EXE Magazine, initially .EXE Magazine, the UK software developers' magazine, ran from 1986 to 2000. I joined it in June 1994 as a feature editor and became its editor in October 1995 until the end of 1999.
I scanned all the copies I had and uploaded the PDFs. You can find and download all the issues from July 1994 to March 2000 and the June 1988 issue here.
The Home Office ran a consultation last year about changes to the Police and Criminal Evidence Act 1984 (‘PACE’) Codes of Practice. One proposed change was about when does an officer decides a suspect is vulnerable, which triggers the requirement for an appropriate adult (AA) to be present for key aspects of the suspect’s time in custody such as their police interview.
The existing relevant section in the current Code C is:
1.4 If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to dispel that suspicion, the person shall be treated as such for the purposes of this Code. See Note 1G.
The proposed change was:
1.4 If at any time an officer has a reason to believe that a person is a ‘vulnerable adult’ (see paragraph 1.13(d)), in the absence of clear evidence to the contrary, the person shall be treated as such for the purposes of this Code. See Note 1G.
I had sent in some concerns about that specific proposed update. Here’s the full text of my response:
From my experience as both an Independent Custody Visitor (ICV) and being autistic, I find the proposed change to section 1.4 of PACE Code C particularly concerning.
The change from 'has any suspicion, or is told in good faith,’ to the much higher standard 'has a reason to believe’ means that there would now be a strong presumption against calling an Appropriate Adult (AA) as an officer would have to reach the higher threshold of ‘a reason to believe’ to consider the detainee to be vulnerable and that an AA is needed.
Also disregarding ‘is told in good faith’ would be disempowering for the detainee and start the relationship by showing disrespect. Disabilities can be part of someone’s identity. So for instance no longer accepting an autistic detainee telling a custody sergeant they are autistic ‘in good faith’ would be denying their identity. In addition to the lack of respect, by being adversarial about the detainee’s identity and/or lived experience this might negatively affect cooperation and further stress the detainee.
Such a change to section 1.4 would also affect monitoring of whether an AA is called when one must. ICVs, for instance, wouldn’t be able to ensure that an AA has been called for detainees that appear to them to be vulnerable or tell them in good faith they are vulnerable, as an ICV cannot know the custody sergeant and/or interviewing officer’s belief, which is how a detainee would be deemed to be vulnerable.That what a detainee may say in good faith about their vulnerability would no longer be relevant will mean, if these changes happen, that ICVs will likely encounter situations where a detainee tells the ICVs that their vulnerability has been ignored while the custody sergeant tells ICVs they don’t believe that detainee to be vulnerable, basically creating an impossible situation where a detainee would have to prove their vulnerability to get access to an AA.
The Home Office recently published a summary of the responses it received (pdf). In that document, I’m identified as ‘11. Member of the public – independent custody visitor.’ Here’s the bit about section 1.4:
2.2.2 The main concerns were that certain safeguards for juvenile and vulnerable suspects were not sufficient and respondents proposed a number of further changes to address these issues. [emphasis in the original] These responses argued that:
- the police were not adequately trained to recognise when a suspect needed an appropriate adult;
- the proposal to raise the threshold for determining whether a suspect was vulnerable from ‘suspicion’ to ‘belief’ would exclude many who needed help and should not be implemented;
- [...]
