The National DNA Database (NDNAD) Ethics Group (EG) has just published its third annual report, three months after it was completed in April 2010. It makes five recommendations:
1. To accept the fundamental need for prospective studies to ensure that key issues of the proportionality and relevance of the various uses/categories of individuals within the DNA database are illuminated by robust statistical information.
2. The effectiveness of the NDNAD in solving crime needs to be addressed with a proper statistical/evidence basis for any conclusions.
3. The national DNA Database strategy Board and the NPIA should work with the EG towards an embedding of ethical considerations at all stages in the use, obtaining and retention of DNA samples and profiles.
4. The appeals process against decisions not to delete a profile from the database should be reviewed to ensure that the cost of an application does not act as an unreasonable bar to redress. Consideration should be given to referring such decisions to a specialist tribunal (such as that under the Regulation of Investigatory Powers Act) rather than panels of magistrates across the country who may very rarely consider such a case in practice.
5. The Database should be supported by a strong governance framework and there should be a clear and transparent accountability for its operations.
This short report (20 pages) describes the work done by the Ethics Group in the year finishing March 2010 and how its earlier recommendations have been handled. This reveals a few less well-known details about DNA databases and what's in store. Some such items clearly need much more public awareness (emphasis added):
In other news the March 2010 update of the Forensics21 programme explains:
The contract for the supply of DNA sampling kits has been awarded to the Forensic Science Service Ltd (FSS). Orders for DNA sampling kits can be placed with FSS through the DNA Sampling Kits framework agreement. By simply referencing the framework on any orders placed forces will benefit from the new reduced price of £1.95 - a price that will offer a considerable cost saving to all.
The final allocation of 9-series barcodes for PACE DNA sampling kits was made at the end of January 2010. From now on 3-series barcodes will be issued for PACE DNA sampling kits. In addition to the change in barcode series, the forms inside all DNA sampling kits used for the collection of demographic data now ask for less information. The Volunteer DNA sampling kit is being phased out and replaced by the Elimination DNA sampling kit. Information about a new method of taking a DNA sample from a volunteer and its subsequent use, will follow shortly.
This reduced price is just for a sampling kit. For each individual whose DNA is taken, you then need to add the cost of processing the DNA sample to obtain a profile, of storing the sample, retaining the profile, backing up the database, staff cost, etc.
The government has yet to give details on its promise to adopt the Scottish approach to DNA retention.
Ian Tomlinson, a man walking home was bitten by a police dog, struck with a baton and then pushed very strongly in the back by a police officer, and fell. Members of the public helped him. He died. This time, the violent actions of a police officer and the inaction of his colleagues were filmed, not just by CCTV, but also by a passer-by and published for the whole world to witness.
The Crown Prosecution Service has decided not to prosecute the police officer. The reason: 'irreconcilable conflict' between the three post-mortems. The first one found the death 'consistent with natural causes', the two others found the death was 'the result of abdominal haemorrhage from blunt force trauma to the abdomen, in association with alcoholic cirrhosis of the liver'.
The pathologist who conducted the fist post-mortem has been suspended from the Home Office register of forensic pathologists while he is being investigated by the General Medical Council for 'allegations that, whilst working as a Consultant Forensic Pathologist Dr Mohmed Patel's conduct in carrying our four post mortems was irresponsible and not of the standard expected of a competent Home Office registered forensic pathologist and that in one case his conduct was liable to bring the profession into disrepute.'
No prosecution gives a very wrong signal to violent police officers. That this happened as a consequence of choosing as the initial pathologist someone who has allegations against him, further rewards wrong behaviour. A police officer was last convicted for assault charges following a death in custody in 1971.
The Ian Tomlinson Family Campaign has launched a Campaign Fighting Fund to help the Tomlinson family in its fight for justice.
