a policy of selective deletion is decided upon, based upon the seriousness of the offence leading to the initial offence, it will lose most of its potential in downstream detection." That conclusion directly undermines the Home Office's proposed plans for six and twelve years retention periods.
Based on a New York State study and illustrated with more local anecdotes (such as that of the Yorkshire Ripper), the author points out that "They found, regardless of the severity of an individual’s first adult offence a high degree of versatility for all but a minority of offenders". If you were to accept this analysis, then to ensure this high degree of versatility, an individual who committed a minor offence is likely to go on to commit a violent one and vice versa. Barring the fact that we're now talking about criminals, such a conclusion would favour retaining DNA for a shorter time for those associated with violent crimes!
The author admits that the data currently available is very limited, "There remains an outstanding research programme which would clarify the issues surrounding the S & Marper judgement". We wrote to Professor Ken Pease to enquire about the availability of a corrected version of his report, but are still awaiting a response.
Rushed out to be pushed without scrutiny
A further sign this consultation was rushed out is that the proposed plans (published in the main consultation document) are not consistent with the preferred option in the impact assessment (published in the annex). The impact assessment recommend destruction of all fingerprints after 15 years while, as explained earlier, the consultation recommends destruction of the fingerprints at the same time as for the DNA profiles. The different retention periods for fingerprints and DNA profiles is one of the five points Chief Economist John Elliott draws the reader's attention to in his examination of the impact assessment. So it appears he was not informed of the change of mind of the Home Office between when the impact assessment was written and the time the proposed plans were finalised. John Elliott does comment on the rush in three of his other points: "The associated costs are likely to be significant, but there has not been time to quantify them", "If deletion is not to be immediate, a retention period must be set. The decision to opt for 6 years is likely to receive considerable scrutiny but is based on only limited evidence. Ideally a fuller consideration of different retention periods would have been helpful but I accept this was not possible in the time available" and "The need to complete this work to a very short time table means that the modelling has not captured all costs and benefits as completely as I would ideally like to have seen. There may be a need to revisit this assessment before a final decision is made."
The costs and benefits model, in the impact assessment, is constructed on a tower of "key probabilities and assumptions", and some of the listed probabilities are misleading. For instance "The probability of committing an offence following an arrest, but no further action, is the same as the probability of committing and [sic] offence following conviction. The probability of this is 40%9". Note 9 lists the source for this statistics: Re-offending of adults 2006 cohort. The data in this report, from the Ministry of Justice, is about "the reoffending of adults released from custody or starting a community sentence", i.e., it has nothing to do with those offending for the first time after an earlier arrest. Interestingly, this report also includes the following analysis: "On average, offenders took in the 2006 cohort 119.7 days to reoffend (in 2000 the same value was 114.7 days). Offenders convicted of theft took the shortest number of days to reoffend for both 2000 and 2006, whilst in 2006 offenders convicted of robbery took the longest number of days to reoffend." The longest line in the figure showing the average number of days before re-offending took place, for those who re-offend, by index offence group is approximately 170 days.
Average time to next offence
This report establishes that average time to re-offend, for convicted criminals, is three months at one end of the spectrum and less than six months at the other. On one hand the Ministry of Justice tells us that most re-offending happens in six months, and on the other hand, the Home Office is asking us to retain DNA profiles of innocents for six to twelve years (and indefinitely for criminals)!
Nothing in the proposed measures addresses the racial bias in the DNA database. Figures compiled a few years ago, using Home Office statistics and census data, showed that 37% of black men have their DNA profile on the database compared with 13% of Asian men and 9% of white men. Data published last year indicate an increase in the number of DNA profiles of black males to 42%. It is estimated that three quarters of young black men aged between 15 and 34 have their DNA profiles on the database. Innocent young black people are far more likely to be on the database than innocent young white people.
Perhaps, the Home Office realises how weak its arguments are as it is keen on avoiding parliamentary scrutiny. Several MPs have repeatedly demanded that basic protections regarding personal data, the DNA database and its oversight be embodied in statute after been given enough Parliamentary time. The Home Office has instead pushed through Parliament clauses 96 to 98 of the Policing and Crime Bill, which is now reaching Committee stage in the Lords. These give a blank cheque to the Secretary of State to implement by statutory instruments changes to the retention, use and destruction of DNA profiles and samples, fingerprints, footwear prints and photographs. A draft statutory instrument (zip) to implement the regulations proposed in the consultation has already been published. Only a week after the consultation. Will the Home Office read any response to its consultation?
Governance and additional powers
Another issue raised by the European Court is the "limited possibilities ... to have the data removed from the nationwide database [and] ... no provision for independent review of the justification for the retention according to defined criteria." As per the existing exceptional case procedure**, those with their DNA profile on the NDNAD would still be able to request deletion by writing to the chief constable of the force that took their DNA. What's proposed is for the procedure to be renamed "application process for record deletion" and for the grounds to be codified in regulations. Listed examples include wrongful arrest, mistaken identity, and where it turns out that no crime has been committed.
A likely aim for this change is to create a fairer process, as had been requested by the NDNAD Ethics Group. The Association of Chief Police Officers (ACPO) Criminal Records Office (with the recursive acronym of ACRO) has been tasked to create processes that would improve achieve some level of national consistency when considering the requests for removal. Chief constables would remain the owners of the DNA profiles they contribute to the NDNAD, but ACRO, a private company, would at least strengthen its existing consulting role, if not acquiring more power. The cost of increased consistency would be a loss of transparency and scrutiny.
The consultation details plans to have a greater mix of operational and independent members on the NDNAD Strategy Board and an independent monitoring structure on implementation of the regulations. However this latter structure will report directly to ministers. That the Home Office did not consult the NDNAD Strategy Board or the NDNAD Ethics Group when preparing its plans for the future of the DNA database as embodied in the consultation does not give confidence that any new structure or playing musical chairs in one of the existing advisory structure would have any more influence.
Additional powers sought for are to take a sample and fingerprints post arrest if the initial data is not of sufficient quality, post conviction of persons who were not sampled or fingerprinted during the investigation or court process, and from UK nationals and UK residents convicted of violent or sexual offences overseas. These additional powers are the only measures where the government is looking for new primary legislation and hence that would be subject to full Parliamentary scrutiny.
Jacqui Smith, in her speech to the Intellect Trade Association, explained the outcome she was looking for: "We need to ensure compliance with the [ECtHR] Judgment whilst ensuring that we meet the difficult job of balancing rights against protection". Professor Sir Alec Jeffreys, who discovered DNA profiling and invented its forensic use, finds the proposed plans do not achieve this outcome : "This seems to be about as minimal a response to the European court of human rights judgment as one could conceive. There is a presumption not of innocence but of future guilt here … which I find very disturbing indeed."
The judges in the European Court noted "Weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants' private data compared to that of other unconvicted people." The current proposal to retain DNA profiles of innocents who happened to have been arrested for six or twelve years does treat them differently and further stigmatise them. The Committee of Ministers will review the situation this month, you have until August 7th to respond to the consultation, and the government has six more months to show substantial progress towards compliance with the ruling against it.
Notes:
* Note that children convicted of a minor crime days before their eighteen's birthday would be on the NDNAD only for a very short time. If this aspect of the proposals is implemented we do not condone experimenting with this.
** The European Court's judgement is not directly binding on the police forces. Until the law or police guidelines change, the only way to get off the NDNAD is via a decision of a chief constable. A new website, Reclaim your DNA, was launched by GeneWatch UK, No2ID, Open Rights Group and Black Mental Health UK. It offers a step-by-step guide to innocents on the NDNAD as to what they need to do to request to be taken off this crime-related intelligence database and ensure that personal genetic information samples are destroyed.
(Two years ago I was one of 64 who asked the Metropolitan Police to have their DNA profiles purged and DNA samples destroyed. My request was one of 18 that were deemed exceptional enough to be granted that year.)
The Terrorism Act of 2000 dramatically increased police powers to stop and search. David Mery gives the lowdown
You are going about your business, when suddenly you are approached by police officers. After identifying themselves, they announce, ‘We are stopping you under section 44 of the Terrorism Act.’ Your first reaction is why me? What have I done? But unlike other stop and search powers, officers don’t need any reasonable grounds for suspicion. In fact, if they do suspect you, then they should use other powers. They will ask you your name and address, what you are doing and where you are going – you don’t have to answer, but they will likely exceed their powers by looking at any identifying documents you’re carrying. They can ask you to take off outer clothing. You have to submit to the search.
According to the police’s advice on stop and search in relation to terrorism, they ‘create a hostile environment for terrorists to operate in and can help to deter, disrupt and detect terrorist activity’. These searches must take place in authorised areas, but there has been a continuous succession of authorisations for the whole of London since February 2001. It is difficult to know exactly the period and location of such authorisations as the Home Office has fought related freedom of information requests.
Section 44 can affect anyone, but some people are affected more than others. Government figures released in May show that since 2007 the number of searches under the powers has risen by 322 per cent for black people, 277 per cent for Asian people, but just 185 per cent for white people. Protesters have also suffered. Demonstrations at Fairford airbase, the DSEi arms fair in London’s docklands and the Heathrow Climate Camp provide glaring examples of abuses of section 44.
Standard operating procedures explain: ‘The choice of persons stopped should normally be based on location, time, intelligence or behaviour [including] unusual actions or presence near a vulnerable location. The level of behaviour may not amount to “reasonable grounds” and may be not much more than intuition on behalf of the officer. Any manner of profiling is undesirable where persons from a particular group are targeted by officers without existence of additional credible evidence.’
Between 2001 and 2004, 205,000 section 44 stop and searches were conducted in England and Wales. These resulted in 2,571 arrests – representing 1.25 per cent of all searches. Available data gives no indication as to how many of these arrests were in connection with terrorism, how many led to charges being brought, or how many convictions followed. Liberty claims that only six in every 10,000 people stopped are arrested, and that nobody has ever been arrested for terror offences after a stop and search.
Reporting in 2005 on the Terrorism Act 2000, Lord Carlisle, the independent reviewer of the Act, found that while ‘fairly extensive use [of section 44 powers] is understandable ... they should be used sparingly [as they involve] a substantial encroachment into the reasonable expectation of the public at large that they will only face police intervention in their lives (even when protesters) if there is reasonable suspicion that they will commit a crime.’
Fears over their diminishing authority have recently led the Metropolitan Police to claim they will be reducing their use of section 44. However, the powers will remain in place around major landmarks, train stations and crowded public spaces – essentially no change.
Turning the tide on repressive anti-terror measures will be a long process, but on encountering terror searches it’s important to challenge the police over their actions. You can’t legally avoid being searched if it’s requested, but refuse to give the police your details – on protests section 44 searches often play the supplementary role of data-gathering.
You are entitled to a receipt for your search outlining the where, why, when and who of the search. Officers often attempt to evade this responsibility – don’t let them! These are key legal documents for official complaints about police conduct during the search, or complaints made by political organisations about the over-use of stop and search powers.
If the police refuse you a form, try your own data gathering. If they’re wearing them, note down the officers’ shoulder numbers. Film and photograph them, and note the time and place. If there are any witnesses, get their contact details. Make a complaint – this can force a review if enough people do it, and may at least make the officers in question think twice in future. Complaints can be taken to your local police station, Citizens Advice Bureau, the Independent Police Complaints Commission, the Commission for Racial Equality, or a solicitor.
Read the rest of this issue of Red Pepper...
Brian Costello's Are DNA ‘cold hits’ resulting in miscarriages? is an analysis into whether false DNA matches will lead to miscarriages of justice, if they have not done so already. He questions whether chance DNA matches are occurring but are not being recognised.
...
Due to the current size of the NDNAD [National DNA Database], full profile chance matches (“adventitious matches”) are now actually expected to have occurred. A truly staggering 2.5 trillion odd comparisons have been made: 500,000 (Crime Scene Samples) x 5,000,000 (Subject Samples) = 2,500,000,000,000. Under ideal conditions, a full SGM+ profile is generally predicted to occur with a frequency of 1 in 1 trillion (although a figure of 1 in 1 billion is routinely given in court as it is perceived to be highly conservative in favour of the defence). With the NDNAD at its current size, and taking the 1 in 1 trillion chance match figure, a simple mathematical analysis indicates that two full SGM+ matches are expected to have occurred between a Crime Scene Sample and an unconnected Subject Sample. Put another way, it is expected that two suspects have been wrongly identified as linked to a crime scene by a false match.
Unfortunately, a simple mathematical analysis will not give the true picture. Two factors will increase the probability of adventitious matches: firstly, the condition of crime scene samples may lead to incomplete profiles; and secondly, individuals who are related are more likely to share the same profile than unrelated individuals.
A crime scene sample can be uploaded onto the NDNAD where results have been generated at only eight out of 10 loci (loci are DNA analysis sites), and a speculative search can be conducted where only six of 10 loci have produced results. Where results are obtained from less than the full 10 loci, the random match probability is reduced; it is more likely that a match will occur by chance alone. The comparison of incomplete profiles suggests that the prediction of only two adventitious matches could be a significant underestimate. Depending on the number of incomplete Crime Scene Samples uploaded, the number of expected adventitious matches could easily run into double digits. It would also appear that the problem of adventitious matches is set to increase with the expansion of low copy or low template DNA tests (“LtDNA”). LtDNA testing frequently produces incomplete profiles. If these incomplete profiles are uploaded to the NDNAD, or speculatively searched against it, the probability of obtaining adventitious matches will increase. Even more concerning is the fact that in a LtDNA test the entire DNA sample collected from a crime scene can be consumed, preventing further testing that would exonerate a person wrongly linked by an adventitious match.
People who are related share genetic material derived from their common ancestors. The closer the relationship the greater the chance their DNA profiles will match. In court, this would be expressed by a reduced match probability for a scenario that a relative committed the crime (e.g. match probability 1 in 1 billion for an unrelated individual, but one in several hundred thousand for a full sibling). It is a known fact that the NDNAD contains the profiles of a large number of related individuals. However, due to the level of duplication on the database – currently estimated to be around 13% of all samples – it is quite possible that two related (or unrelated) individuals share a full SGM+ profile, but the adventitious match has not been identified as it has incorrectly been attributed to duplication.
...
Given that further adventitious matches have been predicted, but none have been identified, there must be real concern that an innocent person has been wrongly convicted on the basis of an adventitious match; perhaps because they were not prepared to identify a family member and so entered a guilty plea, or perhaps because unlike Mr Easton they did not have compelling evidence of their innocence. If a miscarriage based on an adventitious match has not occurred yet, it appears likely it will occur in the future as the NDNAD grows ever larger. Greater use of the LtDNA technique will further increase the probability of such a miscarriage.
Brian Costello is completing a third six period of pupillage at One Inner Temple Lane and as a result of his concern is researching the discrepancy between predicted and identified adventitious matches. As part of that research he is interested in hearing from any defence practitioners who have:
If that's your case, then get in touch with him at Brian.Costello@1itl.com.
(Hat tip: Are DNA ‘cold hits’ resulting in miscarriages? was published in the excellent CrimeLine newsletter.)
Mobile phone tracking
The cost of having your movements tracked by your university? A free iPhone. The School of Social Informatics at Tokyo-based university Aoyama Gakuin is giving students free iPhones that will be 'used as a tracking device with which the university can control if its students are physically on campus or not (the main goal is to prevent cheating during roll calls).'
Last month I wrote about the mobile phone as self-inflicted surveillance. If you don't carry this voluntary electronic tag, then you must have something to hide. Frank Stajano, a senior lecturer at in the Computer Laboratory at University of Cambridge who was involved with developing the Active Badge system at ORL twenty years ago has just written an article on location privacy issues.
Data remanence and information accountabilityThe security research team in the Computer Laboratory at University of Cambridge ran an experiment to test what happens when data deleted from the cloud. They 'found that most [of 16 social-networking, blogging, and photo-sharing web sites] failed to remove image files from their photo servers after they were deleted from the main web site. It’s often feared that once data is uploaded into “the cloud,” it’s impossible to tell how many backup copies may exist and where, and this provides clear proof that content delivery networks are a major problem for data remanence.' The issue of data take-down is being looked into by the W3C Social Web Incubator Group.
Data take-down is only one tactic addressing a larger issue, and one that is not working well as the Cambridge research has shown. An interesting and more general approach is one based on information accountability. See my post Forgetting. Consequences. Bruce Schneier also posted a useful essay on Privacy in the Age of Persistence.
Earlier this week... Making location data an integral part of user experience and having user's data reside in the cloud, with the mobile device acting as a cache, were two key directions participants to the Mobile User Experience (MEX09) conference saw the industry moving to. The mobile industry has to take much more responsibility for the dataveillance and data remanence scenarios it is creating.
