Mon, 31 May 2010

Confusing capture and retention

Information capture and retention are two very different concepts that too often get mixed up. Many politicians have appeared particularly confused by these two concepts during the debates on the National DNA Database. Cases where a match happened when the suspect's DNA was loaded were wrongly used to justify retention. Exonaration of innocents was also suggested as another justification for retention when a new DNA sample can always be taken from a detained innocent.

Several articles recently commented on the retention, by parts of the NHS, of blood test taken from babies aged between five and eight days old to screen for serious conditions. Action on Rights for Children (ARCH) explains the issue on its blog: 'Mothers are asked for consent, but usually don’t realise that if they consent to the tests (and they would be unwise to refuse these) they are also consenting to long-term storage – and in any case, few women who have just given birth are compos mentis enough to think through the issues, so it’s hardly valid consent.'

NHS Blood Spot Card
NHS Blood Spot Card (image from the NHS website.)

Details on the collection of these blood spots had been included right at the top of the excellent Privacy guide for parents (pdf) prepared by Terri Dowty at ARCH for the launch of the film Erasing David:


What is it? Soon after birth, a tiny amount of blood is taken from a baby’s heel and transferred to a ‘Guthrie Card’ as a series of small spots. These are used to carry out routine checks for any potentially serious health problems. You can get more information here:

In England and Wales babies' blood spots are stored for a minimum of five years. Some hospitals keep them until adulthood.

Will you know it’s happening? Yes, parents are asked for their consent to this procedure.

Pros and Cons: the tests are undoubtedly very important but once you have given consent to any of them, you have no further control over whether the bloodspots are used for other research, nor for how long the Guthrie Card is kept. This is in contrast to many other countries. In Scotland, for example, parents can specify that the Card is only kept for 12 months:

What you can do: If you believe that you should have the option of requesting destruction of the Card once tests are complete, talk to other parents in your area and consider making a joint approach to your MP to raise your concerns.

I haven't found the rate of consent given by new mothers but as this screening is, according to the NHS, 'to identify babies with these conditions early so they can be treated quickly to prevent severe disability or even death' I'd expect it to be very high; new mothers surely want to give the best chance to their babies. According to The Sunday Times, more than 700,000 babies are screened each year. By conflating consent to take the blood samples, to do the tests and to retain the Guthrie Cards, the NHS has strong armed long term retention of these blood samples creating another national DNA database without informed public debate.

Even though the Code of Practice recommends a retention 'minimum of five years as part of quality management', Marie Woolf wrote in The Sunday Times that 'Central Manchester University Hospitals Trust has 1m samples in storage dating from 1984. About 250,000 further samples are stored in the hospital’s laboratory. It plans to store them indefinitely. Cambridge University Hospitals Trust retains samples for 18 years. It stores 400,000 samples at Endex archives in Ipswich, with a further 62,800 samples kept in hospital labs. Great Ormond Street hospital in London began storing samples in 1990 and preserves them for at least 20 years. It screens and stores the samples of about 120,000 babies a year. It confirmed that it had occasionally handed samples to coroners but not to the police.'

The NHS Code of Practice for the Retention and Storage of Residual Spots complete section on retention explains:

Failure to diagnose an affected child through screening may require investigation by re-testing of the original blood spots and is part of quality management. All newborn blood spots will be retained for a minimum of five years as part of quality management. Retention thereafter will depend on the resources and requirements of the screening laboratory and/or health department.

If there's a need for re-testing, surely another blood sample could be taken from the baby (or child, if several years later). The last sentence of this section is telling, budgets and interest of the labs, not medical condition and privacy of the child are the drivers for retention. The NHS does suggest better rationales: research on anonymised blood spots is useful to monitor the health of the general population, and to develop new equipment and tests and for forensic works. However, even for these use cases, there's no need for long term retention. The only listed rationale that would justify an indefinite retention is to help police identify missing and dead individuals. Not a common occurrence, and one that would require a public debate. As a society do we find this limited benefit justifies a universal blood bank?

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Tue, 18 May 2010

Last November, the Islington Borough Police set up a Stop and Search Monitoring Group to get regular feedback from members of the public. I joined this group two months ago. So far, I have only attended one meeting of the group. Most of it was dedicated to a presentation by Bevan Powell, Metropolitan Black Police Association, about two schemes: Young Leaders for Safer Cities (YLFSC) and Voice Of the Youth And Genuine Empowerment (Voyage). None of these schemes are currently planned for Islington, but they gave a context for discussing a series of workshops on stop and search.

