As part of a research project challenging the image of Muslims being targeted by anti-terror laws, Ayesha Kazmi is looking into the many instances where non-Muslims are also targeted. The first outcome of this project is a series of interviews about counter-terrorism stop and search powers published by the human organisation Cageprisoners.
The first interview, published last April, was with Pennie Quinton:
In 2003, Kevin Gillan, a student at the time, attended a protest outside the Excel centre. Pennie Quinton, a photographer and journalist, was present at the same event, covering the protest as a member of the press. Both were stopped and searched by police.
After going through an exhaustive process of taking their case to domestic courts, and consistently losing their case, Pennie and Kevin finally took their case to the European Court of Human Rights – where they won and Section 44 of the Terrorism Act 2000 was declared illegal.
The second interview, just published, is an edited version of a conversation Ayesha and I had a few weeks ago:
3 weeks after the 7th July bombings, David Mery found himself caught in bewildering circumstances. With the nation on high alert for potential terrorism related plots, David found himself unwittingly subject to suspicion of terrorism. On 28 July, 2005, David was stopped and searched under Section 44 of the Terrorism Act by London police and subsequently arrested on his way to meet his wife after work.
It took 4 years for the Metropolitan Police to issue an apology to David for the wrongful stop, search and arrest.
The Civil Liberties Panel of the Metropolitan Police Authority (MPA) last year started a review of the use of DNA and the National DNA Database (NDNAD) by the Metropolitan Police Service. As part of its scrutiny effort, the MPA organised a public meeting on the National DNA Database and the use of DNA in policing (webcast, pdf transcript) I attended. The outcome of this review will be the publication next week of the report Protecting the innocent: The London experience of DNA and the National DNA Database. Preliminary information is already available on the MPA website (press release, report). Here are the recommendations as published in the final draft of the report (with some added links):
Recommendation 1: [section 3.3 of the report]
People who have their DNA taken should be provided with the following information in writing, at the point when their DNA is taken:
- Why their DNA has been taken and what this means for them:
- The circumstances in which DNA is retained and for how long (both the sample and the profile)
- Where their DNA samples will be stored.
- How and in what circumstances an individual can apply to have DNA removed from the Database including clear guidelines on the framework for decision making.
- Who has access to their DNA record and the safeguards in place to protect this information.
- Who has knowledge that their DNA has been taken.
- Authoritative sources of further information (e.g. MPS / NPIA website). [GeneWatch UK should be included]
Recommendation 2: [section 3.4 of the report]
Recommendation 3: [section 3.6.3 of the report]
Where the police take an individual in need of immediate care or control to a police custody suite as a place of safety as set out under section 136 of the Mental Health Act 1983 (as opposed to the individual being arrested for a recordable offence), the MPS should ensure that their DNA will not be taken.
Recommendation 4: [section 3.6.5 of the report]
The MPS should undertake a full Equality Impact Assessment (EIA) on the use of DNA within the MPS to address the impact of the use of DNA and the DNA Database on communities within London. This should seek to identify any disproportionality and include details of specific actions the MPS will take to address issues identified. It should be reviewed on a regular basis.
Recommendation 5: [section 3.6 of the report]
In relation to the management of DNA within MPS custody suites, the MPS should:
- Agree a clear process outlining how and when DNA samples are to be taken, processed and retained within custody.
- Train all officers and staff responsible for taking a DNA sample to ensure the procedure is undertaken correctly.
- Develop an agreed chart detailing each step of the process which should be prominently displayed in every MPS custody suite (accessible to both MPS personnel and arrestees). This chart should be dated and subject to regular review.
- Ensure that this agreed procedure is strictly adhered to across all MPS custody suites.
- Ensure that any deficiencies identified through the HMIC/HMIP custody suite inspections in relation to the management of DNA are addressed.
Recommendation 6: [section 3.6 of the report]
For all suspects arrested following a match on the DNA database between their DNA profile and an unsolved crime stain, it is MPS practice to take a confirmatory DNA sample from the suspect on their arrest. This is resource intensive and not standard practice across all forces. Therefore the MPS should provide a rationale for this including the costs for undertaking this practice.
Recommendation 7: [section 4.4 of the report]
The MPS should put in place procedures to ensure the removal of personal and demographic details prior to sending DNA samples to the forensic service providers.
Recommendation 8: [section 4.5 of the report]
In relation to volunteer samples taken for elimination purposes, the MPS should ensure forensic service providers are informed when the criminal justice process has been concluded to ensure the DNA sample and corresponding DNA profile are no longer required and can be destroyed.
Recommendation 9: [section 6.4 of the report]
The MPS should specify how MPS budgets will be impacted by the provisions within the Protection of Freedoms Bill. This should detail immediate and ongoing cost obligations.
The MPA gives three months to the police to respond:
The Panel ask that the MPS begin the implementation of our recommendations immediately. We have made it clear that our recommendations are both necessary to increase public confidence and complementary to the provisions in the Protection of Freedoms Bill. The Panel therefore request that the MPS respond to our recommendations within three months of the publishing of this report with a timetable for implementation. These will then be reviewed by the Civil Liberties Panel.