Jacqui Smith pre-announced in The Observer, she will publish this week the government's plans for the destruction of the DNA profiles and/or DNA samples of innocents. Details are currently lacking. A first welcomed step in complying the European Court of Human Right's ruling would be the bulk destruction of the DNA profiles, DNA samples, fingerprints and associated PNC records of innocents.
Tomorrow, Thursday, at 8.1015am I'll be interviewed by Eamonn
Holmes on Sky News Sunrise
about my experience
getting off the National DNA Database (NDNAD).
Update 1 - From press reports, the Home Office plans include:
(The consultation document has still not yet been published.)
Update 2 - I arrived at the Westminster studio early. This allowed time for a recorded interview (I don't think this interview was used), with Joey Jones, about my views on the NDNAD and the announced changes. The destruction of the DNA samples is a positive step, but the retention of DNA of innocents for years is not acceptable.
While I wait, Vernon Coaker shows up with three minders. Two of them write down what he says when he's on air. I make a mental note to debunk some of his more outrageous claims such, e.g., the large size of the NDNAD helps with crime detection. The detection rate remained about the same when the number of individual profiles on the database doubled. What makes a big difference is the number of DNA profiles of crime scenes, not of individuals. (See Ten myths about the NDNAD for more myths debunking.) A few minutes after the quartet leaves Sky News, one of the minder comes back to pick up a document she had forgotten on a table; unfortunately no journalist had noticed this possibly interesting material!
Then it's eventually my turn. The set up is very disconcerting as there's no one else in the studio and the only feedback is audio. I sit in a fixed chair and am told to look at a spot which is between the camera lens and a red light situated above it. Two strong lights are directed at whoever is in the chair, hence the regular blinking. I listen to the previous segment while staring at this dark spot behind the lights and above the camera. A voice introduces itself as the producer and asks me if I hear the audio feedback fine and eventually it all starts. At no point can I see what image is broadcast or the reaction of the interviewer. Joey Jones told me earlier it was likely to be Eamonn Holmes, but not being that familiar with his voice I do not really know who's interviewing me.
I had prepared some points I wanted to talk about. Some I mentioned in the recorded interview (why such a large database, because this database state is keen on collecting as much data as it can on us; it is a criminal intelligence database for the purpose of crime detection), many others I didn't (databases have mistakes, are accessed illegally, get forgotten on trains, etc. DNA can be used to identify children and parents as well, the samples and profiles are used for research without consent, etc. and some practical advice: the current system of the 'exceptional procedure', that if you're on the NDNAD you should go to the new Reclaim your DNA website, and in any case you must respond to this consultation.) As Eamonn Holmes was under the impression that my DNA profile was still on the NDNAD, I explained several of the actions I had to take in the two years it took me to manage to eventually successfully reclaim my DNA. I had the impression we had just started, but several minutes had already gone and it was all over! So I had the time for much less than I was hoping to communicate. Click on either of the two pictures to download the video (16.5 MB), if you must.
On my way out, I bumped into Helen Wallace of GeneWatch UK, the leading UK organisation providing independent information on genetic technologies, on her way to do some interviews. Read GeneWatch's reaction to the government plans at Home Office drags its feet on DNA database removals.
I wonder who decides on the captions identifying people on TV? I didn't think 'Former suspect' was neutral enough when this was used in an earlier appearance. This time, the caption changed through the interview. It started with 'Mistaken suspect' and finished with 'DNA campaigner'. The former is obviously wrong and is likely why it was changed, but the latter is still a shortcut: DNA is not a campaign. I am campaigning, with many others, to ensure that innocents are no longer treated as 'yet to be convicted' and that means full compliance with the ECtHR ruling condemning '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'.
Update 3 - The consultation Keeping the right people on the DNA database has now been published. It closes on 2009-09-07. With more than five million profiles on the NDNAD, about one in ten persons in the UK, either you're on it or you likely know someone who is. After a critical reading of the documents, do respond to voice your views. For reliable independent information on most aspects of the NDNAD, check GeneWatch UK.
Until the consultation closes and the government decides what it will do, hopefully more in line with the spirit of the unanimous ruling of the ECtHR, the 'exceptional' rule still apply. If you're innocent and on the NDNAD, write to the chief constable of the force that arrested you to reclaim your DNA.
First published 2009-05-06; last updated 2009-05-07.
So you have not been convicted or cautioned for any crime - you are innocent - but your DNA profile is still held on the National DNA Database (NDNAD) and a commercial lab is storing a sample of your DNA. You need to get off this crime-related intelligence database and ensure that your personal genetic information sample is destroyed.
Maybe, you read the articles Don't delay: Delete your DNA today and Three months on, you still can't get off the DNA database, wanted to write to reclaim your DNA but didn't really know how to get started? The new Reclaim your DNA, website launched by GeneWatch UK, No2ID, Open Rights Group and Black Mental Health UK guides you step-by-step through the process:
Innocent urged to reclaim their DNA from reluctant Government
Launched today, a new ‘Reclaim your DNA’ website helps innocent people contact the police to seek destruction of their DNA and database records. The coalition of rights groups supporting it accuses the Government of dragging its feet in removing innocent people from the National DNA Database. The European Court of Human Rights ruled last December that the retention of innocent people’s DNA and fingerprints is unlawful.
Dr Helen Wallace, Director of GeneWatch UK, said: “If Scotland can remove innocent people from the DNA database, why can’t this happen everywhere? It’s time for people in the rest of Britain to demand their rights”.
Phil Booth, Co-ordinator of NO2ID, said: “The principle is simple and fair. When charges are dropped, DNA samples should be destroyed. No charge, no DNA – stop treating the innocent as criminal suspects”.
Jim Killock, Executive Director of Open Rights Group, said: “We have human rights: we need to exercise them if we want to successfully defend them. The digital age means data is constantly easier to collect, store, and analyse, so when government goes too far, it is vital citizens act to defend their right to privacy”.
Matilda MacAttram, Director of Black Mental Health UK, said: “The fact that three quarters of Britain’s young black men and over half of black Londoners are on it clearly shows that the DNA database has criminalised a whole community, whilst most real criminals are still not on it. Black Mental Health UK welcomes this new website. It will enable thousands of innocent people who are currently being criminalised by a system that clearly doesn’t work to get their genetic data back.”
The website also provides advice if you are not sure if the police have your DNA, you were cautioned or convicted of a minor offence, or you gave your DNA to the police voluntarily.
Act now to reclaim your DNA and/or show your disagreement with this unlawful government policy!
Dinah Rose QC is a barrister with direct experience of working with the Special Immigration Appeals Commission (SIAC), which assesses deportation cases, often taking evidence in closed sessions. At a meeting calling for an end to secret evidence, she told this anecdote:
I can still recall my deep feeling of shame when I heard the appellant ask the judge the question: why are you sending me to prison? To which the judge replied: I cannot tell you that. I could not believe that I was witnessing such an event in a British court. I could not believe that nobody protested or made a fuss. They simply took him to jail, without any explanation at all.
Are you shocked that this happens in this country? Don't you feel the urgent need to make a fuss?
As an outcome of this meeting, an Early Day Motion (EDM 1308) has been tabled by Diane Abbott to call on the Government to bring about an independent review into the use of secret evidence in UK courts. If you care about the fundamental right of anyone to receive a fair and open hearing, the right not to be imprisoned or subjected to draconian control orders or bail conditions based on secret evidence, the rule of law and habeas corpus then write to your MP to ask him or her to sign this EDM:
That this House believes the use of secret evidence in UK courts is fundamentally wrong;
notes that secret evidence is evidence held by the Home Office against an individual that neither the individual, nor their legal representation, may see;
further notes that in recent cases secret evidence has been used to detain individuals in prison for up to three years without charge or trial;
further notes that these individuals may also be put under a control order or severe bail conditions, greatly limiting their movements and ability to lead a healthy life;
believes that the use of secret evidence by the state against individuals runs entirely contrary to Habeas Corpus;
recognises the European Court of Human Rights' ruling that detaining individuals on the basis of secret evidence is unlawful because detainees had not been able to effectively challenge the allegations against them;
and calls on the Government to begin an immediate independent review into the use of evidence that is not ever heard by the defendant or their lawyer but which is used to justify indefinite detention, severe bail conditions or control orders.
On Monday March 30, in a committee room in the House of Commons, Diane Abbott MP chaired a meeting entitled, 'Britain’s Guantánamo? The use of secret evidence and evidence based on torture in the UK courts, to discuss the stories of some of the men held as 'terror suspects' on the basis of secret evidence, and to work out how to persuade the government to change its policies. Andy Worthington has done a fantastic job reporting on this meeting. Below are links to the relevant posts. I recommend you set aside some time and read them all.
Twelve suspects were arrested around Northwest England on 2009-04-08. They were accused of being part of a 'major terrorist plot', as Gordon Brown called it. The police have released the 12 suspects without charge. Some of them were subsequently served with deportation orders and are in the custody of the UK Border Agency. This has all the elements of propaganda: much hyped arrests, no bomb making equipment found at all, followed by all the arrestees released with none being charged.
They are still described in the media as 'suspects', 'terror suspects', 'terror raid men', etc., but they are all innocent. So a more appropriate description would be 'innocent men' or 'students'. Even GMP Chief Constable Peter Fahy conceded this point: 'We can only operate to one standard, and that standard is that people are innocent until they are proved guilty.'
Soon they're likely to find themselves described as 'former suspect'. Here's what I wrote at the time this expression was used in captions to describe me:
In both the Sky News Today and the Politics Show interviews, the caption introduced me as 'Former Suspect'. Is that more appropriate than say ‘London resident’ or ‘Tried to take the tube’? Such captions have to be short, but this shortening of what is really ‘Formerly considered by the Police to present a suspicious behaviour’ can give the impression of a universality. This would erroneous. Let me know how you react to this label.
Sir Ken Jones, ACPO president, said this Sunday on police public order tactics:
Unlike many other countries we do not have standing "riot police" and using this term does not aid understanding. In policing demonstrations and the like we need to mobilize hundreds, sometimes thousands, of police officers from other work. The so called "riot police" we see on TV are mostly everyday officers from our neighborhoods and communities who would rather be somewhere else. Our officers are trained and deployed according to what works best to deliver people's democratic rights against the rights and needs of the majority who are not involved. It has to be said that there are many who get involved in street protest who are intent on creating riots, damaging property and attacking our officers. The presence of such groups, well organised and determined, is sadly an increasing feature of public protest across Europe. They pose a very real threat to legitimate protestors, public and police. Police officers are only human but know that their standards of behavior in all situations must be beyond reproach, no matter what provocation is offered. Those who cross the line must be dealt with. However there is a need to approach this objectively and look at the issue from all perspectives. And those who do not cross the line, the vast and overwhelming majority, deserve our support.
Philip Zimbardo, infamous for his 1971 Stanford Prison Experiment, defined the Lucifer Effect as 'the point in time when an ordinary, normal person first crosses the boundary between good and evil to engage in an evil action'. In 2004 Zimbardo served as an expert witness for the defence in one of the Abu Ghraib court-marshal hearings. Here's an extract from the review of his book in Discover Magazine:
Situational forces mount in power with the introduction of uniforms, costumes, and masks, all disguises of one’s usual appearance that promote anonymity and reduce personal accountability. When people feel anonymous in a situation, as if no one is aware of their true identity (and thus that no one probably cares), they can more easily be induced to behave in antisocial ways.
In both cases from the G20 demonstrations independently investigated by the IPCC - the worst cases of identified police brutality - the police officers involved were not wearing any visible identification. The officer who hit and pushed Ian Tomlinson also wore a balaclava. These are apparently used to protect officers when there's a risk of fire; in that instance there was no such risk. The balaclava just made the officer more anonymous.
Demonstrators are dehumanised, Sir Ken Jones described them, in the extract above, as groups ('many', 'such groups') with no reference at all as to where they come from or why they may demonstrate or what for. Except for one mention of 'legitimate protestors', the rest of the text is aligned with the Met's building up of a 'summer of rage'. The contrast with how he describes the police is telling: 'police officers', 'everyday officers', 'officers', 'human', 'those'.
It's not just some officers being out control in the heat of the moment. The whole system protects such behaviour and promotes the impression that the police are above the law. Crucial CCTV footage is missing (or maybe not), no police officers are convicted for deaths in custody... The last time a police officer was convicted following a death in custody was for assault charges in 1971. A long way from the Nine principles of policing established by Sir Robert Peels.
If Zimbardo's theory is valid, the officers being investigated by the IPCC are not just bad apples but representative of a systemic problem that shows the need for accountability at all levels including senior officers.
(And why does Sir Ken Jones uses American spelling in this ACPO press release?)
The new United Campaign Against Police Violence is organising a public rally in Friends Meeting House on Euston Road at 7:00pm on Tuesday 5 May on:
A national demonstration is planned by the campaign for Saturday 23 May.
Commander Simon Foy, head of the Metropolitan Police's Homicide and Serious Crime Command, Specialist Crime Directorate wrote an appalling comment piece titled DNA database keeps us safe in The Guardian. It includes this paragraph:
The decision about whether to remove the DNA of those who are yet to be convicted of an offence will rightly be made by politicians. In the past the police have made the case to government for retaining these samples and they have agreed, but the EU case may change that. Obviously Jeffrey's knowledge and grasp of the scientific details surpasses mine, I'm just an investigator but the reality for me is the more people on the database, the more effective our investigation will be. [Emphasis added]
Letting pass that it wasn't a EU (in Brussels) case but a European Court of Human Rights (in Strasbourg) judgement, 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 [...] 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.' [Emphasis added] That adding more profiles of individuals on the database helps to solve more crime has been debunked by GeneWatch UK.
Commander Simon Foy is writing about individuals who have been suspected and hence arrested but not convicted of any offences - either because no further action was taken or because they were acquitted after having been charged. These are individuals who are innocents.
The rest of the article is poor as well, but that someone of the rank of Commander can condemn innocents as 'yet to be convicted' is really crass. This demonstrates that in the eyes of the police the National DNA Database (NDNAD) is a crime-related intelligence database.
As early as February, Met's Superintendent David Hartshorn was extolling that the 'Police are preparing for a "summer of rage"'. Predicted highlights included the G20 Summit: Xmas coming early for activists, and industrial disputes in reaction to the downturn in the economy. That gave plenty of time for the Police to ensure they were fully prepared for the - mostly peaceful - demonstrations and climate camp scheduled for April 1st.
The police, and
the Independent Police Complaints Commission (IPCC), know the importance
of video footage for evidential use. They already went through much controversy
about missing
CCTV footage in Stockwell tube station at the scene of
the shooting of Jean Charles de Menezes by a police officer.
(In my case,
CCTV footage was lost because no police officer actually requested it
from Transport for London.)
That's why the Police promotes 'a few simple rules to ensure that CCTV is not rendered useless' (image on the right taken from this campaign). And that's also a justification for the police using their own photographers and videographers, the Forward Intelligence Team (FIT), as was exemplified at the previous climate camp in Kingsnorth.
In light of the above, it could have been expected that as part of its preparation, the police would have checked that all the CCTV cameras in the City of London were in good order. As soon as incidents had been known to happen the relevant footage would have been secured.
Witnesses rapidly came forward about police brutality against peaceful protesters and about the assault on Ian Tomlinson. The IPCC has already received 120 complaints relating to police actions at the G20 demonstrations. However, key CCTV footage is still lacking.
• 2009-04-01 During the G20 protests in the City of London, Ian Tomlinson, a newspaper vendor, collapses in Cornhill. He is pronounced dead at the hospital. He had been assaulted by a police officer minutes before collapsing.
• 2009-04-02 The IPCC releases its first statement: in which it states it 'will be assessing the circumstances [and] will be examining CCTV and attending the post-mortem this afternoon, as is usual in cases of this nature.' Reports from witnesses start appearing; they are consistent in how the protesters went to help Mr Tomlinson.
• 2009-04-03 The Guardian contacts City of London police - tasked with conducting the investigation into Ian Tomlinson's death on behalf of the IPCC - and says it has obtained photographs of him lying on the pavement at the feet of riot police. There was no evidence he was involved in altercations with the police.
• 2009-04-04 Witnesses provide statements to the IPCC that Ian Tomlinson was assaulted by riot police shortly before he collapsed. A post-mortem examination finds he suffered a heart attack.
• 2009-04-06 The IPCC justifies its decision of tasking an investigation 'into the circumstances of police contact with Ian Tomlinson' to the City of London Police. The IPCC will only manage investigation. IPCC Commissioner for London Deborah Glass said:
Just after 7pm on 1 April, Mr Tomlinson can be seen on CCTV walking up King William Street and approaching a police cordon opposite the Bank of England. It is believed he wanted to get through the cordon to continue his walk home from work. Police officers refused to let him through.