The Inspector, Stop and Search lead for Islington Police, who set up the monitoring group organised a workshop on stop and search at the North London Central Mosque on 2010-05-14. He was accompanied by his Chief Inspector. Two Safe Neighbourhood Team officers attended as well as three independent members of Islington's Stop and Search Monitoring Group. About twenty kids and young men aged from 10 to 24-year old with the majority between 11 and 14-year old were present. They were very motivated and attentive, asking many relevant questions.

The workshop started with an introduction by the Inspector stressing that the aim of the workshop was to explain the stop and search tactic, and to get some feedback. Those who have had experience(s) of being stopped and searched then briefly talked about what happened:

This was followed by a series of four role play exercises. In the first two, the two police officers acted as police officers on patrol while two kids acted as members of the public being stopped and searched:

For the next two exercises, two kids acted as police officers and the police Inspector acted as a member of the public being stopped and searched. The 'officers' were briefed that an Asian man with a white jacket (description matching that of the Inspector) had been seen at the robbery. At some point during the stop and search, the 'officers' were further instructed that someone had been arrested for the robbery, and hence their suspect was innocent of this crime.

Participants were asked why do they think the police use stop and search tactics. Here are some of the answers:

The Inspector added that the stop and search powers are used to search for knives, drugs, stolen property, offensive weapon, equipment and suspicious individuals in hotspots. When someone is stop and searched the officers must say who they are, their police station, the grounds for the search, and give a copy of the form filled in during the search. If plain cloth officers are conducting a stop and search in addition to identifying themselves they must show their warrant card (though no warrant card was shown so how does one knows what they look like and if they're genuine was left as an exercise.)

The form normally offered at the end of a stop and search may not be given there and then in section 60 (S60) of the Criminal Justice & Public Order Act 1994 situation as there may no time for doing so. The form can be requested during the next 12 months (section 1(9) of the Crime and Security Act 2010 will this to three months if it come into force). The form is not a criminal record, there's nothing to worry about (it was not mentioned that the information collected during the stop and search does end up in the CRIMINT criminal intelligence database*). The police also use stop and account to just have a chat with you.

The Inspector pointed out that the UK was exceptional in having well codified stop and search powers. In most other countries, the powers of arrest are used when a stop and search would be enough. These powers are well defined in comparison to the old 'Sus' law. (There was no mention that an arrest in England and Wales has much more severe consequences than in many other countries, in particular with having one's DNA profile ending on the National DNA Database. Also several stop and search powers do not even require any suspicion, namely section 60 of the Criminal Justice & Public Order Act 1994, and section 44 (S44) and schedule 7 of the Terrorism Act 2000.)

The conclusion was that the police will use the stop and search powers but need to use them fairly so you feel safe in your community. It was expressed that the number of stabbings in Islington has gone down in over the past years. (There may not be a link between stop and search and reduction in number of stabbings; criminologist Marian Fitzgerald pointed out that during the same period, the number of stabbings had gone up in Southwark though Southward Borough Police had used S60 stop and search powers more often than Islington Borough Police.)

Many questions were asked, most of them answered, and much feedback offered:

After two busy hours, the workshop was formally closed. Discussions still continued briefly afterwards showing how concerned kids and teenagers are with stop and search, and the interest this workshop created. The role play exercises were an efficient tool to show the difference made by remaining calm in encounters such as stop and search.

Even though the participants may not have understood all the subtleties of all the different powers, they made several comments about needing a better reason for stop and searches. This hints at the problems associated specifically with stop and search powers that do not require reasonable grounds. I was surprised that the Inspector did not mention that officers conducting a stop and search should mention the act authorising the power used. The audience was too young to go into legal details, but stating the law authorising their action does help in furthering confidence in the police. Another surprise was that no-one asked about whether they had to give their names when stopped and searched; in my experience this is one of the most common question of older audiences.

All those who talked about having been stopped and searched mentioned one of the reason given was their 'suspicious look'. It is possible that they misremembered the officers stating instead they were stopped and searched because of their 'suspicious behaviour'. This may not be racial profiling, but it is a serious issue which I hope Islington police will investigate further and report on at a future meeting of the monitoring group. Lastly, most of those stopped and searched didn't take the form, even though it was usually offered to them. Hopefully this workshop will have given them the confidence to take a copy of it, if or when they are next stopped and searched. This is an essential step in making the police officers accountable.

* Update (2010-05-24): I received the following correction from Islington Borough Police:

One thing you mention with regards the CRIMINT- Intelligence database is inaccurate. The 'Stops Data base' is not directly linked to the CRIMINT. Only if an officer believes there is useful intelligence connected to the stop is the stop then linked to the actual CRIMINT Intelligence system. The vast majority of stops are not entered onto the CRIMINT Intelligence database.