The coalition government has repeatedly promised it will follow the Scottish approach to change the rules for DNA retention. The coalition negotiations agreements reached in May listed 'Adopting the protections of the Scottish model for the DNA database' as one of its measures in the civil liberties section. Nick Clegg, soon after, confirmed that 'the DNA database [will be properly regulated], with restrictions on the storage of innocent people's DNA', and a month ago, Theresa May hinted that the process to create this new legislation has started:
As part of the development of a DNA retention model that provides the protections of the Scottish model, we are examining a range of options before bringing forward detailed proposals to put in place a system which provides protection to the public while respecting the rights of those who have been arrested for but not convicted of an offence.
Costs will be taken into consideration as part of the policy development process.
At no point this Scottish model has been explained and as usual in such situations, confusion leads to misinformation and the quality of the debate is lowered. For instance, the information sheet distributed by the Civil Liberties Panel of the Metropolitan Police Authority at its public meeting on the use of DNA in policing contained incorrect and misleading information in the note explaining the Scottish model.
The Scottish approach to the retention of DNA samples and profiles is defined in sections 18 and 18A of the amended Criminal Procedure (Scotland) Act 1995. As a public service I'll summarise the gist of these sections here and reproduce them in full in a bootnote.
If this model is incorporated in UK legislation, then the DNA profiles of all innocents, bar a few charged for serious sexual and violent offences will no longer be retained in England, Wales and Northern Ireland. No draft law has been published yet and no timetable announced.
Seven outstanding issues
In The DNA Database: what next? (pdf) briefing document, GeneWatch UK highlights six outstanding issues that need to be addressed before new legislation is adopted:
- Will the new law ensure that people’s records on the Police National Computer (PNC) are deleted at the same time as people’s records on the DNA and fingerprint databases?
- When does the Government expect to have the new law in place?
- What will happen to people who have cautions or old convictions for minor offences? Their records used to be deleted after five or ten years but are now kept indefinitely.
- Will there be a system of independent oversight to make sure that the police delete people’s records when they are supposed to?
- Will the Government review whether some DNA samples are being collected unnecessarily, when they are not relevant to solving the alleged crime?
- Will the new law contain tighter restrictions on how people’s stored DNA records can be used?
Check out the pdf for a detailed backgrounder of each of these issues. The first one is essential as the PNC is accessible by many organisations, including 56 non-police bodies. A related aspect, not included in the briefing, concerns the DNA report summary that is part of PNC records. These summaries include a marker for the status of the DNA sample. This information, that is accessible to all those who have access to PNC records, may be damaging especially if incorrect. For instance, for a while this marker in the DNA report summary of my PNC record was 'Confirmed', meaning 'on the database and a conviction has been achieved' even though I had no conviction (I was never even charged).
I would add at least a seventh item to GeneWatch's list: 'Will there be regular peer-reviewed publication of statistics and evidence-based analysis about the efficacy of DNA retention?' Reports published to justify options suggested by the previous government were of low quality, full of errors and not always relevant. To have a proper debate about what should be the use of DNA in policing with both aims of reducing crime and protecting our civil liberties, we need to have facts that can be trusted and inform this debate. For instance, while the previous government pushed for long retention periods with dubious arguments, it never arranged to publish data on how long DNA profiles of crime scenes and individuals had been retained, per crime type, when a DNA match or detection occurs. Another example: it is known the percentage of recorded crimes which involve a DNA detection is less than 0.4%, but not how many lead to convictions and whether DNA was even essential. There are few facts and much speculation. Hard evidence must be required to justify any measure that risk affecting innocents.
Bootnote Until the legislation changes, the exceptional case procedure is the only way to get off the National DNA Database. (The Crime and Security Act 2010 received Royal Ascent but none of its sections concerning the DNA database have come into force and now they won't.) The website Reclaim your DNA offers a step-by-step guide for innocents to request to be taken off this crime-related intelligence database and ensure that their personal genetic information samples are destroyed. Chief constables may claim that you need to wait until a change of guidelines; this is disingenuous as they have the power to destroy DNA samples and associated records.