A short time later, Mr Tomlinson can be seen on CCTV walking around the corner into Royal Exchange Passage. A number of witnesses have described seeing him there, getting caught up in a crowd and being pushed back by police officers. This is the aspect of the incident that the IPCC is now investigating.
Minutes later he is seen on CCTV walking back onto Cornhill from Royal Exchange Passage.
Mr Tomlinson walks for about three more minutes, before collapsing on Cornhill. The CCTV shows that Mr Tomlinson was not trapped inside a police cordon at any stage.
Several members of the public state that they tried to help Mr Tomlinson. Others reported the incident to nearby police officers. CCTV shows police officers forming a cordon around him near a group of protesters so that the police medics could give first aid.
They then carried Mr Tomlinson on a stretcher through the Cornhill / Birchin Lane cordon and continued first aid. An ambulance then arrived and he was taken to hospital, but was pronounced dead on arrival.
Witness Appeal
Commissioner Deborah Glass continued: “The investigation is continuing to look through CCTV footage to see whether the incident inside Royal Exchange Passage has been captured and we already have a number of witness accounts from the area. However, I would ask anyone else who saw Mr Tomlinson at about 7.20 p.m. or who may have taken a photo of him around that time to contact us so that we can build up a full picture of what happened.
• 2009-04-07 The Guardian publishes on its website amateur video footage it received from a fund manager from New York that clearly shows Ian Tomlinson was pushed to the floor by a riot officer. This officer is seen with a baton. An IPCC investigator and a City of London officer visiting the Guardian's offices to be handed a dossier of evidence asked that for the video to be removed from the website.
The IPCC states '[it] has been made aware of the footage broadcast on a national newspaper's website. We are now attempting to recover this evidence. We will be assessing this along with the other statements and photographs that have already been submitted.'
• 2009-04-08 The IPCC confirms it has 'recovered video footage from a national newspaper last night. We are now in the process of analysing it, along with the other evidence we have obtained on the case.'
Channel 4 News publishes new footage that shows the moment a policeman hit Ian Tomlinson with a baton before pushing him (the footage was recovered from a camera that was broken in an incident).
The IPCC reverses its decision to allow City police to investigate the death and eventually decides 'to independently investigate the alleged assault by police on Ian Tomlinson shortly before his death. The investigation will also look into whether that contact may have contributed to his death.'
IPCC investigators and City of London Police, under IPCC direction, examined CCTV, statements and police records and spoke to independent witnesses. [...]
Yesterday evening, the IPCC was made aware of some footage of the incident running on a national newspaper's website. This was the first time we were made aware of the footage. An IPCC investigator immediately contacted the newspaper and collected the footage from them last night.
This morning, IPCC investigators have been analysing that footage and, in light of this new evidence, a decision has been taken that this investigation will now be fully independent. This means that the IPCC will now use its own full team of investigators. To ensure that there is no loss of effectiveness, some specialist resources from City of London police will continue to be used to carry out forensic and analytical research for our investigation.
Several police officers, including the officer who struck and pushed Ian Tomlinson have come forward. He apparently came forward after recognising himself on the video. In the group of police officers present during the assault on Ian Tomlinson, the riot officers were apparently from the Met and the dog handlers from the City of London police. He is from the Metropolitan Police’s Territorial Support Group (TSG). He was wearing a balaclava and no visible collar number.
• 2009-04-09 Nick Hardwick, chairman of the IPCC, tells Channel 4 News: 'We don't have CCTV footage of the incident... there is no CCTV footage, there were no cameras in the location where he was assaulted.'
The IPCC later that day speaks to More 4 News to confirm Hardwick's comment, by saying that the CCTV cameras overlooking the incident were not working.
The IPCC confirms that 'we now have the details of the Metropolitan Police officer who we believe appears in the footage we recovered last night, and who appears to make contact with Ian Tomlinson.'
• 2009-04-14 The IPCC release the following clarification on CCTV:
On Thursday 9th April 2009 Nick Hardwick, Chair of the IPCC went on to Channel 4 news – just 24 hours after the IPCC independently took over the investigation in to circumstances surrounding Ian Tomlinson’s death.
During the live interview he said - "We don't have CCTV footage of the incident... there is no CCTV footage, there were no cameras in the location where he was assaulted."
At this point Mr Hardwick believed that he was correct in this assertion– we now know this may not be accurate.
There are cameras in the surrounding area.
From the outset it has been a main line of our enquiry to recover all CCTV from the Corporation of London and from all private premises in the area. This work is ongoing and involves many hours of viewing and detailed analysis.
IPCC Commissioner and deputy chair Deborah Glass said “We continue to appeal for more information, including any other video footage. Clearly there were a lot of people in the area when this incident happened and we still need people to contact us with any information or images they have of Mr Tomlinson.”
Anybody who saw Mr Tomlinson in Royal Exchange Square is asked to contact the IPCC on 0800-096 9071 or email Tomlinson@ipcc.gov.uk.
The City of London police suddenly becomes interested in private CCTV footage and sends an email to businesses (via El Reg):
The City of London Police are investigating the G20 Protests on 1st April 2009, under Operation Princess. Officers from the Major Investigation Team will shortly be attending various business premises throughout the City with a view to seizing CCTV evidence.
It is anticipated that most premises will retain their CCTV for 31 days, but if for some reason your premises keeps it for less than that time please make contact immediately in order that your seizure can be prioritised.
• 2009-04-14 The Guardian reports that City of London police manage and control the public CCTV cameras in the area, including at least one that overlooks Royal Exchange Passage:
There were at least two cameras on or beside Royal Exchange Passage. One, on the corner of Threadneadle Street, is a City of London police camera that can turn through 360 degrees. A second is affixed to Number 11 Royal Exchange, pointed at the area where Tomlinson may have been assaulted. [...]
A photograph taken by Branthwaite around one minute after that alleged assault shows a CCTV camera affixed to a wall in the distance.
Branthwaite has revisited the scene and taken more pictures of the CCTV camera, which she believes was pointed at the spot where she witnessed the first alleged assault.
"It's difficult to know what the lens was like on that camera," she said. "But given where it was pointed along the whole street, directed into the centre of Royal Exchange Passage, it seems likely it showed the incident I saw. That attack occurred in that vicinity."
CCTV
footage is missing when, by coincidence of course, it would be
damaging to the police. Police hide their identification (such as the
shoulder identification of this officer assaulting
a woman in a vigil for Ian Tomlinson). Cameras get broken in incidents
involving the police. And anyone taking a picture of a police officer
risks falling foul of counter-terrorism legislation.
As is clear from the above timeline, the IPCC was forced by the weight of independent video footage, photographs and witness statements to deal with the death of Ian Tomlinson directly. It took seven days to go from assessment to managed inquiry by the City of London police to an IPCC investigation.
One wonders what would have happened if there hadn't been this wealth of independent, mostly amateur, material.
As well as a criminal inquiry into the death of Ian Tomlinson, there must be a public inquiry into police brutality reviewing Mr Tomlinson's death, the unprovoked violent behaviour of some police officers and the general police tactics, such as kettling, when managing peaceful demonstrations. There's also a need for a comprehensive review of the laws and guidelines affecting public video capture and photography. As has been demonstrated amateur and news video and photographic documentation is essential to police accountability and justice.
The mobile phone as self-inflicted surveillance
And if you don't have one, what have you got to hide?
Like the breadcrumbs in Hansel and Gretel, mobile phones leave a trail wherever they go. Practically everybody can be tracked via this trail, and the beauty of it all is, we're effectively tracking ourselves.
By design, phones pass their location on to local base stations. You can gauge how effectively the networks can track you by requesting your personal information from your network provider using a data subject access under the Data Protection Act, or by just running Google Mobile Maps on your phone. The smaller 3G cells in central London give an even better location than on GSM.
Mobile phone penetration in Europe reached an average of
111.26 per cent in 2007 according to ITU estimates, while in the UK it was
118.47 per cent. We love them so much that we are more likely to leave
our wallet at home than our mobile.
The location breadcrumbs from these, along with other communication traffic data, are kept as part of a mass surveillance operation affecting everyone. They are collected by the networks, retained for a year, and handed over to the police and other bodies on request.
Professor Steve Peers, of the University of Essex and Statewatch, points out that although the system is incredibly sweeping, it doesn't stigmatise anyone because every phone call is going to be subject to this.
It's no longer just the individuals who are suspect of, or connected to, or convicted of a crime who are subject to some sort of additional surveillance beyond which they would traditionally have been subjected to. As regards to data retention, as regards to fingerprints, as regards to passenger records, it's everyone or a very large percentage of the population subject to the hoovering of that information.
This is cogent analysis. Mobile phones and email are used by everyone, including terrorists and other criminals. The data can be instrumental in tracking down criminals, with the caveat that having a bigger haystack does not make it easier to find a needle. But it misses one perverse effect - those who will be stigmatised in the future are those who don't have traffic data retained.
Lack of traffic data is what becomes suspicious. There are already two documented cases in Europe where not carrying a mobile phone was considered one of the grounds for arrest.
On 31st July 2007, in Brandenburg and Berlin, Germany, the flats and workplaces of Dr. Andrej Holm and Dr. Matthias B., as well as of two other persons, were searched by the police. All four were charged with "membership of a terrorist association" and are alleged to be members of a so-called 'militante gruppe' (mg):
According to the arrest warrant against Andrej Holm, the charge against the four individuals was justified on the following grounds:
• Dr. Matthias B. is alleged to have used, in his academic publications, "phrases and key words" which are also used by the 'militante gruppe';
[...]
• The fact that he - allegedly intentionally - did not take his mobile phone with him to a meeting is considered as "conspiratorial behavior".
On 11th November 2008, 150 French anti-terrorist police officers swooped on the 330-inhabitant village of Tarnac to arrest four men and five women aged 22 to 34, since nicknamed the 'Tarnac Nine'. These 'brilliant students' were living in a farm and ran a grocery store. All but one have been released. They were accused of "criminal association connected to a terrorist enterprise". French Interior Minister Michèle Alliot-Marie (MAM) was in the news soon after:
The Interior Minister is convinced of having saved France by nipping a revolution in the bud. For MAM, the defendants are the seed of Action Directe.
"They have adopted the method of clandestinity. They never use a mobile phone. They managed to have, in the village of Tarnac, friendly relations with people who could warn them of the presence of strangers," said the minister.
In the village, people laugh at this statement. One of the defendants rented an apartment above the town hall. "Is it a clandestine method?", asks Jean-Michel, who goes on: "Can one be labelled terrorist because he does not have a mobile phone?". Here, mobile reception is poor.
Mass surveillance of the rest of us is becoming even more pervasive. The UK started transposing the European directive on retaining data generated through electronic communications or public communications networks (European Directive 2006/24/EC) with the Data Retention (EC Directive) Regulations 2007. These came into force on 1st October 2007 and require service providers to retain fixed and mobile telephony traffic data of everyone's calls and SMS and MMS for one year and hand it over on request.
More than 650 public authorities can lawfully obtain communications data, including intelligence and law enforcement agencies, emergency services and other public authorities, such as the Financial Services Authority, local councils and the Home Office's UK Border Agency.
These regulations were superseded this week (on 6th April 2009), by the 2009 Regulations eventually completing the implementation of the European directive by adding the requirement to retain Internet access, email and Internet telephony traffic data as well.
What has to be retained in all cases is data necessary to trace and identify the source and destination of a communication and to identify the date, time and duration, and the communication's type. For mobile telephony and for Internet access, email and telephony, there's also a requirement to retain data necessary to identify users' communication equipment (or what purports to be their equipment) and the location of mobile communication equipment. The detail of exactly what needs to be retained has been regrouped in an easy to read list in a schedule to the Statutory Instrument (S.I.).
Earlier this year, Sir David Omand, a former Cabinet Office security and intelligence coordinator, gave a clear indication of what some in Whitehall have on their wish-list:
[A]pplication of modern data mining and processing techniques does involve examination of the innocent as well as the suspect to identify patterns of interest for further investigation.[...] Finding out other people's secrets is going to involve breaking everyday moral rules. So public trust in the essential reasonableness of UK police, security and intelligence agency activity will continue to be essential.
One extension to the traffic data retention guidelines that fits within this agenda is the building of a massive central silo for all UK communications data. Another is the e-Borders database (in pilot schemes, 0.0035 per cent of people screened were arrested); the location of your mobile phone had better match the country you declared you would be in.
Professor Steve Peers offers a glimmer of hope:
What is the relevance of [the European Court of Human Rights DNA database ruling in] Marper to that? To what extent can it regulate or stop what is clearly an ongoing development?
Marper is very relevant if it rules out the sweeping collection of personal data regardless of the stigmatisation factor and regardless of the UK factor (the distinction between the UK and the rest of the Council of Europe countries). If we ignore these factors and say what is wrong here is purely sweeping collection of personal data, then this is a very significant judgement. Then it's profoundly important. It really stands in the way of what we're already doing across Europe, not just in the UK.
Of course the ruling may be interpreted to have no relevance outside its application to the retention of DNA and fingerprints. Then Sir David Omand's national security strategy may be further implemented and carrying a mobile phone - an electronic tag - could become a necessity, if you don't want people to think you have something to hide.
Read and comment on this article
at El Reg...
Bootnote 2019-05-13
Human Rights Watch reports on How Mass Surveillance Works in Xinjiang, China:
Chinese authorities are using a mobile app to carry out illegal mass surveillance and arbitrary detention of Muslims in China’s western Xinjiang region. [...]
The app’s source code also reveals that the police platform targets 36 types of people for data collection. Those include people who have stopped using smart phones, those who fail to “socialize with neighbors,” and those who “collected money or materials for mosques with enthusiasm.”
[Emphasis added]
Last week a man being detained in a police kettle, during the G20 demonstrations, died. It was after 7pm, he had finished his day's work at a newsagent and wanted to go home. A video shot minutes before he collapsed shows him walking with his hands in his pocket and being violently pushed to the floor by a baton-wielding riot police officer. The police detained and assaulted many peaceful demonstrators in these so called kettles where a police cordon blocks anyone from leaving (or even getting in). This tactic was recently ruled lawful by the Law Lords and the case is now on its way to the European Court of Human Rights. As kettling is a form of detention, the death of Ian Tomlinson likely amounts to a death in custody.
A post mortem carried out by a Home Office pathologist revealed that Mr Tomlinson died of a heart attack.
"The family have arranged a second postmortem examination to take place later this week"
explained
a statement read out by Jules Carey,
solicitor for Mr Tomlinson's family.
The Independent Police Complaints Commission (IPCC) is managing
an investigation by City of London Police into the circumstances of
police contact with Ian Tomlinson
"to independently
investigate the alleged assault by police on Ian Tomlinson shortly
before his death. The investigation will also look into whether that
contact may have contributed to his death."
As was the case when Jean-Charles de Menezes was killed, the police statements to the media were wrong and remained uncorrected on the following days. A week later, the IPCC is saying that the CCTV cameras overlooking the incident were not working after initially claiming that there "were no cameras in the location where he was assaulted."
Read some witness statements here and here.
The picture above is by Bethnal Green police station (where some demonstrators have been detained after being arrested) at the end of a march against police brutality and in memory of Ian Tomlinson. Another one is planned for this Saturday, this time from Bethnal Green police station to Bank, starting at 11:30am.
There must be a public inquiry into police brutality reviewing Mr Tomlinson's death, the unprovoked violent behaviour of some police officers and the general police tactics, such as kettling, when managing peaceful demonstrations.
First published 2009-04-07; last updated 2009-04-11.
Just prior to the public launch of Contest 2 - UK's new counter-terrorism strategy - Home Secretary Jacqui Smith redefined terrorism in an interview on the BBC's Politics Show. From the included video:
What we do much more clearly in this [Contest 2] document is that we say: these are the shared values [of democracy, of tolerance, of human rights] to which we subscribe, incidentally terrorism is about killing people but is also about trying to undermine these shared values.
Fighting the ‘battle of ideas’ was introduced in the first Contest strategy. It is ironic that this government has demonstrated a lack of respect for these shared values. For instance, it has imposed restrictions on demonstrations and more recently threatened those taking photographies, including press photo-journalists. The government was found in breach by the European Court of Human Rights in its blanket and indiscriminate retention of DNA. This Home Secretary even ignored her own judges, and the law, by taking to Belmarsh prison suspects after they had been released on bail.
(Jacqui Smith also pointed out that as part of Contest 2, there are "60,000 people that we're now training up to respond to a terrorist threat, in everywhere from our shopping centres to our hotels". SpyBlog debunked this training claim in its analysis of Contest 2.)