Further details about the reporting of stops and searches is contained in Notice 27/2007 from the Met Territorial Policing Headquarters (TPHQ) Stops and Searches Team (obtained on 2009-06-17 using the Freedom of Information Act):

Prevention of Double Keying

It has become common practice across the Metropolitan Police Service for data from the Form 5090 to be entered into CRIMINT in addition to the Stops Database. This is an unnecessary duplication of work and effort as all information on the Stops Database is contained within the Corporate Data Warehouse and is fully searchable through the Integrated Information Platform which every Borough Operational Command Unit has access to.

It is accepted that officers will, on occasions, glean information as a result of a stop and search/encounter that cannot be captured on the Form 5090 or placed on the Stops Database. Officers must create a separate CRIMINT entry in these circumstances, on all other occasions the stop will be recorded on the Stops Database alone.

Officers should ensure the Stops Database is populated with as much information as possible to allow detailed searches to be performed.

Update (2010-06-09): Emma Norton has posted a concise recap on Liberty Central of the main stop and search powers and what information officers must give you.

First published on 2010-05-18; last updated on 2010-06-09.

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Sat, 15 May 2010

In 'the times in which we live' humour is criminal

Paul Chambers has been convicted for writing a silly tongue-in-cheek message, a joke, on his Twitter feed. 'The message was “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!” This was in response to a news feed that he had just received that the airport was closed due to the weather conditions prevailing at that time.' He had booked a flight for the following week to meet his partner.

He was prosecuted under section 127(1) of the Communications Act 2003 for sending "by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character". District Judge Jonathan Bennett after a hearing at Doncaster Magistrates Court, found that the message was 'was of a menacing nature in the context of the times in which we live.'

Paul Chambers now has a criminal conviction, lost his job, and was ordered to pay a £385 fine, a £15 victims surcharge (which victim?) and £600 costs, all for writing a joke - however poor you may find it - because of the times in which we live humour is too dangerous a weapon. That means that an email, posting a blog post, comment to an article, etc. construed - in the times in which we live - to be menacing (or grossly offensive, indecent or obscene) can be enough to get a criminal record. The times in which we live are also justification to stop and search anyone without reasonable suspicion, use secret evidence or national security reason to convict individuals without them knowing why, keeping the DNA of innocents, etc.

Paul Chambers wrote about what happened to him in the Guardian: My tweet was silly, but the police reaction was absurd. His partner wrote a guest post on Jack of Kent about her experience: Paul Chambers: Guest Post by CrazyColours.

Legal blogger Jack of Kent has written extensive analysis of worrying aspects of this case, in particular:

You can donate to Paul's legal and appeal fund at the Twitter Joke Trial Fund. He has 21 days to decide whether to appeal.

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Thu, 13 May 2010

Seven years with the IPCC

During a visit to the Independent Police Complaints Commission (IPCC) I learn it has a seven year retention policy. This means my IPCC complaint files will be destroyed in 2014.

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Wed, 05 May 2010

Secret evidence never to be used in ordinary civil trials

This week, the Court of Appeal has established that 'closed material', i.e. secret evidence, can never be used in ordinary civil trials. The government has been attempting to use secret evidence more and more making a mockery of the right to a fair trial. For justice to be served, an accused person must know the case against him and be able to scrutinise and challenge the evidence used against him in a fair, open and public hearing. This ruling makes it very clear how judges consider both the importance of fair civil trials and of the risk of temporary emergency legislation limiting civil rights:

69. It is nonetheless tempting to accept that there may be the odd exceptional ordinary civil claim, where the closed material procedure would be appropriate. "Never say never" is often an appropriate catchphrase for a judge to have in mind, particularly in the context of common law, which is so open to practical considerations, and in relation to civil procedure, where experience suggests that unpredictability is one of the few dependable features. However, this is one of those cases where it is right for the court to take a clear stand, at least in relation to ordinary civil proceedings. Quite apart from the fact that the issue is one of principle, it is a melancholy truth that a procedure or approach which is sanctioned by a court expressly on the basis that it `is applicable only in exceptional circumstances nonetheless often becomes common practice.

70. The importance of civil trials being fair, the procedures of the court being simple, and the rules of court being clear are all of cardinal importance. It would, in our view, be wrong for judges to introduce into ordinary civil trials a procedure which (a) cuts across absolutely fundamental principles (the right to a fair trial and the right to know the reasons for the outcome), initially hard fought for and now well established for over three centuries, (b) is hard, indeed impossible, to reconcile satisfactorily with the current procedural rules, the CPR [Civil Procedure Rules], (c) is for the legislature to consider and introduce, as it has done in certain specific classes of case, where it considers it appropriate to do so, (d) complicates a well-established procedure for dealing with the problem in question, namely the PII [public interest immunity] procedure, and (e) is likely to add to the uncertainty, cost, complication and delay in the initial and interlocutory stages of proceedings, the trial, the judgment, and any appeal.