The Metropolitan Police has just published version .5 of its Exceptional Case Requests - Consideration for the Removal of DNA, Fingerprints and PNC Records (pdf). This document states that they don't have taken the hint from the Supreme Court, and are keeping the status quo, i.e., retaining all the DNA profiles they collect:
The Criminal Justice and Police Act 2001 amended the Police and Criminal Evidence Act 1984, providing the police in England and Wales with the power to retain Deoxyribonucleic Acid (DNA) samples and fingerprint records relating to individuals following acquittal at court or any other discontinuance of a case.
The Criminal Justice Act 2003 amended the Police and Criminal Evidence Act 1984, providing the police in England and Wales with the additional power to take DNA samples and fingerprint records from all persons detained at a police station having been arrested for a recordable offence.
Both sets of legislation are permissive and, therefore, allow Chief Officers the opportunity, in exceptional circumstances, to exercise discretion and accede to requests from individuals for their DNA samples and fingerprint records to be destroyed, together with the deletion of the supporting entry on the Police National Computer (PNC).
In December 2008 the European Court of Human Rights (Grand Chamber Judgement), found against the UK in that there has been a violation of Article 8 in respect of the retention of DNA samples and fingerprint records from persons suspected but not convicted.
In line with the Supreme Court decision of 18th May 2011 in the cases of C and GC v The Commissioner, and based on legal advice, the MPS will continue to process exceptional case requests in accordance with the ACPO policy of 16th March 2006. We will do so until Parliament introduces a new legislative scheme. [emphasis added]
The exceptional case request process is summarised in the included diagram, which comes from Appendix 2 of the Management of Police Information (MoPI) Guidance - Step model - Retention Guidelines (pdf). These guidelines are issued by the private company Association of Chief Police Officers (ACPO) and nothing is preventing the ACPO to change them to make it easier for innocents to get off the National DNA Database (NDNAD). Even though, they are intent to make the process difficult:
Although exceptional cases will be extremely rare the circumstances will be considered and a Commander from the Specialist Crime Directorate (SCD) will make the final decision on behalf of the Commissioner.
They might include cases where the original arrest was found to be unlawful or inordinate. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional case.
If you are one of the estimated 1,083,207 plus persons whose DNA profile is on the National DNA Database but who do not have a current conviction, caution, formal warning or reprimand recorded on PNC, head to the Reclaim your DNA website and follow the advice on how to proceed to make the police consider how exceptional your case is. Be persistent as by default the initial request for deletion is refused.
The only positive of the current system is that if you succeed to have your case considered exceptional, then your Police National Computer (PNC) record will be destroyed as well as your fingerprints and DNA profile and samples. The Protection of Freedoms Bill does include measures to destroy the DNA of innocents, but lacks any provision to delete associated PNC records and photographs. Lobby your MP to improve this bill.
Among the mass of documents collected by the Independent Police Complaint Commission (IPCC) during the investigation about my arrest, I noticed the following paragraph on a page titled 'Meeting at IPCC on 25 July 2006':
CCTV has gone missing or was not seized. Log shows that CCTV seized by BTP [British Transport Police] on 29/7[/2005]. [Detective Inspector] DI P is in the process of trying to establish whether this was OBO the Met.
I had tried in August 2005 – without success – to get a copy of the CCTV footage of my unlawful detention in Southward tube station, from the Metropolitan Police, the British Transport Police (BTP) and Transport for London. According to the paragraph above, there was a chance the footage was still held by the BTP, so last month I sent a subject access request to the Data Protection Registrar of the BTP.
A Data Protection Officer from its Information Standards Unit explained they didn't have it:
I am writing in response to your request for CCTV footage regarding an incident that took place on 28 July 2005.
I have made enquiries and have been informed that British Transport Police (BTP) do not hold the requested CCTV footage. The footage may have been requested by BTP from Transport for London but it would subsequently have been handed over to the Metropolitan Police as part of their investigation.
Unfortunately I do not have any information regarding a hand over of CCTV footage from MTP [sic, obviously BTP] to the Met Police and am only surmising a possible reason for why we do not hold the requested information.
Even though 'Observations conducted in the CCTV control room were very important in forming the suspicion that led to the stop and search and then arrest of Mr Mery', the IPCC-supervised investigation established that the Metropolitan police officer in charge failed to seize the CCTV footage. I replied explaining that a hand over never happened and hence couldn't be the reason they don't have the footage. I further asked for a confirmation of how and when the BTP stopped holding this CCTV footage, and the BTP retention period policy for CCTV footage. The Data Protection Officer replied:
As mentioned I could not locate any information regarding the holding and retention of the footage. The retention period for holding data is usually 6 years.
We are still within BTP's six year retention period for CCTV footage, but they don't have it or any record about where it might have gone.