The present legal definition of terrorism used in UK legal systems, found in section 1, Terrorism Act 2000, as amended by the Terrorism Act 2006 (Lord Carlile looked at the the definition of terrorism in a report he published in 2007):
(1) In this Act “terrorism” means the use or threat of action where— (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it— (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section— (a) “action” includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.
The definition of terrorism that has wide international agreement, according to Justice Chaskalson, is that of 'criminal acts committed with the intent to cause death or serious bodily injury [(i.e., excluding damage to property)] with the purpose of provoking terror in order to compel governments or international organisations to do or abstain doing any act'. The focus is on the act rather than on the actor, i.e., anyone performing an act of terrorism is a terrorist - be it an individual, an organisation or a state.
At one extreme we have a definition of terrorism limited to criminals causing serious bodily injuries and death, and at the other we have Jacqui Smith's interpretation that includes law-abiding individuals who do not share some system of values. Take your pick.
The universality of human rights and the work of the Council of Europe – 'Lecture Series of the Americas' speech by the Rt Hon Terry Davis, Secretary General of the Council of Europe:
<snip>
While I am on the subject of the fight against terrorism, allow me to make one important point. It is vitally important to dismiss the notion that Europe is soft on terrorism. It is nonsense. The fact is that Europe has a long and bloody experience of terrorism. We have learned – the hard way - that the objective should not be to fight terrorists but to defeat them. At the end of the day, the only effective anti-terrorist policy is one which stops more terrorists than it helps to recruit.
That is why in Europe we insist on respect for human rights and the rule of law. Contrary to the belief of some people, the European Convention on Human Rights is not a collection of lax, ineffectual and utopian principles. It is a body of international law, which was drafted in difficult and uncertain times and has been tested in courts ever since. The Convention balances the rights and freedoms of individuals against the interest of the larger community. It allows for a robust, effective and fair response to the threats faced by society, including terrorism. In Europe, we reject the bogus choice between security and freedom, and we are delighted that the new US administration has embraced this approach.
<snip>
In Guardian's Liberty Central, Comedian Mark Thomas explains how he got off the National DNA Database:
How I got my genes deleted
I've had my DNA struck from police records - now it's over to the rest of you 799,999 innocents
<snip>
In Guardian's Liberty Clinic, Anna Fairclough tackles the ongoing controversy about the indefinite retention by police of DNA taken from people who have been arrested:
Question eight: DNA database
RJMcReady wants to know if it is possible to challenge the indefinite retention by police of DNA taken following arrest
<snip>
Find out more about how to reclain your DNA. Check out GeneWatch UK and my articles Don't delay: Delete your DNA today - What to do now and Three months on, you still can't get off the DNA database - Carry on sampling....
The government had mentioned in the press that they were backing off clause 152 on information sharing. This has eventually been confirmed in Parliament. The government plans are to withdraw clause 152 entirely at the moment and to keep planning how to reintroduce some of its provisions in the future.
Michael Wills (Minister of State, Ministry of Justice) - House of Commons debates 2009-03-17:
Sharing information across Government Departments in a safe and proportionate way, with proper safeguards in place, is vital to the delivery of modern public services. That has always been Government policy.
[...]
I am grateful to the hon. Gentleman, and I hope it will give his constituents some reassurance to know that we have withdrawn the clauses that they are worried about.
[...]
In the case cited by the hon. and learned Gentleman, it became clear that the powers were drawn too widely. We have therefore withdrawn them, will redraft them, and propose to introduce data-sharing powers in future, precisely because we believe that they can be in the public interest if they are implemented safely and if they are proportionate.
[...]
The fundamental point remains that the creation of databases can be in the public interest. It is never easy to get these things right, but I think that if the hon. and learned Gentleman looks at the record of the private sector, just as much as that of the public sector, it will be clear to him that we all have a great deal to learn. We are learning those lessons, however. We have put measures in place constantly to improve data security. I entirely accept that we have some way to go, but the fact that there have been deeply regrettable breaches of data security is no reason for us to turn our back on all the public good that can be done by the creation of databases in the public interest, subject to the principles of data protection.
As some provisions in clause 152 were among the most intrusive proposals pushed by this government and would have subverted the Data Protection Act, this is an overall positive and welcomed move. It will however means that the better measures such as strengthening the powers of the Information Commissioner are also pushed back.
UPDATE: Andrew Dismore, the chair of the Joint Committee on Human Rights, said:
We welcome the Government's recent decision to remove the proposals to use secondary legislation to allow the 'bulk' transfer of large amounts of personal data - including DNA data, medical records, or children's information - between departments, agencies and councils and the private sector. But while there is some recognition that new protections, new powers, are needed when personal information is shared in the public sector, the fact that the private sector now holds vast amounts of personal information on people has not been recognised. As the line between private and public service providers becomes increasingly blurred it is important that the Information Commissioner's powers should be extended to cover the private sector.
First published on 2009-03-18; last updated on 2009-03-20.
The ACPO is launching a national campaign calling for untrained people to denounce their friends and neighbours who are a bit different - possibly foreign or with a mental handicap. This follows two similar campaigns by the Met, in 2007 and 2008, and a recent one by the GMP targeting hair salons. Here's a graphical example from this year's campaign by the Met:
The ACPO press release:
Launch of national counter-terrorism campaign
‘Don’t rely on others. If you suspect it, report it.’ That is the key message of the national counter-terrorism campaign launched today in the UK.
The campaign, which will use print, radio, outdoor and transport advertising, will remind people to be vigilant as they go about their daily business and to call the Anti-Terrorist Hotline on 0800 789 321 if they are concerned about suspicious activity.
Considering how bad trained police officers are at spotting terrorists, asking untrained people to attempt to do the same will end up creating more suspicion of anyone behaving a bit differently. This will obviously target those who have different customs and those who are afflicted by some illness, fuelling further discrimination. These campaigns also focus on common objects, recently photographers have been particularly targeted. Looking at our environment, be it buildings or CCTV surrounding us, - hostile reconnaissance as it is called by the police - is a cause for arrest but so far has not been a cause for any conviction.
Although the threat of attack remains real, the advertising campaign has not been launched in response to any specific threat.
So there has been no risk assessment?
Deputy Assistant Commissioner John McDowall, Senior National Coordinator Counter-Terrorism, said:
“This campaign is asking all members of the public to trust their instincts and contact the Anti-Terrorist Hotline on 0800 789 321 with any information they have. No piece of information is considered too small or insignificant.
“Terrorists live alongside us in our communities. They make their plans while doing all they can to blend in. They try to avoid raising suspicions about what they are up to.
“We want people to look out for the unusual – some activity or behaviour which strikes them as not quite right and out of place in their normal day to day lives – and to take responsibility for reporting it.”
Check out the interviews on the Colors Magazine website, or the profiles in the magazine itself, if you need to be convinced that this campaign will result in more innocents ending up on police files just because they're not British and white and compliant and...
The advertising campaign will run for between three and five weeks across the country from 16 March and asks members of the public to report any suspicious behaviour to the Anti-Terrorist Hotline on 0800 789 321.
All information passed to the Hotline is treated in the strictest of confidence and researched prior to police action being taken.
Issue 75 of Colors Magazine
is out. I haven't seen it yet, but its website has been updated.
The theme is Cease-Fear. Innocent individuals affected by counter-terrorism
policies around the world have been interviewed for this issue. Last
November, I was interviewed by journalist Elena Favilli and then
visited by photographer Piero Martinello and video artist Heloisa
Sartorato. Some more details on this issue:
The countdown for Guantanamo and its torture methods has begun, but the “dark skin + Muslim = terrorist” equation is likely to leave a long and lamentable legacy.
From the tragedy of the Twin Towers to the recent events in Mumbai, for many the threat of a new major act of terrorism necessitates relentless political, technological and day-to-day approaches to defense. But growing suspicion and fear of ‘the other’ has been the price of that defense.
Colors 75 examines this fear and its consequences: From traveling, daily life and the little frailties we can smile at, to the often-concealed violations of human rights committed in the name of security.
The case of Sami El-Haj, imprisoned in Guantanamo for six years without charge then released without an explanation, is one example featured in the magazine. David, arrested for failing to look at a policeman while taking the underground to his girlfriend’s place, is another.
Mark, Ardeth, Kevin and Hicham are just four among the thousands who can no longer fly without worrying about the color of their skin or the reputation of their religion. And as many line up jadedly at the airport check-in desk, Paul in Utah builds an anti-terrorism-attack bunker for €2500/m2, an elderly lady buys an electric pistol for €400, two Kentucky pensioners patrol their local river for terrorists, bees are trained to detect explosives and police in London cordon off a Thai restaurant after the smell of frying chili arose the suspicions of the neighbors.
Bruce Schneier and Loretta Napoleoni, a security expert and an economist, respectively, attempt to break down all this fear. “Terrorism,” says Schneier, “is a crime against the mind that uses violence as a totally casual weapon.” So casual that the “chances of being hit by lightning,” says Napoleoni, “are higher than those of dying in a terrorist attack.” If you don’t yet know whether you’re apocalyptic or integrated, find your path out of terror using the orange pages, Colors’ mini encyclopedia on terrorism and its diverse remedies.
Colors 75 / Cease-Fear: on sale from March 2009. In three bilingual editions – English plus Italian, French or Spanish.
Here's the final draft of my magazine interview:
“They surround me and ask me to take off my backpack. They empty my pockets, loosen my belt and handcuff me. They evacuate the tube station. “Nice laptop!”, they tell me, checking my backpack. Then they arrest me and drive me to Walworth police station. They take my DNA, search my flat and seize my personal belongings.
I was on my way to meet my girfriend at Hanover Square and was just waiting for the train.
What was so suspicious about me? My jacket was allegedly too warm for the season, I entered the station without looking at the police officers, I was carrying a backpack, I looked at people coming on the platform, I played with my mobile phone and I took a piece of paper from inside my jacket. Is all this suspicious? I think it's just normal.
Do you know what they found particularly interesting in my pockets? A folded A4 page where I did some doodles in red ink, a small promotional pamphlet for the movie The Assassination of Richard Nixon, and the active part of an old work pass with its electronics visible.
This is not making people safer, it is treating normal people as criminals, and choosing to create a surveillance state. It's dangerous”.
UPDATE: Colors / Cease-Fear is now available in newsagents and specialised bookshops in London. (If you have difficulties finding a copy, it's distributed in the UK by COMAG Specialist - a very helpful company that called me back when they promised to do so to let me know of several places close by having it in stock.)
Hicham Yezza, also featured in this issue, has been jailed following a nine-month sentence. His profile, in this issue of Colors, ends with:
I was completely shocked by the surreal scenario. I was kept in custody for six days as officers went through every details of my life with intense scrutiny: my activism, my books, my writing, my love life, my photography, my work in theater and dance and my cartoons. When they failed to find anything they tried to quickly deport me for immigration charges. An obvious abuse of power, this sets dangerous precedent by stifling freedom of speech, needed now more than ever in the fight against extremism.
You can write to Hicham at:
Hicham Yezza XP9266
HMP Woodhill
Tattenhoe Street
Milton Keynes
Buckinghamshire
MK4 4DA
(I've updated the XP number, as the one I originally published was unfortunately incorrect. You can also donate to Hicham's legal fund; see at the bottom of the IRR article: The case of Hicham Yezza for details.)
First published on 2009-03-05; last updated on 2009-03-19.
Monday in Parliament:
Christopher Huhne (Liberal Democrat): To ask the Secretary of State for the Home Department how old the (a) youngest and (b) oldest person with a profile on the national DNA database is; and how old the (i) youngest and (ii) oldest person to have had a profile added to the national DNA database was at the time the profile was added.
Jacqui Smith (Home Secretary, Labour): As at 26 November 2008, the youngest person with a profile on the National DNA Database was aged under one year and the oldest was over 90 years old. The youngest person to have had a profile added to the NDNAD was under one year old, and the oldest was over 90 years old, at the time the profile was added.
The precise age of the subject profile taken from the subject aged over 90 cannot be disclosed as it would constitute personal data as defined by Article 2 of the European Data Protection Directive: information relating to an identified or identifiable individual.
On 16 December 2008, I announced that the Government would take immediate steps to remove the DNA profiles of children aged under ten from the NDNAD.
This is the second time - at least - in three months that Jacqui Smith reminds us the government would take immediate steps. Does the time it takes depends on how many times the expression 'immediate steps' is repeated? Are three 'immediate steps' longer than a 'normal step'? Or a 'rapid step"? What about a 'slow crawl'? (Francophones will remember the wonderful sketch "Et puis y'a la télé" by Coluche.)
Coincidentally, on Monday, Jack Straw was talking at the LSE and Cafe Babel reports that he spoke freely about the retention of DNA records (surprisingly this comment is not included in the official transcript):
"I would be perfectly happy to hand over everyone's DNA. Some people think that it may be sensible to have a universal DNA database."
Except that those opposed to the blanket retention of fingerprints, DNA samples and profiles and associated records of innocents include a unanimous jury at the European Court of Human Rights, and we're all waiting for the government to eventually comply with this ruling.
Data provided by Alan Campbell earlier this month concur with GeneWatch UK's analysis that what makes a difference is adding crime scene DNA profiles not DNA profiles of innocents. The answer to the question 'how many and what proportion of recorded crimes have been detected using DNA from the national DNA database' (asked by Jennifer Willott ) is 0.71% for the first half of the financial year 2008-09. (Bear in mind that detections are achieved through integrated criminal investigation, not through DNA alone.)
Likely sensing that this figure may not show the stubborn insistence of the government to hold on to as many of our DNA profiles and samples as they can in the best possible light, Alan Campbell went on to answer a question that wasn't asked but that he must have felt better about. For a different period of time, 2007-08, there was an 89% match rate if you only consider crimes that 'yielded DNA crime scene samples of sufficient quantity and quality for profiling and loading to the NDNAD'. (If you consider all crime scences where DNA material was collected, the match rates lowers to 36%.)
This demonstrates that retaining good quality DNA profiles from crime scenes is really useful - as opposed to criminalising innocents from as young as a few months old -, and how desperate the government is on this issue.
13 X '200' litre barrels
12 X'18.5' litre water containers
1 '19' litre water bottle
4 X water bottles of various sizes
10 X inflatable dinghys
33 X car tyres
numerous large / small / bike inner tubes
plastic bag containing tyre valves
adhesives & patches
2 X '3ft' plastic tubes
5 X high output air pumps
1 foot pump
2 X airpumps
1 sail
4 X inflatable cushions
8 X inflatable canoes
inflatable matress
30 X canoe paddles, incl double / single / T-bar types of bladed paddles
13 X wooden 'homemade' paddles
46 X lifejackets
harnesses
4 X wet suits - (1 returned)
dry wader boots
2 X llife belts
various wooden pallets nailed together forming 5 Raft bases
8 x wooden pallet of various sizes
various sizes and lengths of wood / timber / plywood
51 x lengths of wood with yellow plastic end attachments (returned)
large quantity of 'branch' wood (returned)
31 x pieces of red coloured wood (returned)
16 x saws of varying size (4 ret)
2 x lengths of waste pipe
quantity of black foam pipe lagging
a variety of bungee cords (some ret) and various straps
4 x various sizes of hosepipe, some with connectors
5 x various sizes of netting (1 returned)
2 x plastic buckets
3 war on terror board games (returned)*
1 bandana
1 plastic character face mask with wig.