Bootnote Sections 18 and 18A of the Criminal Procedure (Scotland) Act 1995
18. Prints, samples etc. in criminal investigations. —
(1) This section applies where a person has been arrested and is in custody or is detained under section 14(1) of this Act.
(2) A constable may take from the person, or require the person to provide him with, such relevant physical data as the constable may, having regard to the circumstances of the suspected offence in respect of which the person has been arrested or detained, reasonably consider it appropriate to take from him or require him to provide, and the person so required shall comply with that requirement.
(3) Subject to subsection (4) below and section 18A of this Act, all record of any relevant physical data taken from or provided by a person under subsection (2) above, all samples taken under subsection (6) or (6A) below and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction or an order under section 246(3) of this Act.
(4) The duty under subsection (3) above to destroy samples taken under subsection (6) [F6or (6A)] below and information derived from such samples shall not apply—(a) where the destruction of the sample or the information could have the effect of destroying any sample, or any information derived therefrom, lawfully held in relation to a person other than the person from whom the sample was taken; or (b) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held by or on behalf of any police force in relation to the person.
(5) No sample, or information derived from a sample, retained by virtue of subsection (4) above shall be used—(a) in evidence against the person from whom the sample was taken; or (b) for the purposes of the investigation of any offence.
(6) A constable may, with the authority of an officer of a rank no lower than inspector, take from the person—(a) from the hair of an external part of the body other than pubic hair, by means of cutting, combing or plucking, a sample of hair or other material; (b) from a fingernail or toenail or from under any such nail, a sample of nail or other material; (c) from an external part of the body, by means of swabbing or rubbing, a sample of blood or other body fluid, of body tissue or of other material; (d) . . . .
(6A) A constable, or at a constable’s direction a police custody and security officer, may take from the inside of the person’s mouth, by means of swabbing, a sample of saliva or other material.
(7) . . . .
(7A) For the purposes of this section and sections 19 to 20 of this Act “relevant physical data” means any—(a) fingerprint; (b) palm print; (c) print or impression other than those mentioned in paragraph (a) and (b) above, of an external part of the body; (d) record of a person’s skin on an external part of the body created by a device approved by the Secretary of State.
(7B) The Secretary of State by order made by statutory instrument may approve a device for the purpose of creating such records as are mentioned in paragraph (d) of subsection (7A) above.
(8) Nothing in this section shall prejudice—(a) any power of search; (b) any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or (c) any power to take prints, impressions or samples under the authority of a warrant.
18A Retention of samples etc.: prosecutions for sexual and violent offences. —
(1) This section applies to any sample, or any information derived from a sample, taken under subsection (6) or (6A) of section 18 of this Act, where the condition in subsection (2) below is satisfied.
(2) That condition is that criminal proceedings in respect of a relevant sexual offence or a relevant violent offence were instituted against the person from whom the sample was taken but those proceedings concluded otherwise than with a conviction or an order under section 246(3) of this Act.
(3) Subject to subsections (9) and (10) below, the sample or information shall be destroyed no later than the destruction date.
(4) The destruction date is—(a) the date of expiry of the period of 3 years following the conclusion of the proceedings; or (b) such later date as an order under subsection (5) below may specify.
(5) On a summary application made by the relevant chief constable within the period of 3 months before the destruction date the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.
(6) An application under subsection (5) above may be made to any sheriff—(a) in whose sheriffdom the person referred to in subsection (2) above resides; (b) in whose sheriffdom that person is believed by the applicant to be; or (c) to whose sheriffdom the person is believed by the applicant to be intending to come.
(7) An order under subsection (5) above shall not specify a destruction date more than 2 years later than the previous destruction date.
(8) The decision of the sheriff on an application under subsection (5) above may be appealed to the sheriff principal within 21 days of the decision; and the sheriff principal's decision on any such appeal is final.