The revised Code C (pdf), taking into account the responses received, has also been published and will come into force 21 days after The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes of Practice C, E, F and H) Order 2018 is made. (All the revised PACE Codes are published on the Consulation’s page.) Here’s the final revised text of section 1.4:
1.4 If at any time an officer has any reason to suspect that a person of any age may be vulnerable (see paragraph 1.13(d)), in the absence of clear evidence to dispel that suspicion, that person shall be treated as such for the purposes of this Code and to establish whether any such reason may exist in relation to a person suspected of committing an offence (see paragraph 10.1 and Note 10A), the custody officer in the case of a detained person, or the officer investigating the offence in the case of a person who has not been arrested or detained, shall take, or cause to be taken, (see paragraph 3.5 and Note 3F) the following action:
(a) reasonable enquiries shall be made to ascertain what information is available that is relevant to any of the factors described in paragraph 1.13(d) as indicating that the person may be vulnerable might apply;
(b) a record shall be made describing whether any of those factors appear to apply and provide any reason to suspect that the person may be vulnerable or (as the case may be) may not be vulnerable; and
(c) the record mentioned in sub-paragraph (b) shall be made available to be taken into account by police officers, police staff and any others who, in accordance with the provisions of this or any other Code, are required or entitled to communicate with the person in question. This would include any solicitor, appropriate adult and health care professional and is particularly relevant to communication by telephone or by means of a live link (see paragraphs 12.9A (interviews), 13.12 (interpretation), and 15.3C, 15.11A, 15.11B, 15.11C and 15.11D (reviews and extension of detention)).
See Notes 1G, 1GA, 1GB and 1GC.
...
1.13 In this Code:
(d) ‘vulnerable’ applies to any person who, because of a mental health condition or mental disorder (see Notes 1G and 1GB):
(i) may have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with:
- their arrest and detention; or (as the case may be)
- their voluntary attendance at a police station or their presence elsewhere (see paragraph 3.21), for the purpose of a voluntary interview; and
- the exercise of their rights and entitlements.
(ii) does not appear to understand the significance of what they are told, of questions they are asked or of their replies:
(iii) appears to be particularly prone to:
- becoming confused and unclear about their position;
- providing unreliable, misleading or incriminating information without knowing or wishing to do so;
- accepting or acting on suggestions from others without consciously knowing or wishing to do so; or
- readily agreeing to suggestions or proposals without any protest or question.
...
1G A person may be vulnerable as a result of a having a mental health condition or mental disorder. Similarly, simply because an individual does not have, or is not known to have, any such condition or disorder, does not mean that they are not vulnerable for the purposes of this Code. It is therefore important that the custody officer in the case of a detained person or the officer investigating the offence in the case of a person who has not been arrested or detained, as appropriate, considers on a case by case basis, whether any of the factors described in paragraph 1.13(d) might apply to the person in question. In doing so, the officer must take into account the particular circumstances of the individual and how the nature of the investigation might affect them and bear in mind that juveniles, by virtue of their age will always require an appropriate adult.
1GA For the purposes of paragraph 1.4(a), examples of relevant information that may be available include:
- the behaviour of the adult or juvenile;
- the mental health and capacity of the adult or juvenile;
- what the adult or juvenile says about themselves;
- information from relatives and friends of the adult or juvenile;
- information from police officers and staff and from police records;
- information from health and social care (including liaison and diversion services) and other professionals who know, or have had previous contact with, the individual and may be able to contribute to assessing their need for help and support from an appropriate adult. This includes contacts and assessments arranged by the police or at the request of the individual or (as applicable) their appropriate adult or solicitor.
1GB The Mental Health Act 1983 Code of Practice at page 26 describes the range of clinically recognised conditions which can fall with the meaning of mental disorder for the purpose of paragraph 1.13(d). The Code is published here:
https://www.gov.uk/government/publications/code-of-practice-mental-health-act-1983.
Update 2018-07-14: Following the publication of the The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, E, F, and H) Order 2018, the revised codes will come into force on 2018-07-31. (On that date, the updated versions will also be added to the Police and Criminal Evidence Act 1984 (PACE) codes of practice web page).
Update 2018-07-31: The National Appropriate Adult Network (NAAN) has published an excellent detailed guide to the PACE Codes changes (PDF).
WhatDoTheyKnow, the website created by mySociety to help make Freedom of Information requests and share the responses, was launched ten years ago. As part of the birthday celebrations, 50 significant news stories that have been uncovered through the site were published.
One of the stories I worked on is featured in the ‘Fact-checking’ section:
Fact-checking
Freedom of Information is one way to counter fake news: it’s great to have facts and figures to link to when the truth is in dispute.
2012
- Information about an incident involving police presence on a mental health ward
- The Voice and the Independent ran this story of the siege and subsequent ‘racist cover-up’.
Very happy birthday to WhatDoTheyKnow!