2 X wigs
2 X face masks
1 beige nose
black face covering - emblazoned with 'recognised enemy of the state'
1 balaclava
1 clown outfit
unknown animal head costume
3 X cycle helmets
large assortment of coloured hard hats (some returned)
3 X hoods
2 X hats
assortment of scarves
various overalls / coveralls (all ret) incl: painting, hooded, disposable, white
3 x pairs bolt croppers (1 returned)
cable cutters
10 x sets of wire rope cutters (returned)
tin spips
2 x pairs wire cutters
several pairs of pliers (1 returned)
molegrips
4 x hacksaws ( 1 ret), 9 hacksaw blades
Prof cut large metal saw.
electric cable tester
5 x parachutes
10 x hand held radio's (returned)
4 x smoke bombs
road map with phone number
bag containing a model of the power station, aerial photo and CD (returned)
2 maps of power station. (returned)
1 map
2 x lengths of fencing mesh
14 x 'one' tonne scissor jacks (all returned)
4 x spades (returned)
3 x sledgehammers (2 returned)
2 x D rings for towing (very heavy duty)
metal tow pin
4 x climbing Karabinas
various holdalls and rucksacks (2 returned), 2 x containing rock climbing kit
3 x climbing harnesses
17 x buckles
several lengths of webbing with ratchets
large assortment of ropes
1 scaffold jack (returned)
1 car jack
6 rolls of normal duct tape
3 rolls of duct tape sprayed with silver paint
8 rolls of black duct tape
3 rolls of grey duct tape
1 roll of white duct tape (returned)
17 rolls of gaffa tape
1 roll of white gaffer tape
4 rolls of silver gaffa tape
numerous coloured spray paint cans (some returned)
spray paint adapter
various sized paint brushes (some returned)
vessels of paint primer
vessels of acrylic paint
various vessels of paint (some returned)
tin of metal paint
tube of putty
pot of ink
various containers / tubes of glues and adhesives incl: superglue, araldite resin, evostick, bostic, 'no
more nails', spray adhesives (some returned)
assortment of coloured marker pens (some returned)
pencils, crayons and chalk (some returned)
various lengths of chains incl: steel-o-chain, coil, bike, some cut/broken (some returned)
In excess of 53 x D-locks (some returned)
38 x bike locks - (some returned)
6 x combination locks
small number coil locks
small number loop locks
small number steel locks
1 of each, barrel, crook locks
2 x steering wheel locks
cable loops
various padlocks incl: key, combination, anchor, (some returned)
bluetac
various types of tape, including gaffer, duct (some returned)
1 wooden walking stick
5 x round wooden shields with blue rope handles
1 spear
3 x capped needles
large kilt pin
bamboo sticks in a bundle
assortment of wooden fence posts / stakes
stakes with blue and black plastic end attachments (returned)
assortment / bundles of metal stakes of varying length (many returned)
1 copper pipe
razor blades
3 x yellow playing darts (returned)
4 x ice axes, 2 x ice picks and 3 x pick axes (2 returned)
27 x grappling hooks (26 returned)
2 x small axes (1 returned)
staple gun (returned)
black plastic imitation rifle
2 metal rods (1 returned)
black metal handle
1 wooden handle with metal handle
2 red petrol cans
bomb' bag
2 boxes of display fireworks
2 golf balls
1 golf club (returned)
tweezers
glass containers, jars, bottles (some returned)
10 pairs of scissors
assortment of knives, incl the types of: Swiss Army, metal / wooden and plastic folding, wooden
handled, pen, kitchen, craft, flick, lock, skinning, steak, paring, leatherman.
2 forks
variety of hammers (4 ret) incl, clubb, wooden handled, floral, claw, mallett
various power / hand drills and drill bits
assortment of screwdrivers (3 returned)
selection of spanners / wrenchs inc, adjustable, fixed, bike (1 returned)
numerous multitools
1 chisel
nails (some returned)
metal comb
assortment of clips, inc jubilee, metal
various wires / cables incl: welding, plastic coated, coiled, solder
jointed metal bike rack - damaged
2 x electrical leads (small)
various yellow studs/rivets
handcuff key
bolts with washers
solder and assortments of metal wire
nuts & bolts
tin container
small screws and safety pins
2 x blue metal wheel braces
1 metal object
2 flashlights & 1 dragon lamp
1 book titled 'Wholey Irrisponsable Experiments'
assortment of leaflets / flyers/ newsletters / booklets / envelopes
Anarchist literature booklet
Camp for climate handbook
various banners
bag containing several flags
small number of badges
cardboard artifacts
congestion card
Swiss Card (Quattro Black)
1 climate change card
1 number stamp
bag of balloons and party poppers
assortment of strings / twine / ribbons / cords, excl: ropes and cables
numerous washing lines
assortment of plastic bags / bin liners/ cloth (returned)
hessian sacking
various sizes / rolls of carpet / cloths
blankets / rugs
large number of ground mats
various tarpaulines
14 X white plastic table tops
large number of plastic rings
midi block brush
2 pairs of nail clippers
metholated spirits
white tub containing soap, Potassium Hydroxide flakes and Methonol
dealer' bag containing traces of white powder
Paracetomol tablets in box
Diazipam tablets 5mg
Cannabis grinder
reflective trailer marker
sinometer
solar power power leads
hammock
2 X stick candles
camera - (found property)
50m extension lead
ladies mountain bike
1 box containing 17 plastic fog horns (returned)
package of green matter (returned)
empty can
empty bottle
vault lock
1 pair of blue ear defenders (returned)
assortment of gloves incl: latex, plastic, heavy duty gripper (returned)
This poetic list is the description of the property seized by Kent police as part of Operation Oasis; the operation conducted at Climate Camp in Kingsnorth in August 2008. Will there be an exhibition? This list was published by the BBC, and that's the authoritative source for it writes the Kent police. This operation cost £5.9m. It was initially claimed 68 out of the 1,500 officers involved sustained injuries from the protesters. It was later found out that "Kent police have informed the Home Office that there were no recorded injuries sustained as a result of direct contact with the protesters." Here's a mashup of the lists of injuries:
four injuries involved any contact with protesters at all and all were at the lowest level of seriousness with no further action taken.
officer stung on finger by possible wasp
officer injured sitting in car
officer succumbed to sun and heat
officer cut his arm on a fence when climbing over it
officer cut his finger while mending a car
officer used leg to open door and next day had pain in lower back
three officers had succumbed to heat exhaustion
three had toothache
six were bitten by insects
others had diarrhoea, had cut their finger or had headaches
To get a feel about getting in the Climate Camp, check out the 18-minute video documentary by Jason Parkinson about police stop and search of journalists. The Guardian has since obtained footage shot by police, accompanied by their own critical commentary that shows how their officers monitored campaigners and the media – and demanded personal information. Also revealed is that the Police are maintaining a database of the details of thousands of political campaigners and journalists. What some police officers think about freedom of the press, an essential requirement for a democratic society:
"A lot of press officers aren't there. Just think they can bloody wander in and out of the field. It's wrong, I think," the lead officer remarked when the ITV crew was in shot.
The combination of the stop of search powers of section 44 of the Terrorism Act 2000 (which have more to do with reassuring the public than catching terrorists), the new arrest powers brought in with section 76 of the Counter-Terrorism Act 2008 - in particular when taking photographs of police officers, this database of activists and press, and the promise of Superintendent David Hartshorn that the 'Police are preparing for a "summer of rage"' make for a bad cocktail. How many more innocents, who have committed no crime, will have to be surveilled and arrested before the situation improves?
(* We learn that the war on terror board games were seized for the sole reason they contain an 'evil' balaclava and were sealed.)
Carry on sampling...
Almost three months on from the unanimous ruling by the European Court of Human Rights (ECtHR) against the UK's mass retention of DNA of innocent people, the situation has turned worse. Although eventually the UK should become compliant with the ruling, police forces are adopting a wait and see attitude, while Jacqui Smith is pushing back any response.
Meanwhile, the Government has tabled an amendment giving sweeping powers on DNA retention, use and destruction to the Secretary of State.
At the end of last year, in Don't delay: Delete your DNA today, looking at the ECtHR ruling and at how few individuals had requested to be taken off the National DNA Database and how even fewer had succeeded, I wrote "If you are among the estimated 573,639 to 857,366 innocents whose DNA profile is on the National DNA Database (NDNAD), you should act now. Don't wait until the time the police will have to weed out these records and samples."
Individuals who wrote, since the ECtHR ruling, to the chief of police of the force which took their DNA received stock answers telling them to wait until the Home Office decides to issue further instructions. (Many thanks to all those who wrote to me with copies of the letters they received.) This is most unsatisfactory and possibly even illegal. From the wording of these letters and of some responses to Freedom of Information requests I made to all the police forces, it appears that chief constables are extremely reluctant to consider any case until new guidance arrives. The police are known to want to cling to any data they have. The five forces that were ordered by the information tribunal to the delete old criminal convictions 'held for longer than necessary' from the Police National Computer are also considering appealling against this decision.
They want to have their cake and eat it. If nothing has changed, then they still operate under the ACPO guidelines, and hence are under the obligation to consider the individual merit of each request, and whether they are exceptional enough. A judicial review in case of a negative decision would likely take into consideration the ECtHR ruling and hence put pressure on chief constables to grant requests from innocents - if they consider them. I would be interested to hear from anyone initiating a judicial review in such circumstances. Here are some of the stock answers currently sent out:
At the present time whilst the judgement in the European Court of Human Rights has gone against the UK it does not have any impact until UK law is changed by parliament, so at the present time no changes can be made to police procedures.
I can assure you that... Police will comply with whatever changes are made to the law. I know that the Home Office are dealing with the implications of this judgement but at the present time I do not know what these changes will be or when they will come into force.
From a different police force:
Since the case the Government has been preparing a response to this ruling, which is currently under consideration by their lawyers. It should be noted that whilst this judgement has gone against the Government, it does not have any impact on the current retention policy until the law is changed by Parliament. It therefore follows that the current legislation and procedures remain unaffected by this ruling.
In anticipation of receiving further guidance and the necessary changes in the law, your details will now be retained within my department and dealt with in the appropriate way as soon as possible.
And a more detailed one from yet another force:
On 4th December 2008 the European Court of Human Rights unanimously held in the case of S & Marper that the retention of fingerprints and DNA of all persons, suspected but not convicted of offences, constituted a disproportionate interference with the individual's right to respect for a private life and could not be regarded as necessary in a democratic society.
The Government is expected to provide a considered response to this ruling, which is currently under consideration by their Lawyers.
Whilst this judgement has gone against the Government, the current domestic legislation remains unaffected by the ruling and it does not therefore have any impact on the retention of fingerprint and DNA policy until the law is changed by Parliament.
Individuals who consider that they fall within the ruling in the S & Marper case are being advised to await the full response to the ruling by the Government prior to seeking advice and/or action from the Police Service in order to address their personal issues on the matter.
Considering the ECtHR ruling and Jack Straw's intervention in the Commons the day of the judgment: 'We have an obligation to report initially to the Council of Ministers and the Council of Europe by March.', it would seem reasonable to expect the detail of the Government's plan, if not actions, to be announced before the end of March.
The Joint Committee on Human Rights (JCHR) has a similar understanding and is expecting proposals from the Government by March 4th. Following the lack of substantive response from Vernon Coaker at the oral evidence session of the JCHR on 2008-12-09 (see Q65), the same day, Andrew Dismore, MP and Chair of JCHR, sent a letter to Jacqui Smith "to ask for further information about the Government's response to the judgment of the Grand Chamber of the European Court of Human Rights in S and Marper v United Kingdom (App. No 30562/04 and 30566/04, 4 December 2008)."
This letter includes a series of specific questions:
I am writing to ask for further information on the Government's response to this judgment:
• What general measures does the Government consider are necessary in order to remove the breach of the Convention identified by the Grand Chamber?
• Does the Government now intend to destroy all fingerprints or samples currently held on the national DNA database, or otherwise held by the police, except those which were gathered during an investigation which led to the donor's conviction? If not, why not?
• Does the Government intend to amend the provisions of Section 64 (1A) PACE?
• Specifically, does the Government intend to bring forward proposals similar to those which currently apply in Scotland? If not, why not?
• If the Government considers that legislative changes are necessary to remove the breach, does the Government intend to (a) use the remedial order process provided for in the Human Rights Act; or (b) bring forward proposals in the expected Policing and Crime Bill.
• If the Government intends to use a remedial order, I would be grateful if you could explain whether the Government intends to use the urgent or non-urgent procedure.
• If the Government considers that legislative changes are necessary but does not intend to bring forward proposals in the Policing and Crime Bill or in a remedial order, I would be grateful if you could provide a detailed explanation for that view.
• If legislative reform is proposed, my Committee would be grateful for copies of the draft proposals as soon as they are available.
• If the Government does not consider that legislative changes are necessary, please provide a detailed explanation for that view.
Following the timetable we recommended in our earlier reports, we would expect the Government to write to us with their initial reaction to the judgment by 4 January 2008 and with their proposed response to the judgment, including any proposals for general measures which the Government considers necessary to remedy the breach before 4 March 2008.
[emphasis in the original]
Again on 2008-12-09, this time in the Lords, Lord West of Spithead gave the strong impression that the Government was already well prepared and could move soon, well in time for the deadline, so far believed to be early March:
My Lords, the UK Government are bound by international law to comply with the judgment of the European Court of Human Rights. The European Convention on Human Rights was established to protect the interests of us all. However, it will be for the UK Government and Parliament to consider how best to give effect to the judgment. We established a contingency planning group earlier this year to look at the potential implications of a violation judgment. The group has been dealing with a hypothetical situation up until four or five days ago, and it will now focus its planning on the implications of the judgment. [...]
Until we come up with changes to our recommendations - as I said, we must come up with proposals by March 2009 - nothing will change.
However, Jacqui Smith's response to the JCHR, dated 2009-01-05, has an entirely different interpretation of the situation. Her letter doesn't answer the questions from Andrew Dismore and moves the deadlines further into the future - April for an initial response with a review by the ECtHR in June:
Technological developments and, in particular, the use of DNA in investigations has been one of the breakthroughs for modern policing in which we have led the world. It has contributed to convictions for serious crimes and also the exoneration of the innocent. However, I am conscious that we need to ensure that our policy enjoys public confidence. We need also, of course, to implement the judgement of the ECtHR. As you may be aware I announced on 16 December at the Intellect trade association* that we will consult via a White Paper on Forensics next year on bringing greater flexibility and fairness into the system, using a differentiated approach to the retention of samples, DNA profiles and fingerprints.
You will be aware that implementation of ECtHR's judgements are overseen by the Committee of Ministers. I am informed that the first substantive consideration of the Government's response will be at the June meeting for which papers will be circulated in early/mid April. We will send plans for implementation to the JCHR when we send them to the Committee of Ministers.
Things got further muddled last Friday, when the Government submitted an amendment to the Policing and Crime Bill, which it claims will implement the judgment of the European Court of Human Rights in the Marper case. Thanks to GeneWatch UK for spotting that amendment, which has otherwise not received much publicity. From a cursory reading, this amendment gives a blank cheque to the Secretary of State:
After section 64A of the Police and Criminal Evidence Act 1984 (c. 60) insert - "64B Retention and destruction of samples etc
(1) The Secretary of State may by regulations make provision as to the retention, use and destruction of material to which this section applies.
(2) This section applies to the following material - (a) photographs falling within a description specified in the regulations, (b) fingerprints taken from a person in connection with the investigation of an offence, (c) impressions of footwear so taken from a person, (d) DNA and other samples so taken from a person, (e) information derived from DNA samples so taken from a person.
<snip>
(8) The regulations may make provision amending, repealing, revoking or otherwise modifying any provision made by or under an Act (including this Act).
A delayed response, no consultation yet (though they're often not effective) and an amendment letting the Home Secretary change the law not only to comply with the ECtHR ruling - whichever way she interprets it - but possibly to authorise new uses of our DNA without any review is what's on the table. And there's another risk of re-creating a wide DNA database via another route, using the data sharing clause as currently in the Coroners and Justice Bill. Hopefully the Committee of Ministers and the JCHR will ensure the Government doesn't delay further any action and fully adhere to the spirit of the ECtHR ruling as well as its letter. To contrast, in Scotland, the Justice Secretary announced last week that DNA information will be held indefinitely by police only where a person has been convicted in the criminal courts.
* In her speech to the Intellect Trade Association, the one promise Jacqui Smith made was to take immediate steps to take off the NDNAD the records of around 70 children under 10. A month later, Jacqui Smith reiterated that she had said mid-December the 'the Government would take immediate steps'. She also explained that these statistics of 70 under 10 are subject profiles submitted by police forces in England and Wales, as of 30 September 2008. The Government and the police always mention a replication rate of about 13 per cent when estimating how many individuals are in the NDNAD from the number of profiles - not in this instance. There has been no confirmation that these profiles and associated records have been deleted, nor the samples destroyed, and I am awaiting a response to a Freedom of Information request querying this promise.
Read and comment on this article at El Reg...
(The Parliament website has since published the Public Bill Committee debate about the amendment mentioned in the article.)
In just one week in the UK.
Home Secretary ignores judge's decision, kidnaps bailed men and imprison them in Belmarsh
SIAC is meeting again today, and the whole situation threatens to turn into a colossal headache for the government. The men’s lawyers will argue that the government was in contempt of court, and it is expected that Mr. Justice Mitting, the chief judge, will not be happy to hear that the government behaved as though SIAC’s decisions were irrelevant, and, moreover, that the Home Secretary then acted in a manner that would have pleased King John, in those days before England’s nobles forced him to sign the Magna Carta in 1215, establishing for the first time that the king had no right to imprison his subjects “except upon the lawful judgment of his peers or the law of the land.”
Today, we seem to be experiencing a new version of the divine right of kings: the self-declared right of an elected government official to ignore her own judges, and to cast foreign “terror suspects” into the modern day version of the Tower of London — Belmarsh prison — with no regard for the laws established over the last 794 years.
Reprieve renditions investigator Clara Gutteridge said: “I’m afraid this is only the tip of the renditions iceberg.”
