Following the halting eight months ago of the counter-terrorism powers to stop and search without the need for any reasonable suspicion, the Home Secretary announced that these powers are back, but with some changes. To make the changes effective immediately, Theresa May used an 'urgent remedial order', a type of statutory instrument that is 'made without being approved in draft' and that ceases to have effect after a period of 120 days unless it is approved by each House. Changes similar to this remedial order are part of the Protection of Freedom Bill, which is going to Committee stage this coming Tuesday.
The Terrorism Act 2000 (Remedial) Order 2011 concerns the powers of police officers to stop and search pedestrians and vehicles without needing any suspicion. It replaces sections 44 to 47 of the Terrorism Act 2000 (these are in effect repealed) with a new section 47A. Like the previous sections, for police officers to be authorised to use these stop and search powers, a prior authorisation for a specified area must be in place. A key change is that to give an authorisation, a 'senior office officer' must 'reasonably suspect that an act of terrorism will take place; and consider that (i) the authorisation is necessary to prevent such an act; (ii) the specified area or place is no greater than is necessary to prevent such an act; and (iii) the duration of the authorisation is no longer than is necessary to prevent such an act.' Previously the threshold was much lower as an authorisation could have been given 'if the person giving it considers it expedient for the prevention of acts of terrorism.'
The higher threshold of necessity is clearly an improvement, but how will it be enforced? Authorisations must be confirmed by the Secretary of State to last more than 48 hours and can be for no more than 14 days. Previous Secretary of States have practically rubber stamped section 44 authorisations and nothing is preventing this to happen with the new section 47A ones.
There is no mechanism in place to publish any part of these authorisations. Since 2007, SpyBlog has been 'asking [under the Freedom of Information Act] to be published [to no avail] the bare minimum laid down in the text of the Terrorism Act 2000 sections 44 and 45 and 46 i.e. the time and duration and geographical location of each Authorisation to suspend the normal rule of law regarding Stop and Search Without Reasonable Suspicion.' This continued lack of publication will make it extremely difficult to find out if these new powers are abused in a similar manner to the ones they replace and for those stopped and searched to find out whether the stop and search was lawful.
Much detail about how the Secretary of State intends these powers to be used can be found in 'a robust statutory code of practice' (pdf, 49 pages) containing guidance about 'the exercise of the powers to give an authorisation' and 'the exercise of the powers conferred by such an authorisation'. The Home Office has also published a document containing an explanatory memorandum (7 pages), an equality impact assessment (23 pages) and some 'required information' (7 pages).
Innocents may again be stopped and searched just on the off chance that they are or have 'been concerned in the commission, preparation or instigation of acts of terrorism' as long as a senior officer found it necessary to authorise the use of these powers in the area they happen to be passing by.
Bootnote 1 The Metropolitan Police Authority is running a consultation until the end of the month to find out 'if Londoners want their police officers to continue recording stops and accounts.' Whether this recording continues has been made optional for each police force by the Crime and Security Act 2010. Another change introduced by this act is to reduce the time one can ask for the record of a stop and search from twelve to three months.The latest statistics for stop and search, and stop and account by the Metropolitan Police are for February (pdf).
Bootnote 2 Other powers to stop and search without needing reasonable suspicion include schedule 7 of the Terrorism Act 2000: the power to stop, question, detain (up to nine hours) and search individuals at port and border controls, and section 60 of the Criminal Justice and Public Order Act 1994: the power to search any person or vehicle anywhere – within an authorised area – for offensive weapons or dangerous instruments to prevent incidents of serious violence or to deal with the carrying of such items.
At the end of 2010, there were 6,074,433 subject profiles on the national DNA database (NDNAD). James Brokenshire provided further updated figures in a written parliamentary answer:
The most recent figures available for England and Wales show that at 31 March 2010 there were an estimated 4,946,613 persons on the NDNAD, of whom 22% (an estimated 1,083,207 persons) did not have a current conviction, caution, formal warning or reprimand recorded on PNC.
The Protection of Freedoms Bill had its first debate in the House of Commons and a few days earlier, Shadow home secretary Yvette Cooper attempted to score some political points with Guardian readers. Helen Wallace, director of GeneWatch UK, wrote a letter correcting some of her misunderstandings:
New DNA rules will restore public trust
Shadow home secretary Yvette Cooper (Relaxing DNA rules could reduce rape convictions, 28 February) claims that the DNA database proposals in the protection of freedoms bill would lead to 1,500 fewer DNA detections a year, many of these for rape.
She is quite simply wrong. Her calculations rely on the same discredited method used by the Home Office when Labour was still in power. This contains four major errors.
First, only a minority of detections rely on matching a new crime-scene DNA profile loaded to the database with a stored DNA profile from an individual: the rest match newly added individual profiles to stored crime-scene DNA profiles and will not be affected by the proposed changes in the law. Second, most crimes – as she notes – are committed by reoffenders, not the people without previous convictions whose records the bill plans to remove.
Third, only about 1% of crimes detected using the database are rapes, most are not committed by strangers and many are not resolved by DNA identification because consent is disputed. Fourth, the bill has been drafted carefully to account for those rare cases where a man suspected but not convicted of violence against women goes on to commit a stranger rape, by allowing a temporary retention period of three to five years for persons accused of serious offences. This will minimise the chance that any rapes go undetected.
By making better use of limited resources and restoring loss of public trust, the proposals in the bill are good for victims as well as a major step towards improving human rights.
Chris Pounder at Hawktalk sums up the Information Commissioner’s evidence to the Public Bill Committee on the Protection of Freedoms Bill. Here are some of the concerns about the DNA database:
“The Information Commissioner believes that there is no justification for the police to continue to retain a PNC identity record which is linked to other biometric records that the police are required to delete having served their purpose”.
The Commissioner is also concerned “that there is no facility available for individuals to request deletion of their DNA and fingerprints”.
In relation to the National DNA Database Strategy Board that governs the use of DNA, the ICO notes that “there are other interests (to be) reflected in the composition of the Board rather than just comprising of representatives of the law enforcement community”. This is a stark warning that DNA governance could well be dictated by the needs of the law-enforcement community under the supervision of the Home Office.
All I add is a simple comment: “well this is exactly what one would expect the Home Office to do!”.
More facts and figures, published by GeneWatch, can help you spot the many misinformed mistakes repeated by some politicians and journalists. There are plenty of ways having one's DNA profile retained can affect the life of an innocent.