Transport for London (TfL) has published information about how long it retains footage from some of its many CCTV surveillance cameras on its Surveillance Cameras and Road User Charging web pages and the Metropolitan Police Service (MPS) has published some additional data in a letter (pdf) to the Chair Police and Crime Committee of the Mayor's Office for Policing And Crime (MOPAC) dated 2017-02-06. Here's the combined data:
- London Underground stations: 14 days (according to TfL)
- London train stations (including tube): up to 14 days (according to the MPS)
- London Underground trains: 72 hours
- TfL Bus stations: 30 days (according to TfL) or for up to 28 days (according to the MPS)
- On-bus CCTV: between 4 to 10 days depending on the type of bus and hard drive installed
- Body worn cameras: 14 days
- Trams: up to 72 hours
- DLR: up to 14 days
- Victoria Coach Station: 28 days
- London River Services piers: 30 days
- Traffic monitoring and enforcement cameras: Images are only recorded if a vehicle is seen committing a traffic contravention. If a Penalty Charge Notice (PCN) is not issued they are deleted after 28 days. If a PCN is issued the images are deleted 180 days after the PCN is closed.
- Details of each payment of a charge: 24 months from the date of the transaction (regardless of whether or not you are a registered customer)
- ANPR data and images are automatically deleted after payment of the charge has been received or if your vehicle is registered for a discount or exemption
- For Autopay customers, ANPR data and images are retained until after the account has been settled, usually a maximum period of two months
- Details of a discount are retained for 40 months after the date you were last granted a discount
- Details of a Penalty Charge Notice (PCN) are retained for seven years after you paid the PCN (this will include images of the vehicle you were driving)
In September 2015, along with 662 other claimants, I joined Privacy International's campaign 'Did GCHQ Illegally Spy on You?' of applications to the Investigatory Powers Tribunal to investigate whether we were subject of unlawful mass surveillance by Government Communications Headquarters (GCHQ). The Tribunal had 'already concluded that, to the extent my information was shared with the UK Government Communications Headquarters (GCHQ) by the US National Security Agency (NSA) prior to 5 December 2014, such action was unlawful and a violation of Article 8 of the ECHR'.
The Tribunal wrote me in May 2016 to ask why I believe I may have been targeted for surveillance:
Please find enclosed a copy of the judgment handed down following a hearing that the Investigatory Powers Tribunal held on 15th April 2016. You attention is drawn in particular to paragraphs 46 and 64 of the judgment.
The Tribunal has carefully considered your complaint and Human Rights Act claim in the light of this judgment and in accordance with its normal procedures.
The Tribunal has asked me to inform you that, in the absence of receipt by the Tribunal of any further submissions from you by 24th June 2016, your complaint and Human Rights Act claim will stand dismissed, without further order or notice to you, as unsustainable, that is frivolous within s.68 (4) of the Regulation of Investigatory Powers Act 2000.
Any such submission would have to outline the basis, in respect of your asserted belief that any conduct falling within subsection s.68(5) of RIPA has been carried out by or on behalf of any of the Intelligence Services, and whether there is any basis for such belief; such that the “individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or legislation permitting secret measures only if he is able to show that due to his personal situation, he is potentially at risk of being subjected to such measures.” (Zakharov at 171).
It is rather ironic to be asked for why I may be a target of surveillance when I complained about mass surveillance. However I complied with the Tribunal's request and sent six such potential reasons.
In December 2016, the Tribunal wrote to inform me that either I was spied on lawfully or not spied on at all and that in that respect my human rights were not breached. And that as far as it is concerned that is the end of the matter:
I write in connection with your applications to the Investigatory Powers Tribunal dated 18 September 2015.
The Investigatory Powers Tribunal has carefully considered your complaint and Human Rights Act claim in the light of all relevant evidence and in accordance with its normal procedures. The Tribunal has asked me to inform you that no determination has been made in your favour either on your complaint or your Human Rights Act claim.