(9) Subsection (3) above does not apply where—(a) an application under subsection (5) above has been made but has not been determined; (b) the period within which an appeal may be brought under subsection (8) above against a decision to refuse an application has not elapsed; or (c) such an appeal has been brought but has not been withdrawn or finally determined.
(10) Where—(a) the period within which an appeal referred to in subsection (9)(b) above may be brought has elapsed without such an appeal being brought; (b) such an appeal is brought and is withdrawn or finally determined against the appellant; or (c) an appeal brought under subsection (8) above against a decision to grant an application is determined in favour of the appellant, the sample or information shall be destroyed as soon as possible thereafter.
(11) In this section—“the relevant chief constable” means—(a) the chief constable of the police force of which the constable who took or directed the taking of the sample was a member; (b) the chief constable of the police force in the area of which the person referred to in subsection (2) above resides; or (c) a chief constable who believes that that person is or is intending to come to the area of the chief constable's police force; and “relevant sexual offence” and “relevant violent offence” have the same meanings as in section 19A(6) of this Act and include any attempt, conspiracy or incitement to commit such an offence.
It may not be obvious from a naive reading of Section 18A(2) whether that condition for retention applies when someone is arrested or charged. The correct reading is that there can be retention only when someone has been charged for 'a relevant sexual offence or a relevant violent offence'. The exact meaning of when criminal proceedings are instituted is defined in section 15(2)(c) of the Prosecution of Offences Act 1985 (thanks to L for this reference):
(2) For the purposes of this Part, proceedings in relation to an offence are instituted— [...] (c) where a person is charged with the offence after being taken into custody without a warrant, when he is informed on the particulars of the charge;
Powers to stop and search anyone and everyone without any reasonable suspicion, on the off chance that a random pedestrian may be a terrorist, have been suspended. These powers, section 44 of the Terrorism Act 2000, have been used to harass people from ethnic minority communities (black men and young Muslims in particular), photographers, peaceful protesters and more.
Confirmation from the European Court of Human Rights, two weeks ago, that it had rejected the British government’s final appeal over section 44 stop and search powers was cause for celebration, and 'Photographers not terrorists' met in front of New Scotland Yard (see pictures). The court in the case brought by Kevin Gillan and Pennie Quinton found 'that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention.'
Last week, Theresa May, the Secretary of State for the Home Office finally decided to halt the use of these stop and search powers. She made the following short statement in Parliament:
On Wednesday last week, the European Court of Human Rights ruled that its judgment in the case of Gillan and Quinton is final. This judgment found that the stop and search powers granted under section 44 of the Terrorism Act 2000 amount to the violation of the right to a private life. The Court found that the powers are drawn too broadly—at the time of their initial authorisation and when they are used. It also found that the powers contain insufficient safeguards to protect civil liberties.
The Government cannot appeal this judgment, although we would not have done so had we been able. We have always been clear in our concerns about these powers, and they will be included as part of our review of counter-terrorism legislation.
I can, therefore, tell the House that I will not allow the continued use of section 44 in contravention of the European Court’s ruling and, more importantly, in contravention of our civil liberties. But neither will I leave the police without the powers they need to protect us.
I have sought urgent legal advice and consulted police forces. In order to comply with the judgment—but to avoid pre-empting the review of counter-terrorism legislation—I have decided to introduce interim guidelines for the police. The test for authorisation for the use of section 44 powers is, therefore, being changed from requiring a search to be “expedient” for the prevention of terrorism, to the stricter test of its being “necessary” for that purpose; and, most importantly, I am introducing a new suspicion threshold. Officers will no longer be able to search individuals using section 44 powers; instead, they will have to rely on section 43 powers, which require officers to reasonably suspect the person to be a terrorist. And officers will only be able to use section 44 in relation to searches of vehicles. I will only confirm these authorisations where they are considered to be necessary, and officers will only be able to use them when they have “reasonable suspicion”.