“For years now, the British government has been tossing us miserable scraps of information about its involvement in illegal renditions in Pakistan, Diego Garcia and now Afghanistan.
“Enough is enough. The British government must come clean and reveal exactly who has it captured, what has been done to them, and where they are now.”
Police disrupts Viva Palestina convoy and terrorise solidarity
The police attack on the Gaza convoy undermined participation in democratic politics, as George Galloway has rightly said. More generally, participation in international solidarity activity here is being persecuted in the name of preventing terrorism. Similar powers have also been used against Tamil, Kurdish and Baloch activists, among others. Indeed, this is a main reason why the state has ‘anti-terror’ powers, which are not needed to protect the public from violence.
Therefore such powers and their use should be opposed by everyone who supports democratic rights of free expression and association. Solidarity is needed for political and charitable activities which may be targeted in the future.
Recently I have been asked several times how to go about obtaining a copy of one's personal information held by an organisation and how to access information held by a public authority. Often these two interests have been confused, they are distinct in their scopes and approaches. There's a wealth of information already spread across the web, possibly so much that it can be daunting to figure out where to start looking. In this short post I attempted to provide a basic primer to clarify the confusion and give you just enough information so you can start issuing your own data subject access and freedom of information requests whenever appropriate. As my experience has been mostly with police matters, this primer includes related tips and a list of FoI contact details for all police forces. For more information or more complex matters such as complaining see the links at the bottom.
How to obtain personal information which is held by an organisation?
This is covered by the Data Protection Act 1998. Under the DPA, individuals can request a copy of the information held about them by organisations, whether public or private, by sending what is called a data subject access request to the data controller of the organisation. There can be a cost of up to £10; in practice it's either free or £10. Organisations have 40 days to reply.
All organisations that hold personal information must register the details of their data controller and the types of information they record in a register of data controllers maintained by the Information Commissioner's Office. This register can be searched however the search engine functionality is limited and it can be difficult to find the details of an organisation you're looking for; it's often easier to check the website of the organisation you wish to contact for this information.
In your data subject access you will need to give enough information for the organisation to be able to identify you and the information they may have about you. Organisations are only allowed to send back identifying information about you. There are some exceptions, for national security for instance where the organisation does not have to send you the data it is holding about you. If you request a CCTV footage they have to blot out any other individual present and it is now more difficult to obtain CCTV footage under the Data Protection Act unless the footage is specifically about you.
You need to be aware that to comply with the DPA, organisation should not retain the information for longer than needed for the purpose for which it has been obtained so do not delay any data subject access otherwise the information you seek may have been deleted.
An example of the use of the Data Protection Act is to obtain a copy of the personal information held about you in the Police National Computer (aka your PNC record). Most Police forces have forms for this purpose and they list the documents needed to prove your identity. They all charge £10.
How to access to information which is held by a public authority?
This is covered by the Freedom of Information Act 2000. Under the FoIA, individuals have the right to request recorded information held by a public authority. The public authority has to provide the information requested unless it has good reasons not to! For the authority to keep the information confidential it has to valid legal reasons to do so. Requests are free, however there's a limit on how long public authorities may spend trying to answer a request. A response must be provided within 20 working days. It is valid and not uncommon for authorities to write to mention it will take them a little longer than the 20 working days.
Note that the FoIA gives you right to access information only from public authority. It may not always be obvious what is a public authority and what is not. For instance, Police forces are public authorities, but the Association of Police Officers (ACPO) is not.
Before issuing an FoIA request it is worth checking the publication scheme of the concerned authority to see if the information you seek has not already been published. It's also worth checking if someone else has not already asked the same question, for instance using What Do They Know.
To initiate a request, you need to find the contact details of the FoIA team of the public authority. It is usually easy to find this on their website. Some authorities require you to send your request in a web form, but most accept email (note that some refuse cryptographically signed email). You must write a clear description of the information you are after and provide a contact detail. It is worth ensuring the description is precise and clear as this is the only information the public authority will have to figure out what it is you want. You have to provide your real name and either an email address or a physical address; some authorities insist for a physical address but this is not a requirement.
Two common reasons for refusal are that the data you seek is not held by this public authority and that it would take too long to find the answer (often because the source data would require manual searching). If you get a refusal, but believe that the authority should really be able to provide the information, a good initial follow up is to point out that under Section 16 of the Act, the authority has a duty "to provide advice and assistance". You can also offer to narrow your initial request to ensure that the search fits in the allotted time available.
In the case of police forces, the maximum time/cost they are allowed to spend on a FoIA request is 18 hours, sometimes expressed as £450 (i.e., a rate of £25 per hour). Some forces consider just dealing with the admin of the response takes up to three hours of this total.
Further information:
This post is a follow-up to the earlier post Poor at mind reading? Snap a copper and get ten years in the slammer about Section 76 of the Counter-Terrorism Act 2008. The pictures are from the event 'I’m a Photographer … not a Terrorist' at New Scotland Yard.
Here are two positions we did not include in the earlier post. Firstly, a Government response:
The new offence of eliciting, publishing or communicating information about the armed forces, security and intelligence agencies or the police contained in section 76 of the Act is designed to combat the activities of those whose conduct might assist terrorists. We judge that members of the police and UK intelligence services are regarded as potential targets by Islamist extremists in the UK. We accept that this is a wide-ranging offence, but to mitigate this we have put in place robust safeguards. First, it is a defence to for the defendant to prove that he had a reasonable excuse for his action or possession. This burden on the defence to show a reasonable excuse is an evidential burden only (not a full reverse burden of proof). This means that the defence need only raise an issue with the evidence and it will then be for the prosecution to prove beyond reasonable doubt that the offence was committed. Second, in keeping with other serious terrorism offences, section 117 of the 2000 Act applies. This provision requires the Director of Public Prosecutions to consent to any prosecutions of this kind, thus providing a safeguard against any alleged spurious prosecutions. Perhaps most importantly, we believe that the principles set out in R v K, which considered section 58 of the 2000 Act, would apply to this offence. Here the court considered that the possession or act must raise a reasonable suspicion that it was intended to be useful to a person committing or preparing an act of terrorism. We therefore consider that the offence contained sufficient safeguards to protect the suspect.
And secondly, the request Do not make us the 'secret' police of the Metropolitan Police Federation:
[Section 76] is open to wide interpretation or, rather, misinterpretation. How, for example, will it be expected to apply in practice to the 2012 Olympics, which will be both a photo-event par excellence and subject to an intense security operation?
Does the law mean tourists are going to be rounded up and arrested en masse for taking suspicious photos of iconic scenes around the capital? That will work wonders for the international reputation of the London Bobby and for the city as a whole as a welcoming destination.
If there is a terrorist attack in the capital, will the media concentrate their efforts on fire and ambulance crews and prudently avoid broadcasting or publishing pictures of police officers, rendering them invisible to the public?
Police and photographers share the streets and the Met Federation earnestly wants to see them doing so harmoniously. Good relationships between the police and media benefit everyone, including the public, which both sides exist to serve.
As things stand, there is a real risk of photographers being hampered in carrying out their legitimate work and of police officers facing opprobrium for carrying out what they genuinely, if mistakenly, believe are duties imposed on them by the law.
This is unfair on everyone and completely avoidable - hence, the Met Fed's call for joint action to produce a mutually-agreed code.
We do not want to become the ‘secret’ police.
The Abolition of Freedom Act Report 2009 marks the beginnings of a research project that seeks to track the unintended consequences of legislation on our fundamental rights and freedoms in the UK since the Human Rights Act 1998. This report has been compiled by the UCL Student Human Rights Programme (UCLHRP) on its shiny new website. The students work on several other projects about human rights issues; it's worth checking out the rest of the site.
This UCLHRP report is published alongside several briefings by the Convention on Modern Liberty on its research page:
We have a small team of researchers at work chronicling some of the most striking examples of the abuses the Convention aims to help stop. We will be using this page to publish the result research documents. You can download PDF versions of those we have already published using the links below:
#1: Innocence is no protection against the government's laws
#3: Has Britain become obsessed with petty minded control?
#5: The personal questions the government wants us to answer
See also a detailed report compiled for us by the UCL Student Human Rights Programme, listing all the liberties we’ve lost in the past decade:
While the Met has been running annual ad campaigns for the past two years calling all Londoners to denounce anyone looking or behaving a bit different, the Greater Manchester Police is planning a campaign targeted at hair salons. The Manchester Evening News reports:
HAIR salons could soon be in the frontline in the war on terror. Police research shows women are less likely to take on board security messages.
Now experts have pinpointed hair salons as the perfect place to target them.
They plan to show videos while women are having their hair done to encourage them to report suspicious behaviour on a special hotline.
Greater Manchester Police has been chosen to co-ordinate a national publicity campaign which will also feature national TV and radio adverts, posters and videos in railways stations, on buses and next to major city roads.
Ads broadcast in hairdressers' salons calling for denunciation have little chance of detecting a terrorist, but will help fuel a climate of mistrust that promotes discriminatory and racist attitudes.
There are fears the threat of terrorism has drifted off the agenda with the onset of the global recession.
This is a poor security trade-off.
(hat tip to (Barber) Shop out your neighbours to the police, Mancunian terror propaganda plan makes us less safe and Thank god for Boris (or, why I'll never get my hair done in Manchester))
A panel composed of eight judges and lawyers took three years, conducting 16 hearings in 40 countries, to complete a 213-page report about the impact of counter-terrorism policies worldwide. The International Commission of Jurists (ICJ) organised an event, chaired by Baroness Helen Kennedy QC, for the London launch of its report Assessing Damage, Urging Action.
Panel chair Justice Arthur Chaskalson (South Africa) reminded the audience that terrorism is a real threat that should not be underestimated. Governments have a duty to take action, based in law. Justice Chaskalson is concerned the picture the panel developed while working on this report is worse than what they expected. There has been a paradigm shift from the second half of last century to the last seven years; from the development of the Universal Declarations of Human Rights to greater control, greater surveillance and less rights.
Hina Jilani (Pakistan) and Mary Robinson (Ireland) both reiterated how much they were taken aback by the amount of damage that has been done by counter-terrorism policies worldwide, by the cumulative impact, how much damage has been done. Talking about intelligence services and calling for effective monitoring and accountability, Ms Jilani pointed out collusion between as a key issue. Not just collusion in lawlessness, but also collusion in covering up. Another key issue is the secrecy that seeps into the system leading to detention incommunicado, practices leading to torture, etc. Ms Robinson concluded that it's time to take stock and act to repeal abusive laws and policies (see below for key recommendations).
After Eric Metcalfe, from Justice, went through Key issues in the UK counter-terrorism policy since 9/11, Roger Smith, Justice's director, suggested we need to go through a process of recognising what we have done and then disown it. One law that could follow this process is the Identity Cards Act!
To a question from Liberty about whether the panel would agree to recommend MPs to abandon control orders when they will be reviewed soon, Both Justice Chaskalson and Hina Jilani said that personally they dislike control orders. A reason for this dislike is that they are not sure what they achieve. Common outcomes for those subject to control orders are to either abscond or to end up being criminalised for breach of the conditions of the control order. Mary Robinson was also concerned by the extent of the conditions such as the up to 16 hours staying at home every day (for control orders that do not derogate from the European Convention of Human Rights).
To a question by this reporter about the many definitions of terrorism, Justice Chaskalson pointed out that creating a new definition was out of the scope set by the ICJ. However a definition of terrorism that has wide international agreement is that of 'criminal acts committed with the intent to cause death or serious bodily injury [(i.e., excluding damage to property)] with the purpose of provoking terror in order to compel governments or international organisations to do or abstain doing any act'. The focus in on the act rather than on the actor, i.e. anyone performing an act of terrorism is a terrorist - be it an individual, an organisation or a state.
UPDATE: There's a very good interview of Mary Robinson with Riz Khan on Al Jazeera (you can also get the video or just the audio on iTunes)
Key recommendations [from the report]
Each chapter of this report sets out the Panel's detailed recommendations and provides a fuller argumentation for each proposal. The following is a summary of the key recommendations:
1. stocktaking and repairing the damage
There is a need to take stock, take remedial action, and make a fresh start. Measures need to be taken at the international, regional and national levels:
a. Internationally: All UN bodies, including the Security Council, should take a leadership role in restoring respect for human rights in the counter-terrorism efforts of its agencies and member States. In particular, the Human Rights Council should develop a detailed plan of action and ensure a systematic follow-up to the recommendations of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
b. Regionally: Relevant organisations should conduct a comprehensive review of regional agreements and measures on counter-terrorism, and review, where necessary, the mechanisms to ensure compliance with human rights standards, including mechanisms for monitoring implementation by member States.
c. Nationally: States should undertake comprehensive reviews of their counter-terrorism laws, policies and practices, including in particular the extent to which they ensure effective accountability, and their impact on civil society and minority communities. States should adopt such changes as are necessary to ensure that they are fully consistent with the rule of law and the respect for human rights, and to avoid all over-broad definitions which might facilitate misuse.
2. Preventing the normalisation of the exceptional
States should take explicit precautions to ensure that any measures, intended to be exceptional, do not become a normal part of the legislative framework. Precautions could include ensuring that any new counter-terrorist laws or measures:
• fill a demonstrable gap in existing laws;
• comply with all the requirements of international human rights law, and where relevant, international humanitarian law;
• are subject to clear time-limits;
• are subject to periodic independent review, not solely as to implementation, but also as to the continuing necessity and proportionality of the measure;
• and that the review process monitor that any formal derogations entered by the State are only in place for as long as terrorism poses a genuine threat to the life of the nation, and are in compliance with all substantive and procedural requirements of relevant instruments.
3. Equality and non-discrimination
States must ensure that counter-terrorist measures are non-discriminatory, and that due respect be paid to the rights of those, such as juveniles, women and minority communities, who may experience terrorism and counter-terrorism measures differentially. A particular effort must be made to ensure that people are not treated as terrorist suspects on the sole basis of their ethnicity, religion, or similar identity.
4. accountability in counter-terrorism measures
States should ensure that where human rights violations have been alleged, effective inquiries, with proper disclosure, should be established. Accountability should be strengthened on all levels and, in particular, provisions for immunity, indemnity clauses, and limitations on access to courts should be removed. Effective remedies and accountability depend to a large extent on a strong, independent and knowledgeable judiciary and legal profession: efforts should be made to strengthen the criminal justice system, including the provision of technical assistance where needed.
5. Repudiating the war paradigm
The incoming US administration should reaffirm the US's historic commitment to fully uphold and faithfully apply the laws of war during situations of armed conflict and recognise that human rights law does not cease to apply in such situations. Accordingly, it should seek the repeal of any law and repudiate any policies or practices associated with the “war on terror” paradigm which are inconsistent with international humanitarian and human rights law. In particular, it should renounce the use of torture and other proscribed interrogation techniques, extraordinary renditions, and secret and prolonged detention without charge or trial.
It should also conduct a transparent and comprehensive investigation into serious human rights and/or humanitarian law violations committed in the course of the “war on terror” and should take active steps to provide effective remedies to the victims of such abuses. The military detention centre at Guantánamo Bay should be closed in a human rights compliant manner and persons held there should be released or charged and tried in accordance with applicable international law standards.
Other countries that have been complicit in human rights violations arising from the war paradigm should similarly repudiate that behaviour and review legislation, policies and practices to prevent any such repetition in future.
6. Human rights compliant intelligence efforts
States should take steps to ensure that the work of intelligence agencies is fully compliant with human rights law. The powers of intelligence and law enforcement should be separated and intelligence agencies should not in principle have the power to arrest, detain and interrogate; if intelligence agencies are assigned such powers, the powers should be exercised in conformity with human rights standards.
Care should be taken to regulate by law the powers of intelligence agencies, the gathering of intelligence and the sharing of intelligence with other agencies. It is also imperative to establish independent oversight mechanisms. There should be precise rules on the protection of privacy and measures such as surveillance and interception of communications should require judicial authorisation.
States should provide effective remedies and reparation for human rights violations (including those carried out by their intelligence services) and conduct thorough and independent investigations into allegations of human rights violations, such as renditions and secret detentions or ill-treatment. The need to maintain secrecy of intelligence services' activities must not deprive victims access to an effective remedy and reparation.
7. The prevention of terrorism
Measures to prevent terrorism, especially when based on secret intelligence, must be mindful of the fundamental rights of the individuals concerned. Administrative detention, control orders, the freezing of assets and other actions on the basis of terrorist lists, must in the first place be necessary and proportionate, limited in time, non-discriminatory and subject to independent periodic review. Furthermore, those affected must have an effective and speedy opportunity to challenge the allegation before a judicial body.
States should repeal laws authorising administrative detention without charge or trial outside a genuine state of emergency; even in the latter case, States are reminded that the right to habeas corpus must be granted to all detainees and in all circumstances.