Leigh Day & Co and Reprieve, who both acted for for Binyam Mohamed summarise this failed government's attempt to defend Guantanamo torture claims with secret evidence:

The Court of Appeal has today “firmly and unambiguously” rejected the government’s argument that it is open to a Court, in the absence of statutory power, to order a “closed material procedure” in relation to the trial of an ordinary civil claim, such as the claims of former Guantanamo detainees brought against the British Security Services and various government departments for alleged complicity in their torture and maltreatment over several years.

On 18 November 2009, in a highly controversial judgment, Mr Justice Silber ruled that in principle it was possible for a Court to allow a party to rely on closed evidence and closed pleadings in a civil claim for damages. As the law currently stands, if the government successfully claims “public interest immunity,” excusing them from disclosing material in the civil courts (for instance, on the grounds of national security) they are then not allowed to rely on the material. The government’s proposals would have meant that they would be able to rely on such evidence, the judge trying the case would be able to see it and make a judgment dependant on such evidence but the other party and their legal team would not be able to see it, respond to it or cross-examine witnesses on it . This was particularly troubling in the context of such serious allegations, leading the Claimants to appeal against the judgment.

Today, Lord Neuberger (Master of the Rolls), Lord Justice Maurice Kay and Lord Justice Sullivan unanimously agreed with the Claimants that such a procedure would undermine some of the most fundamental principles of the common law and fly in the face of the Civil Procedure Rules.

Their Lordships referred to the “cardinal requirement that the trial process must be fair, and must be seen to be fair… which under the common law means that a trial is conducted on the basis that each party and his lawyer, sees and hears all the evidence and all the argument seen and heard by the Court.” They also referred to another fundamental principle of English law that a party to litigation should know the reasons why he won or lost.

Their Lordships commented that

“[i]f the court was to conclude after a hearing, much of which had been in closed session, attended by the defendants, but not the claimants or the public, that for reasons, some of which were to be found in a closed judgment that was available to the defendants, but not the claimants or the public, that the claims should be dismissed, there is a substantial risk that the defendants would not be vindicated and that justice would not be seen to have been done. The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.”

Speaking after the judgment was delivered today, Sapna Malik, Partner at Leigh Day & Co, acting for Binyam Mohamed said:

“We are delighted that the Court of Appeal has fully accepted the Claimants’ arguments that the government has been seeking to introduce, via the backdoor, unconstitutional and manifestly unfair measures to defend these most serious of allegations, which the Courts must be emphatically resist.”

Clive Stafford Smith, Director of Reprieve, who acted for Binyam Mohamed in the United States, said:

“Perhaps the most dangerous legacy of the ‘War on Terror’ is a creeping secrecy that threatens to shutter the workings of British justice away with access limited to a privileged few. We applaud the Court of Appeal’s excellent decision to keep our courts open, so that the British public may continue to see justice done in their name. It is crucial that our government accept this ruling, and stop hiding the mistakes of the ‘War on Terror’ years. We cannot learn from history unless we know what it is.”

The Coalition Against Secret Evidence (CASE) petition asking 'the Prime Minister to ensure that everyone in the United Kingdom has the right to a fair trial by ending the use of secret evidence to obstruct the judicial process.' will reopen for signatures upon the formation of the Government following the General Election and close by 2010-06-03. If you haven't done so yet, sign the petition when it reopens. As of when the Number10 petition site temporarily closed to signatures, this petition had collected 298 signatures putting it in the top 7% most popular open petition by number of signatures.

Update: Adam Wagner, in a post on the UK Human Rights Blog, mentioned two other rulings about secret evidence: 'The Court of Appeal has told the Government three times in 24 hours that it cannot keep evidence secret in civil proceedings. Similar reasoning was applied in three different contexts; the employment tribunal, a case relating to Iranian nuclear proliferation and a claim for damages for foreign torture.'

Update: Anya Proops in the Panopticon blog also published a post summarising these three judgments and concludes that '[These judgments] also confirm that a distinction is to be drawn between those cases where there is a specific statutory or Parliamentary authority for a closed material procedure to be adopted (Tariq and Bank Mellat) and those cases where no such authority exists (Al Rawi). In respect of the latter cases, the Court of Appeal has effectively held that: (a) in general, the only procedural course available to the State is to make an application for evidence to be excluded under the PII procedure; although (b) there may be cases where exceptionally third party interests or the public interest warrant a different approach being adopted.'

Update: The petition is now closed and awaiting a response from the new administration. It closed on 2010-06-03 with 298 signatures. It is in the 10% most popular closed petitions (2,956 out of 29,701).

First published on 2010-05-05; last updated on 2010-06-06.

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