These interim measures will bring section 44 stop-and-search powers fully into line with the European Court’s judgment. They will provide operational clarity for the police. And they will last until we have completed our review of counter-terrorism laws and taken any relevant action arising from that review.
The first duty of Government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties. I believe that the interim proposals I have set out today give the police the support they need and protect those ancient rights. I commend the statement to the House.
Powers to make everyone a suspect don't cut crime
It is refreshing to hear a Home Secretary considering the protection of our civil liberties a cross-political duty. This is particularly important when considering additional powers the police may ask for. The final ruling of the European Court of Human Rights obviously motivated the government to make such an announcement. However widespread concerns about the overuse of these powers, their lack of effectiveness (much less than one percent resulted in arrest and even fewer in conviction; 'very few arrests result for terrorist related offences'), and settlements obtained for wrongful use of the powers were other incentives for the government to reach such a position.
[...] Finally, the shadow Home Secretary said to me that I, as Home Secretary, need to understand. I think what the shadow Home Secretary needs to understand is the degree of concern that there has been about the use of these section 44 powers under the Terrorism Act 2000—the degree of concern that did arise, not just initially from the way in which they were being used by the police, but a continuing concern about the impact on our civil liberties. I make no apology for the fact—[Interruption.] I believe the shadow Home Secretary was looking at a Liberal Democrat, Tom Brake, and muttering about “their obsession”. I have to say to the shadow Home Secretary that a desire to protect our civil liberties is not an obsession; it is something that we throughout this House should want to do, regardless of political party. I believe it is the duty of Government to balance the need to give the police the powers they need to protect us, with the need to defend our civil liberties, and I believe that is what the statement does.
One cause for the overuse of section 44 stop and search has been the targets set for its use (recently abandoned by most, if not all, forces). At the National Policing Conference, last month, Theresa May announced the scrapping of targets: 'targets don’t fight crime; targets hinder the fight against crime. In scrapping the confidence target and the policing pledge, I couldn’t be any clearer about your mission: it isn’t a thirty-point plan; it is to cut crime. No more, and no less.' Some of these changes will surely be resisted by entrenched interests in the Home Office and the police. A good compromise would be the nine principles of policing from 1829, published soon after the creation of the Metropolitan Police Service, that defined policing by consent.
When celebrations for the suspension of section 44 stops and searches of individuals are over, vigilance will still very much be necessary. The guidelines introduced in May's statement are non-statutory and interim; they could be revoked at any time. What is required to make these changes more definitive is a change of legislation: a repeal of section 44 (if not of the whole Terrorism Act 2000). New legislation will happen only after the announced review of existing counter-terrorism laws is completed.
A potted history of sections 43 and 44
Theresa May reminded officers that 'instead [of relying on section 44], they will have to rely on section 43 powers, which require officers to reasonably suspect the person to be a terrorist.' Both these powers were created by the Terrorism Act 2000. Assistant Commissioner Yates recognised that 'a lot of the stops under section 44 were actually under section 43, where you require reasonable suspicion, so it was a misguided, mis-briefed use of the powers.' Officers have used section 44 even when they had reasonable suspicion, probably to avoid having to justify themselves. (I was stopped and searched under section 44 even though officers stated to have found my behaviour suspicious.)
From 19 February 2001, when the Terrorism Act 2000 came into force, until June 2007, its stop and search powers were mostly used by specialist units. At the very end of June 2007, two car bombs were found in London and a burning car was driven into the Glasgow airport terminal building. For a few days, the threat level in the UK was raised to the the highest: 'critical'. This marked a jump in the use of the Terrorism Act 2000 stop and search powers.
The Metropolitan Police Service (Met) did its first section 43 stop and search in February 2005. During this same month, it was already making 1,296 section 44 stops and searches. The British Transport Police (BTP) started earlier: in June 2003 it was making two section 43 stops and searches and 46 section 44 ones. Most months the number of section 43 stops and searches was in tens, increasing to hundreds for the Met from September 2008; monthly section 44 stops and searches were in thousands or tens of thousands. Most of the counter-terrorism stops and searches, 96% of the use of section 44 in 2009, are by the Met and the BTP.