States should ensure that immigration law does not serve as a substitute for criminal law in its counter-terrorism efforts and should, in particular, reaffirm their commitment to the principle of non-refoulement. They should not rely on diplomatic assurances or other forms of non-binding agreements to transfer individuals when there is a real risk of serious human rights violations.
The UN Security Council, the Council of the European Union and other organisations using a listing system should urgently comply with basic standards of fairness and due process, including, as a minimum, allowing affected persons and organisations the right to know the grounds of listing and the right to challenge such listing in an adversarial hearing before a competent, independent and impartial body.
8. Reasserting the value of the criminal justice system
States should ensure that their criminal justice law, and the various agencies of the criminal justice system, are ‘fit for purpose’ so that they can meet the long-term challenges posed by terrorism. Priority should be given to efforts to strengthen the capacity of ordinary law enforcement and judicial systems to enforce their existing criminal law and to improve international judicial cooperation. The international community should support such efforts, including by providing technical assistance where needed to strengthen States' ability to investigate complex crimes within a framework of the rule of law.
9. Repudiation of serious human rights violations
The international community should repudiate the serious human rights and humanitarian law violations that have been committed worldwide by many States in the name of countering terrorism. Given the ambiguity that has arisen around previously uncontested truths, it is vital to reiterate that all forms of torture, cruel, inhuman or degrading treatment, extra-ordinary renditions, and secret detention are illegal and unacceptable.
First published on 2009-02-17; Last updated on 2009-02-19.
Following, last December decision of an open verdict at the Jean-Charles de Menezes inquest, the Crown Prosecution Service has found insufficient evidence to prosecute any individual police officer.
Stephen O’Doherty, reviewing lawyer, CPS Special Crime Division, said: (a more detailed letter from Stephen O’Doherty has been posted by the Justice 4 Jean Campaign):
[...] I have now concluded that there is insufficient evidence that any offence was committed by any individual officers in relation to the tragic death of Mr de Menezes.
In reaching this decision, I considered the whether the officers known as C2 and C12 acted in self defence in shooting Mr de Menezes and also whether they lied to the inquest about what was said and done immediately before the shooting. [...]
Vivian Figuierdo's reaction (as part of a Justice 4 Jean Campaign press release):
Today's decision is deeply upsetting to my family. The CPS have not met with us or our lawyers about this, we have been totally shut out of the process again. We are all in shock and simply cannot understand how the deliberate killing of an innocent man and an attempt by the Metropolitan police to cover it up does not result in a criminal offence. We condemn the CPS decision and reject the logic of their argument.
The inquest put the truth out there for all the public to see, but the authorities want us to forget the truth to stop us getting justice. But we will never forget.
After almost four years of tireless campaigning by my family and a struggle which has disrupted all of our lives in unimaginable ways, it is clear to us that the state will continue to block any of our attempts to achieve justice through the legal system. We have therefore decided not to continue with our legal challenges. We now turn our efforts to parliament. Justice for Jean will be done one day and we are determined to follow any route to get it"
The last time a Police officer was convicted following a death in custody was for assault charges in 1971 for a death that occurred in 1969.
Come Monday, before taking a photograph of a police officer, you'll have to mind read whether he or she will suspect the information could be useful to a terrorist. If your mind reading technique is not good, then you could be arrested and end up in the slammer for up to ten years.
Photographers - whether amateurs or professionals - are all too commonly stopped and searched on suspicion of conducting hostile reconnaissance. According to Superintendent David Hartshorn, of the Metropolitan Police Public Order Branch, there have been many arrests of photographers but no conviction yet. Since the end of last year, the police have insisted that 'the Terrorism Act 2000 does not prohibit people from taking photographs or digital images', but from next week the police recommends that 'it is advisable that photographers are careful when taking photographs of police officers'.
What changes is that the Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 brings into force section 76 'offences relating to information about members of armed forces etc', together with Schedule 8 'offences relating to information about members of armed forces etc: supplementary provisions' of the Counter-Terrorism Act 2008. Here's the main part of section 76:
(1) A person commits an offence who— (a) elicits or attempts to elicit information about an individual who is or has been— (i) a member of Her Majesty's forces, (ii) a member of any of the intelligence services, or (iii) a constable, which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or (b) publishes or communicates any such information.
(2) It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action.
The main concerns of photographers, until now, have been with Section 44 stop and searchers. This prompted the National Police Improvement Agency to specifically address this point in the latest revision of its Practice advice on stop and search in relation to terrorism:
2.8 PHOTOGRAPHY
The Terrorism Act 2000 does not prohibit people from taking photographs or digital images in an area where an authority under section 44 is in place. Officers should not prevent people taking photographs unless they are in an area where photography is prevented by other legislation.
If officers reasonably suspect that photographs are being taken as part of hostile terrorist reconnaissance, a search under section 43 of the Terrorism Act 2000 or an arrest should be considered. Film and memory cards may be seized as part of the search, but officers do not have a legal power to delete images or destroy film. Although images may be viewed as part of a search, to preserve evidence when cameras or other devices are seized, officers should not normally attempt to examine them. Cameras and other devices should be left in the state they were found and forwarded to appropriately trained staff for forensic examination. The person being searched should never be asked or allowed to turn the device on or off because of the danger of evidence being lost or damaged.
The Counter Terrorism Act 2008 section 76 extends further the already dangerous section 58 (collection of information) of the Terrorism Act 2000. If you're not familiar with this section, its impact is made only too clear in this article excerpt by lawyer Gareth Peirce:
Defendant after defendant has discovered that a long-forgotten internet search has left an indelible record sufficient for a conviction under the profoundly disturbing section 58 of the Terrorism Act 2000, which allows prosecution for simple possession of an item likely to be useful to terrorists, and carries a sentence of up to 10 years' imprisonment. While the record of use remains permanently, no equivalent reconstruction is available or even required of the mindset of the user at the time. The common elements in each conviction have now become familiar: the defendant had not the slightest idea that such possession was inconsistent with the right to freedom of thought; was not remotely involved in any terrorist activity; and was Muslim.
Now that you have
some understanding of how section 58 of the TA 2000 has been (mis)used,
how do you think the police will want to use the new powers brought in
by section 76? No need to guess. Just check your photo collection and
see if you have any picture that has a police officer in it, or even a
former officer. Or check whether
you've published a friend's picture on your blog or website that
include an police officer in the frame. Imagine yourself, or whoever
took the pic, about to take the same picture next week. Now read the
helpful relevant FAQ
on the Police National Legal Database:
- Question Q717
I want to take some photos in public, is it now illegal?
- Answer
It is not illegal to take photographs or video footage in public places unless it is for criminal or terrorist purposes.
There will be places where you have access as a member of the public, but will have to ask permission or may be prevented altogether. These could include stately homes, museums, churches shopping malls, railway stations and council/government buildings. You need to check the situation out on a case by case basis.
The country is in a heightened state of alert (and will be for many years) because of potential terrorist attacks. So called 'soft targets' are particularly vulnerable. Security staff, the general public and police are much more aware of anyone taking photographs and you may be approached by someone, such as the police, when you are taking photographs near or in potential targets. Generally the police cannot seize the camera or memory card unless you are committing an offence or suspected of terrorist activity.
The taking of photographs of an individual without their consent is a civil matter. Taking a photo of a person where they can reasonably expect privacy could be a breach of privacy laws. The other issue to consider is what you plan to do with the photograph afterwards. If you intend to publish it in any way (on the internet, in a book or at a gallery) then you would need the person's permission.
From Monday 16th February 2009 there is a new offence concerning eliciting information about members of armed forces, police officers and intelligence services which is likely to be useful to a person committing or preparing an act of terrorism, or publishes or communicates information of that kind. does not state that the person who gets the information has to use the information for terrorism purposes, just that the information is likely to be useful to a terrorist.
There is a defence of reasonable excuse under this section and it would be for the suspect/defendant to raise this matter.
It is advisable that photographers are careful when taking photographs of police officers, the intelligence services or members of the armed forces. If an officer suspects that the information gained by the person could be useful to a terrorist, then the photographer could find themselves arrested for this offence and the camera seized, albeit may only be until the facts are clarified. [emphasis added]
Any photographer may end up on the wrong end of this law. An area likely to be strongly impacted is documenting dissent or any behaviour the police is not keen to be witnessed and reported. And this law is not limited to photographers.
A media event 'I’m a Photographer … not a Terrorist' is being organised this Monday 16 February 2009 at 11am outside New Scotland Yard by the National Union of Journalists, the British Journal of Photography, the British Press Photographers’ Association, Mark Thomas, Chris Atkins, Marc Vallée and others: 'The plan is simple, turn up with your camera and exercise your democratic right to take a photograph in a public place.'
UPDATE Follow-up post: Snap a copper and get ten years in the slammer - (mis)interpretations
First published on 2009-02-14; last updated on 2009-02-22.
Security is a trade-off. Five areas where perception of the security trade-off can diverge from reality, as listed by Bruce Schneier in his 2008 Psychology of Security essay:
- The severity of the risk.
- The probability of the risk.
- The magnitude of the costs.
- How effective the countermeasure is at mitigating the risk.
- The trade-off itself.
Nigel Inkster, SIS (a.k.a. MI6) officer from 1975 to 2006 and Assistant Chief and Director of Operations and Intelligence from 2004 to 2006, speaking today at a counterterrorism conference:
Asked what dangers were more serious than terrorism, Mr Inkster suggested that British government planners were more concerned regarding the possible results of global pandemics, or perhaps the worst-case outcomes of climate change.
"We need to keep terrorism in some kind of context," he said. "For example, every year in the UK, more people die in road accidents than have been killed by terrorists in all of recorded history."
Danny Chivers' Risk assessment poem in this month New Internationalist (audio version):
I used to like bees
I'd watch them bumbling through the leaves
And hum along with their good vibrations
Until I learned that they killed more people last year than THE TERRORISTS did.
Now I write letters to the Daily Mail
Demanding strict border controls on the entrances to hives
And random police raids on patches of lavender.Which makes about as much sense
As our attempts
At a notional national defence
Against a terrorist threat
About as dangerous as stepping outside in the wet
(Pneumonia is Britain's fifth biggest killer)I almost feel a kind of pride
In our innocence and trust as we're all taken for a ride
On the paranoia bus with the
Bullet-proof windows firmly closed and every steel door secure
Glancing at the dark-skinned people outside.Mount Snowden kills as many people as terrorism
So let's drag it down to Belmarsh
Hold it without trial for 42 days
Til it confesses to conspiring to undermine our British way
Of life.
Whatever that is.More people are killed by taking the wrong pills than by terrorist attacks
Which means the money that's planned for ID cards, armed guards, putting people behind bars without charge
Would save more lives if spent instead on
Better-labelled jars.You're more likely to be killed by a rare disease
Or win the national lottery
You're more likely to be killed by a hernia
You're more likely to be killed by your furnitureYou're more likely to be done over by your lover
To meet your end at the hands of a friend
You're more likely to commit suicide yourself
Than be killed by the suicide of somebody else.And stress kills thousands every year
So – an ironic twist –
You're more likely to be killed by the fear of terrorism
Than by a terrorist.So how to explain this?
Our government's obsessed
An endless war against a risk
Not properly assessedFor which they need broader state powers to watch you at all hours, CCTV, ID – they don't mean to intrude, but could you include an ample selection of bodily samples? – longer detention, not to mention the need to obtain evidence mysteriously from overseas but let them explain: it doesn't count as torture if somebody elsewhere is doing it for ya, same as having your phone tapped by some information vandal isn't really a scandal because civil liberties must be balanced against the need for greater security, surely you don't really need that jury, with so many new offences in store there's bound to be one or more made just for you, even if you only meant to create peaceful dissent against society's ills, you'll still find yourself on the line out front in a new witch hunt during open season…
But it's definitely all about terror and you'd be making a grave error bordering on treason to suggest that they might want these powers for any other reason.
Well,
I won't be gagged, or tagged and numbered
Won't have my genes and eyeballs plundered
At my own expense for a defence that won't work against a threat that couldn't get much smaller,
They won't get my photograph, my details, my age
(So long as they don't log onto my Facebook page)
And when they show up for me
I won't go quietly
I'll tell them to go out and fight the real enemy
Because sex kills more people than terrorism
And so does pregnancy
So let's drop the terror cops
And swap
The thought police for the sex police.I bet they'll have much better uniforms.
An individual wanted to learn details of the Chiefs of Defence Staff. He went to the authoritative source and sent a freedom of information request to the MOD. This week, the MOD responded by suggesting that Wikipedia is the most authoritative source of information on its staff - the mind boggles:
- there is an accurate list of the information you requested on Wikipedia at the following link:
http://en.wikipedia.org/wiki/Chief_of_th...(United_Kingdom)
This week saw the announcement of FactCheck UK:
Monday 9th February is the launch date for FactCheck UK, a new blogger-driven project that aims to pull together some of the best talent from the British blogosphere and subject the veracity of Britain's politicians and mainstream media to some much needed independent scrutiny.
This is a welcome initiative if it manages to have enough good quality coverage. It is all too common for news media to misunderstand the data they base their articles on. As sources are often not made explicit it can be difficult to check the accuracy of the information when it's unclear or you suspect something may be wrong. I've shown some of these issues in one of my articles about National DNA Database statistics. Often the main issue is finding authoritative sources.
FactCheck UK would benefit from extending its scope to scrutinise blogs with a news and/or political agenda as well; and possibly welcoming non bloggers as contributors too. In the echo chamber of the blogosphere a story originating in one blog is repeated in others and then considered true as it has multiple sources. Few journalists have the time to ensure that at least two sources for the same story are independent... and a meme is created.
At a debate organised by London Calling Photographers, Superintendent David Hartshorn, of the Metropolitan Police Public Order Branch was quick to point out that stops and searches of photographers suspected of conducting hostile reconnaissance have led to many arrests. When I queried whether they had led to any convictions, he said that there had be no conviction, but that there were some cases going to trial that are sub judice.
Taking pictures, filming or even just drawing sketches of buildings is often construed as hostile reconnaissance and risks you being stopped and searched, or even arrested. (Even my innocent doodles were construed by the Police as being a hostile reconnaissance of a tube station.) In its counter terrorism ad campaigns, the Met states that terrorists take photographs and Met officers, as those of other forces, are commonly targeting photographers with tactics such as stops and searches. One hostile reconnaissance case that went to trial was that of an Iraqi who was charged in 2006 for filming Big Ben, the Houses of Parliament and the London Eye, he eventually was found not guilty.
If you are stopped and searched (by the Met) and are unhappy about how the encounter progresses, do write down the names or numbers of the officers involved. The Met is now a bigger employer than the Navy and in case of a complaint, without detailed information it will not spend time to find the officers involved for anything less than a serious matter. Superintendent Hartshorn recommended that when complaining you should be proactive and suggest the outcome you would want to happen if you had a magic wand. Some examples of cases where the Met did make a change as a result of a suggestion included in a complaint would have been more persuasive. Jeff Moore, Chairman of the British Press Photographers' Association, recommended local resolution as the preferred route to solve any dispute. I disagree and suggest that local resolution should be the exception for when the matter is trivial - and in this case you should consider whether it is reasonable to complain. If you do have matter to complain then an investigation will be much more exhaustive and give more options. (You may also want to check out the Independent Police Complaints Commission Making a complaint to the IPCC page.) If you have issues with policies and not individual officers, then don't complain but go ask a question at the Metropolitan Police Authority.
Superintendent Hartshorn reminded the audience of the amount of work his team is handling. In the last rolling twelve months, the Met deployed a quarter million officers to manage 5,600 events - from small ones, such a ministerial visit, to big ones, such as a large anti war demonstration. Apparently, the way these events are handled makes the the Met police a world leader in the policing of public order. The next two years of public order policing will be interesting; highlights include the G20 Summit: Xmas coming early for activists, and industrial disputes in reaction to the downturn in the economy.
Human rights in the civil courts
Thursday 2009-02-19 from 18.30 til 20.30 - College of Law, 14 Store Street, London WC1E 7DE - Admission free
The Haldane Society of Socialist Lawyers runs a series of lectures covering a wide range of topics. In the next instalment, Louise Christian, solicitor and Liz Davies, barrister will talk on Human rights in the civil courts. (There should be more information on the Haldane Society's website, but as I write this its website cannot be accessed as there are some problems with the domain name renewal.)
The convention on modern liberty
Saturday 2009-02-28 from 08:30 til 19:00 - The Institute of Education, 20 Bedford Way, London WC1H 0AL - Admission: Standard £35, Concession £20
(Free satellite conventions in in Belfast, Bristol, Cambridge, Cardiff, Glasgow and Manchester)
The Convention on modern liberty aims 'to bring together a wide and growing range of concerns about the state of fundamental rights and freedoms in this country and publicise the work of the many individuals, groups and organisations deeply involved with them from across the political spectrum. We hope this will generate a wider release of energy among the public that may assist the growth of a movement to take back what has been lost and to help shape a Modern Liberty capable of securing individual and collective freedom at a time of profound uncertainty and change.'