For the whole of 2009, a total of 148,798 section 44 stops and searches were conducted in Great Britain, a fall of 40% from the previous year; these led to 688 arrests (an arrest rate of 0.5%). During the same period, a total of 1,450 persons were stopped and searched by the Met under section 43, out of which 28 were arrested. As can be seen in the graphs above, the number of counter-terrorism stops and searches peaked in December 2008.
A section 44 stop and search can be done only in an area where there's a prior authorisation. Until August 2009, the Met had in place a London-wide authority for section 44, reviewed every 28 days or close to. From that time, until this week, the Met moved to a patchwork use of section 44 authorisations limited to sites across London of an iconic nature and/or key strategic importance (e.g., transport hubs), and specific tasking in response to the intelligence picture. Detective Chief Superintendent Mike McDonagh at a conference earlier this year stated that, there was an authority for section 44 in place in about 10% of London and that in January 2010 there were about 4,000 section 44 stops and searches in transport hubs and the government security zone, and 600 done at borough level.
The Home Office has always refused to publish the list of section 44 authorisations. SpyBlog has made several attempts to get this information, and its freedom of information requests are still ongoing. Last month, Baroness Neville-Jones disclosed that errors were made in the authorisation process for the stop and search powers under Section 44 of the Terrorism Act 2000, hence some stops and searches were unlawful. In May, the Metropolitan Police Service quietly published a list of authorisations it requested for section 44 stops and searches from 19 February 2001 til 18 May 2009. As officers can still use section 44 in relation to searches of vehicles, it is still important to be able to verify that an authorisation is in place to ensure that a section 44 search of a car is lawful. The Counter Terrorism Command promised that 'Each police service within the UK will now confirm if they have a Section 44 authorisation in place at that current time, although forces still will not provide details of exactly where for operational reasons.'
Other ways to stop and search without ground for suspicion required
The halting of the use of section 44 of the Terrorism Act 2000 does not mean the (interim) halting of all powers that allows stops and searches of individuals without reasonable suspicion. Section 60 of the Criminal Justice and Public Order Act 1994 enables police officers to search any person or vehicle anywhere – within an authorised area – for offensive weapons or dangerous instruments to prevent incidents of serious violence or to deal with the carrying of such items. An authorisation lasts up to 24 hours and can be extended for a further 24 hours. The number of section 60 stops and searches, in England and Wales, nearly trebled from 53,319 in 2007/08 to 150,174 in 2008/09 with corresponding number of arrests of 2,069 and 4,273 respectively.
Criminologist Marian Fitzgerald pointed out that the figures on a borough level show little connection between section 60 stops and searches and reduction in number of stabbings. Not only is the efficacy of this power not clear cut, but the European Court of Human Rights ruling that section 44 of the Terrorism Act is unlawful because 'the powers are drawn too broadly [... and] contain insufficient safeguards' should apply equally to section 60.
Yet another power not requiring reasonable suspicion but more limited in where it can be used is defined in Schedules 7 and 8 of the Terrorism Act 2000. This is the power to stop, question, detain (up to nine hours) and search individuals at port and border controls. There were 10,404 examinations longer than one hour in the period between 1 January 2004 and 30 September 2009. Of these 1,110 persons were detained under the powers in Schedule 7 and 8, leading to 99 arrests for terrorism-related offences, of which 17 were initially charged in relation to offences under the Terrorism Act 2000 and 31 were charged with other terrorist-related offences. Of those charges there were 43 convictions. (From the introduction of the Terrorism Act 2000 up to 31 December 2009, fingerprints and DNA samples have been taken under Schedule 7 on approximately 1,200 occasions.)
When the Terrorism Act 2000 was passed, it is likely MPs intended its stop and search measures to be used to reduce the threat of terrorism and not as a general power to make suspects out of everyone. Some police officers justified their use of section 44 powers by considering it a preventative measure, i.e. the fewer resulting arrests are to be found a proof of its effectiveness as deterring potential terrorists to walk around equipped with items that could help in the preparation of an act of terrorism. Massive use of these powers and zero arrest being the ultimate perfection, according to this perverse logic. I witnessed such logic, with incredulity, in interventions by police officers attending a stop and search conference at Kings College. This is yet another reason why the Home Secretary and parliament must give a very clear message to all police officers of what is acceptable in a democracy... before being forced by the European Court of Human Rights.
Bootnote 1 The data used for the section 43 and 44 graphs was obtained with freedom of information requests to the Metropolitan Police Service (Met) and the British Transport Police (BTP). A year ago, neither the Home Office nor Lord Carlile, the independent reviewer of counter-terrorism legislation, had any data on the use of section 43. The Home Office explained in May 2009, '[s]tatistics on the number of Section 43 stop/searches carried out by Police Forces is not collated centrally; any statistics are collated by individual Police Forces.' Since my requests, the Home Office has regularly published section 43 statistics from the Met in its Home Office Statistical Bulletins. In this instance, the Met was helpful, but the BTP initially refused to provide section 43 or 44 statistics and required some further persuasion from the Information Commissioner's Office. One of the stated reason for non disclosure was that '[t]he law enforcement role of the force could very possibly be compromised by the release of this information.' Considering that it was common for other police forces to publish section 44 statistics and that some section 43 data had published in a Metropolitan Police Authority report into 7/7, this was a surprising reasoning!
Bootnote 2 Azad Ali from the Muslim Safety Forum, mentioned earlier this year at a conference on stop and search at Kings' College some of the allegedly typical (and astonishing) questions asked to Muslim men stopped at borders under the powers of Schedule 7 of the Terrorism Act 2000: Are you good with computers? Have you studied science? What do you want to do in life? What do you think of the Israel-Palestine situation? What does Jihad means to you? What does Ummah means to you? What's your view on arranged marriage? What's your view on the Muslim Council of Britain? Can you tell me what a moderate Muslim is?.
Imagine, being arrested, locked up and questioned by the police for a month and then told to go back to your normal life as they do not have any cause to even charge you. You are innocent, but one month of your life has been disappeared and you have been tarred with the label of suspect terrorist. Will your employer have kept your job as you suddenly left with no notice? Will you still have a home as you've been unable to pay the rent or mortgage, nor any bills? Will your friends still want to be your friends?
This happened to three individuals in the UK.
On Wednesday afternoon next week, Parliament will vote to renew for six months the current 28-day pre-charge detention limit for terror suspects. The use of these powers so far is summarised by the LibDems in their Freedom Bill as follows:
Only 11 people have ever been held for longer than 14 days, and of these only eight were eventually charged (and only three under new terrorism laws). Six people have been held for the full 28 days and three of those were eventually released without charge. Half of the people held for a month in police custody have never been charged with an offence as a result. No one has been held for longer than 14 days since June 2007. The police and the Crown Prosecution Service (CPS) have become more adept at dealing with terrorist suspects. The length of pre-charge detention should now be reduced to 14 days.
To learn more about the 'longest pre-charge detention period of any western democracy' come to the public meeting organised by the Campaign Against Criminalising Communities in association with the Haldane Society of Socialist Lawyers this coming Wednesday:
No to 28-day pre-charge detention. No to punishment without trial - No to the politics of fear.
Public meeting on the detention of people, suspected of having committed terrorist offences, for up to 28 days.