It's a great opportunity. Over a thousand attendees are expected at the main London event. And with more attending the satellite events, it's a rare occasion to mobilise such a large crowd on rights and freedom issues. It is a high profile event that has already garnered lots of publicity in particular in The Guardian, the main media partner (Henri Porter is co-director of the event). With more than a hundred speakers, you are bound to find some you consider worth listening to.
On the flip side, the programme has too much happening in parallel, one can attend only one session in the morning and one in the afternoon. Should one attend sessions they already have some interest in or instead discover something completely different? As these sessions are hopefully an opportunity to participate, the former is the more likely choice. Then there's the issue of cost, it is expensive for an event wanting to attract a whole spectrum of attendees. I queried this by email: 'I looked for info as to what the money the event will collect will be used for but haven't found any such explanation.' This wasn't directly answered, instead I learnt that 'Tickets are heavily subsidised. Concessionary tickets are £20 and all tickets include a sandwich lunch and refreshments'. In his launch speech, Anthony Barnett, co-director of the Convention, made an appeal for financial support while at the same time pointing out the generosity of many professionals offering their service for free; and Henri Porter explained 'The Convention on Modern Liberty is for openness, reform, accountability, scrutiny, trust and fun. It is against the fixing, manipulation, suspicion, spin and self-serving edicts of the political classes.' Why not then publish a summary budget? This would show some transparency and accountability, and would help convince more individuals to purchase tickets and/or donate.
A Carnival on modern liberty was launched to highlight some relevant blog posts in the run up to the Convention on Modern Liberty. The first edition was published at Liberal Conspiracy and the second at Our Kingdom (thanks Tom to select one of my posts). Submit a post to be included in a future edition.
"Several clauses in the Coroners and Justice Bill 2009 concern me, such as the reintroduction of secret inquests and the holding of inquests without juries on national security grounds, but one clause in particular - that has nothing to do with coroners or inquests - I find an extremely grave threat to our privacy. I am talking about clause 152 in Part 8 of the bill, the Information Sharing clause. Furthermore, this clause will directly affect each and every of your constituents, which is not the case for the rest of the bill.
If clause 152 remains as is, it would allow ministers to subvert the Data Protection Act 1998 and use information obtained for one purpose to be used for another. I recommend you read this clause in full, even though it is hidden away towards the end of this huge bill."
This is the start of the letter I sent to my MP last week. Today this bill gets its second reading in Parliament.
Inform yourself about this bill and act in whichever you feel appropriate to ensure its worst clauses are not retained as is. Here are some useful references:
'This single clause is as grave a threat to privacy as the entire ID Scheme. Combine it with the index to your life formed by the planned National Identity Register and everything recorded about you anywhere could be accessible to any official body.
The Database State is now a direct threat not a theory.
Quite apart from the powers in the Identity Cards Act, if Information Sharing Orders come to pass, they could (for example) immediately be used to suck up material such as tax records or electoral registers to build an early version of the National Identity Register. But the powers apply to any information, not just official information. They would permit data trafficking between government agencies and private companies - your medical records are firmly in their sights - and even with foreign governments.'
'The Coroners and Justice Bill provides the first step in a two step process which could allow data in electronic medical records linked with genomic data to be shared with third parties – including private companies and the police – without consent. Once the Bill is adopted ministers in the Department of Health and/or the Home Office will be able to issue a ‘data-sharing order’ to allow a national DNA database of everyone registered in the NHS to be built by stealth.'
'The information sharing provisions in the Coroners and Justice Bill constitute the gravest threat to data protection in the 25-year history of the Data Protection Act, and are among the most wide-ranging and potentially intrusive proposals ever laid before Parliament.
Clause 152 of the Bill will permit an almost limitless range of data sharing opportunities both within government and between commercial organisations'
'Liberty strongly opposes these amendments as the powers it gives are extraordinarily broad and make a mockery of the safeguards contained in the DPA. The amendments would enable the Secretary of State, Treasurer or a Minister in charge of any government department to make an order giving “any person” the right to share information, including personal data, by disclosing it to another person or using the information for a purpose not related to that which the information was initially obtained. Note that the power is not restricted to sharing between government departments as suggested in media reports after this Bill was introduced: it could allow a private company to share personal data so long as an order was made allowing it. [...]
Furthermore, proposed section 50B would allow for any Act of Parliament to be amended by way of secondary legislation. This would therefore allow the order to amend the DPA itself and, on the face of it, amend the Human Rights Act 1998.'
'In our view, the grossly general provisions of Part 8 in no way constitute an adequate set of safeguards against the potential for disproportionate interference with Article 8 that data-sharing orders are likely to involve.'
A few other interesting write ups:
Act now while this is still only a bill.
Entry first published on 2009-01-26; last updated on 2009-01-29
Section 44 not to detect terrorists 'but to reassure Londoners'
Feeling unsafe in your life? Looking for reassurance? The Metropolitan Police Service can help you with a touchy-feely innovation. It's called stop and search.
A new document hints at a shift of emphasis in the Met's strategic vision for counter terrorism stop and search powers. It's going to be a public relations tool.
Section 44 stops and searches were introduced by the Terrorism Act 2000. These powers differ from those of standard stop and search powers, as provided by Section 1 Police and Criminal Evidence Act 1984, in that to use them officers do not need to have reasonable suspicion an offence is being committed.
They can only be invoked in an area or place for which an authorisation has been given by a police officer who is of at least the rank of commander of the Metropolitan Police (for London), and confirmed by the Secretary of State. Authorisations can only last up to 28 days, but they can be renewed ad infinitum, as is currently case for the whole of London.
The Metropolitan Police Service Stop & Search Strategic Committee has recently updated its Standard Operating Procedure (SOP) on Section 44 Terrorism Act 2000; the Metropolitan Police Authority had recommended a review of this document in its Review of police use of counter-terrorism Stop and Search powers in London. This SOP was developed by the Territorial Policing Safer Neighbourhoods unit, first issued on August 1 2007 and later revised to remove Stop codes on December 31 2008. It's been published as part of the Met Freedom of Information Act publication scheme.
Your reporter happened to have saved a much older version prepared just before the London July 7 bombings. It had been compiled by the Territorial Policing Modernising Operations unit for the Demand Management Strategic Committee. This older version initially issued on April 1 2005 and subsequently revised on May 5 2005 is not mentioned at all in the new document. Comparing these two documents shows an evolution in how the Met considers the Section 44 stop and search powers and how it advises its constables to handle them.
Comparing the 'Appropriate Use' section of these two documents shows a change in the purpose of these powers:
Purpose
It is important that officers take every opportunity to detect, deter and disrupt terrorist operations and provide public reassurance.
Essence of section 44
Police officers in uniform are entitled authorised to stop and search people/vehicles to see whether they have 'articles of a kind which could be used in connection with terrorism' and if when no such articles are found then they must be allowed to go on their way.
There's an implicit admission that Section 44 stops and searches do not detect terrorists. This is borne out by the available data. In the financial years 2003/4 to 2006/7, the Met stopped and searched 31,797 pedestrians using the powers of Section 44(2); of these only 79 were arrested in connection with terrorism - less than a quarter of a percent - and even fewer will be convicted. The purpose of deterring is feeble considering the extent to which the Home Office is ready to go to avoid revealing when and where the exceptional powers for Section 44 apply.
If the location of authorised zones and when these are in effect is secret, how can it have a deterrent effect at all? What we're left with is the new belief of the Met that these stops and searches are taking place to provide reassurance to Londoners. The time difference is not as much as in Life on Mars but back when the earlier document was written, officers were entitled as now they're authorised; a much more civilised approach to policing.
New text on the introductory page reinforces that a key change in focus in what the Met wants to achieve with these powers is to be seen to be doing something, to reassure Londoners. Surely this could be better done than by stopping and searching passers-by without reasonable cause?
Introduction
Stop and search powers under Section 43 and 44 Terrorism Act 2000 are used to improve the security of London and enhance community confidence by demonstrating a visible, responsive and proactive style of policing. The exercise of Section 44 powers is to disrupt, deter and prevent terrorism and to help create a hostile and uncertain environment for terrorists who wish to operate in London. Section 43 powers are used as a tactic to detect terrorists.
Strategic vision
Counter Terrorism stop powers, if used appropriately and effectively, will serve to reassure the people of London and in doing so will install trust and confidence of all communities.
Historic evidence
Historic evidence on the methodology of both Irish National and International terrorists indicates that they operate on a pan-London and indeed occasionally a pan-UK basis.
- Terrorists need to travel - meetings, training and planning can take place anywhere.
- Terrorists need transport - they need to move equipment, material and people around.
- Terrorists need to prepare - hostile reconnaissance and surveillance is carried out to plan attacks.
Primary targets
The particular areas where they live, plan, meet and store equipment and arms are generally away from the iconic, financial, crowded places and transportation hubs, which they seek as primary targets.
Vigilance
All staff should must recognise that there is an ongoing daily requirement to be remain vigilant and alert to terrorist related activity wherever they may be based or whatever type of policing activity they are involved in.
The mention of the Section 43 powers right in the introduction is clearly there to increase the awareness of all constables of these other stop and search powers also present in the Terrorism Act 2000. The new short sentence on Section 43 is also were the detection of terrorists reappears, as a tactic.
Section 43 provides powers for the police to search someone they reasonably suspect of being a terrorist for the purpose of discovering relevant evidence. These powers are distinct and should not be confused; this is clarified in a new section titled 'The Encounter':
If after speaking with the person stopped the officer considers a search is still required, then a Section 44 search should be carried out. If the officer has reasonable grounds to search then a section 43 search should be completed.
None of the generally available statistics (such as Statistics on Race and the Criminal Justice System, Home Office Statistical Bulletins and Met Stop and Search Monitoring Reports) that include data on stops and searches separate Section 43 data from overall total. One of the very few relevant statistics appeared in the Metropolitan Police Authority document Counter-Terrorism: The London Debate: from October 2005 to September 2006, the Met conducted 114 Section 43 stops resulting in 13 arrests, none of which were for terrorism-related offences. From this limited data, Section 43 has been particularly inefficient to detect terrorists.
Terrorists do indeed need to travel, transport and prepare. They also need to sleep and eat. As does everyone else. The last annual Met counter-terrorism ad campaign highlighted three dangerous items used by terrorists: mobile phones, houses and cameras. Photographers have been found particularly suspicious lately.
In the new 'The Encounter' section, one of the "Notes to officer" is:
Explain to the person being stopped that they are being stopped as part of the operation to reduce the risk of terrorism in London. Reassure the individual that the stop is a routine part of counter-terrorist policing and it is a preventative power proven to help make London safer from a terrorist attack.
After years of getting poor results in terms of stopping terrorists using the powers of Section 44, is the Met attempting to use these as a public relations tool? Officers conducting the stops and searches may find it difficult to convince us.
(For a more general context see the latest Practice advice on stop and search in relation to terrorism, now produced by the National Policing Improvement Agency on behalf of the Association of Chief Police Officers.)
Read and comment on this article at El Reg...
If you
please hold on requesting the removal of your DNA records and instead do get in touch. I will then pass on your details to this organisation who will give you more details so you can decide whether you want to help out.
During the Parliamentary, debate last month, about the police raid on shadow immigration minister Damian Green's office in the Palace of Westminster, the Leader of the House failed to answer the concerns of several MPs:
Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative): I should like to mention one of the reasons why it is important that the Committee should be able to do its work. My right hon. Friend and I asked the Leader of the House a question at business questions last week, but it has not been adequately answered. We asked whether last week the police were granted access to data belonging to other hon. Members. That has not been properly answered. [Interruption.] No, it has not been properly answered, and the Leader of the House needs to answer it properly for the House.
Theresa May (Shadow Leader of the House of Commons, Parliament; Maidenhead, Conservative): I entirely agree with my hon. Friend. The Leader of the House referred to the fact that Mr. Speaker said that the issue would be looked into, but—I am very happy for the Leader of the House to intervene on me and confirm this—she did not confirm that the police had not had access to the shared drive or the servers. If they had, they would have had the ability to access every Member's correspondence and e-mails. I invite the Leader of the House to intervene on me and confirm that that was not the case. Her silence suggests either that she does not know, or that she is not able to give the House the assurance that it requires, and that is of concern to each and every Member of the House.
SpyBlog suggested its readers contact their MPs to attempt to find out what happened to the Member's private correspondence:
If you have contacted your constituency MP via email in the last 2 years or so, your private correspondence could well have been trawled through by the Metropolitan Police Counter Terrorism Command.
Please risk another email (or a fax or letter) to your MP, e.g. via WriteToThem.com, simply asking them if, as a result of the Damian Green Police raid on Parliament, copies of your confidential email or fax correspondence with your MP, have been seized or rifled through by the Police.
My MP sent me a letter dated 2008-12-15; here's the content of her letter:
Thank you for your email of the 8th December about the presence of police in parliament and the security of my correspondence with you.
I was interested to hear your views on this important matter and I would like to reassure you that none of my correspondence has been affected by the police raid on the office of Damien [sic] Green.
The Speaker has confirmed with MPs that the House of Commons server was not accessed by police during the incident involving Damien Green and in future no access will be given without a warrant. The Speaker has also published a wider draft protocol for future searches of the House of Commons and I enclose a copy for your information.
Please do not hesitate to get in touch with me in the future, on this matter, or any other.
And the enclosed document (this document was OCR'd so any typo may have been introduced in the process and not be present in the original):
MR SPEAKER'S PROTOCOL ON THE EXECUTION OF A SEARCH WARRANT IN THE PRECINCTS OF THE HOUSE OF COMMONS
1. In my statement of 3 December 2008 (OR col 3) I said I would issue a protocol to all Members on the searching of Members' offices. In future a warrant will always be required for a search of a Members' office or access to a Member's parliamentary papers including his electronic records and any such warrant will be referred to me for my personal decision.
2. Although much of the precincts of the House are open to the public, there are parts of the buildings which are not public. The House controls access to its precincts for a variety of reasons, including security, confidentiality and effective conduct of parliamentary business.
3. Responsibility for controlling access to the precincts of the House has been vested by the House in me. It is no part of my duties as Speaker to impede the proper administration of justice, but it is of equal concern that the work of the House and of its Members is not unnecessarily hindered.
4. The precincts of Parliament are not a haven from the law. A criminal offence committed within the precincts is no different from an offence committed outside and is a matter for the courts. It is long established that a Member may be arrested within the precincts.
5. In cases where the police wish to search within Parliament, a warrant must be obtained and any decision relating to the execution of that warrant must be referred to me. In all cases where any Officer or other member of the staff of the House is made aware that a warrant is to be sought the Clerk of the House, Speaker's Counsel, the Speaker's Secretary and the Serjeant at Arms must be informed. No Officer or other member of the staff of the House may undertake any duty of confidentiality which has the purpose or effect of pr--venting or impeding communication with these Officers.
6. I will consider any warrant and will take advice on it from senior officials. As well as satisfying myself as to the formal validity of the warrant, I will consider the precision with which it specifies the material being sought, its relevance to the charge brought and the possibility that the material might be found elsewhere. I reserve the right to seek the advice of the Attorney General and Solicitor General.
7. I will require a record to be provided of what has been seized, and I may wish to attach conditions to the police handling of any parliamentary material discovered in a search until such time as any issue of privilege has been resolved.
8. Any search of a Member's office or belongings will only proceed in the presence of the Serjeant at Arms, Speaker's Counsel or their deputies. The Speaker may attach conditions to such a search which require the police to describe to a senior parliamentary official the nature of any material being seized which may relate to a Member's parliamentary work and may therefore be covered by parliamentary privilege. In the latter case, the police shall be required to sign an undertaking to maintain the confidentiality of that material removed, until such time as any issue of privilege has been resolved.
9. If the police remove any document or equipment from a Member's office, they will be required to treat any data relating to individual constituents with the same degree of care as would apply in similar circumstances to removal of information about a client from a lawyer's office.
10. The execution of a warrant shall not constitute a waiver of privilege with respect to any parliamentary material which may be removed by the police.
11. In view of the concern shown by Members, I am circulating this document without delay, but I shall take into account any representations by Members for its revision and will issue a revised document, should this be necessary.
The Speaker
Keir Starmer, the Director of Public Prosecutions, said last week about whether to bring charges against Damian Green "We have some material, I anticipate more. We are now at a very, very sensitive stage. But it is not a decision that can be hurried."