Tuesday 13 July 2010, 7-9pm, Committee Room 4, House of Lords, Westminster, SW1
Hosted by Lord Rea
- Chaired by Bill Bowring – Professor of Law, Birkbeck College
- Imran Khan – Imran Khan & Partners, Vice-President of Haldane Society of Socialist Lawyers
- Isabella Sankey – Policy Director, Liberty
- Jeremy Corbyn – MP
- Hicham Yezza – Writer and activist, Editor of Ceasefire magazine and detained under terror laws for six days. He has recently won his case against the Home Office's attempts to deport him.
- Anne Gray – Campaign Against Criminalising Communities (Campacc)
Under UK law, people suspected of having committed terrorist offences can be held and questioned by police for up to 28 days before being charged with an offence – or else released without charge. Previously terrorist suspects could only be detained for up to 14 days before charge or release (Terrorism Act 2000). When the period was extended under the Terrorism Act 2006, neither the government nor the police gave any credible grounds for requiring a longer period. For anyone called a ‘terror suspect’, the current limit represents an even greater extension from before the Terrorism Act 2000 – when the limit was only 7 days. For ordinary criminal suspects, including those suspected of the most serious crimes such as murder, manslaughter, rape etc, the period is only 96 hours.
The long limit is a dangerous, unjust power. Even shorter periods have been used to stigmatise, intimidate and isolate people by branding them as ‘terror suspects’. The power to arrest and detain suspects under the terrorism legislation permits detention on vague grounds, e.g. that they are suspected of involvement in the preparation, commission or instigation of terrorism. No further details are needed. That suspicion permits the police to detain a suspect for up to 28 days.
The police are supposed to use the period when someone is detained before charge to interview the suspect, and to decide whether or not there is sufficient evidence to charge that person. The police have usually already gathered evidence before they arrest a suspect, and so there is often very little additional evidence to be gathered while the person is detained. It is impossible to justify holding someone for 28 days – four weeks – simply to conduct a few interviews.
This despotic practice puts detainees under enormous psychological pressure. It can be used to extract dubious ‘information’, thus justifying detention of yet more ‘terror suspects’. It can be used for blackmailing detainees to become informers on ordinary activities in their communities. Pre-charge detention acts as a substitute for a proper criminal investigation.
Such a long detention violates the principle of ‘innocent until proven guilty’. It amounts to internment in all but name, thus violating the principle of habeas corpus. Detainees may not know the grounds for any suspicion against them. Detention for up to 28 days is the equivalent of serving a 56 day prison sentence. Lengthy pre-charge detention amounts to punishment without charge, much less a trial.
Such long pre-charge detention is not credibly necessary in order to protect the public. It doesn’t make us safer. But it does encourage a politics of fear and suspicion, creating distrust towards and within the communities who are targeted by such powers. Perhaps for this political aim, the UK has the longest period of pre-charge detention in the Western world.
The Home Secretary intends to ask Parliament to renew the powers for six months. This decision must be made by Parliament by 25 July 2010. If the powers are not renewed by 25 July, then they lapse and the time limit reverts to 14 days.
Ask your MP to vote against renewal. Use the facility on the Liberty website, Charge or Release.
The announcement of the renewal of the current pre-charge detention period limit of 28 days for terrorist suspects was made in a statement by Theresa May. The motion 'to approve a Statutory Instrument relating to Counter-Terrorism' is scheduled to be passed by Parliament on the 2010-07-14. This statutory instrument (SI) is the Terrorism Act 2006 (Disapplication of Section 25) Order 2010, also known as Draft SI 9780111499610. The draft is available as a web page and as a pdf. An explanatory memorandum is also available as a pdf.
Hopefully, the detention conditions have somehow improved since Gareth Peirce and Louise Christian both wrote about how even 14 days or less in Paddington Green affect the mental health of detainees. You may also want to read about the arguments made when this issue came up three years ago in my Detention without trial post.
Update: Justice has published a briefing (pdf) for the House of Commons renewal debate on 28 days pre-charge detention.
First published on 2010-07-07; last updated on 2010-07-11.