I would like to explain the role of the Tribunal under the Regulation of Investigatory Powers Act 2000 to assist you in understanding the effect of this decision by the Tribunal. Under rules made under that Act the Tribunal has a duty to ensure that no information is disclosed which is contrary to the public interest or prejudicial to national security. Under section 68 (4) of the Act when not making a determination in favour of an applicant, the Tribunal is only permitted to inform such complainant that no determination has been made in his favour.
If no determination is made in favour of the complainant that may mean that there has been no conduct in relation to the complainant by any relevant body which falls within the jurisdiction of the Tribunal, or that there has been some official activity which is not in contravention of the Act. The provisions of the Act do not allow the Tribunal to disclose whether or not you are, or have been of interest to the security, intelligence or law enforcement agencies. Nor is the Tribunal permitted to disclose what evidence it has taken into account in considering your complaint.
As set out above the Tribunal is not permitted to give any reasons for its determination. Accordingly the file on these applications will now be closed and the Tribunal is not able to enter into any further correspondence about them.
However, this is not the end of this legal action as 'Human Rights Watch and six individuals lodged a challenge with the European Court of Human Rights, demanding that the UK Investigatory Powers Tribunal confirm whether or not they were subject to surveillance by GCHQ.'
In March 2015, Met Detention, the Metropolitan Police Service (MPS) centralised command for police custody, invited independent custody visitors (ICVs) to review its Equality Impact Assessment (EIA) (pdf) and provide feedback. As ICVs we do surprise visits to police stations and talk to the persons being detained. As we are independent of the police and have regular experience of the custody environment, this request for feedback made lots of sense and was welcomed.
Several members of my ICV panel did provide feedback and ICVs from other boroughs likely did as well. As we were not informed as to how our feedback had been used, I asked for a copy of the updated Equality Impact Assessment. In February 2016, I received a copy… of the same document we had been sent to review a year earlier.
I subsequently asked via a Freedom of Information request for all the feedback received when creating and revising this Met Detention Equality Impact Assessment. Met Detention could only find a single feedback dated October 2015 (pdf), that briefly touches upon two issues of interest to Superintendents. Nothing else, neither the feedback from ICVs nor from anyone else.
And they apparently did an exhaustive search for any feedback received. The initial response to my request was delayed as
'Enquiries are still being made in relation to the second part of your request.'
The first part of my request was about the EIA documents, and the second part was about 'the feedback received following each review of these documents'. When a further response was sent with some versions of the EIAs attached, I was then told:
'With respect to the second part of your request, reasonable searches have been made and as at today's date no information relevant to your request has been located.'
And an internal review (delayed as well) explained that:
'the review is satisfied that reasonable enquiries were carried out in the original case with the most appropriate Unit (Met Detention) for ‘The feedback received following each review of these documents’. Following further enquiries only one relevant feedback email was located and is attached to this review - subject to the exemption of personal information by virtue of section 40(2)and(3).
The review is satisfied on the balance of probabilities that no further information is held which falls within the scope of your request for feedback following each Equality Impact Assessment.'
That a year after a review process was initiated, only one feedback can be found raises concern as to the validity of this consultation process. This is compounded by the experience that the feedback that was thought out and had been sent in was obviously ignored.
Bootnote 1: Here's a copy of the feedback I had sent (well within the three weeks we had been offered):
Thank you for sharing this EIA. Here is some feedback (in no particular order) which you may hopefully find useful.
- The findings for the suitability of 21 suites to support disabled and Muslim detainees, and Transgender detainees/staff on p. 8 is in a spreadsheet which is not accessible. Either make this spreadsheet accessible when sharing this EIA or remove the reference to it.
- The constant jumping between custody staff/workforce and MPS detainees/external with several terminology used is a bit confusing. It would help to have a clearer signposting of whether a section is about staff or detainees.
- There appears to be a strong focus on MH & juveniles, and also some mentions of wheelchair users. Impact of the custody on those with learning disabilities and/or who are autistics is lacking.
- There should be a section addressing hyper- and hypo-sensitivities. Sensory, noise and light hypersensitivities are common among autistics, but other combinations also happen and these are not exclusive to autistics. The custody environment can be a sensory nightmare severely affecting the functioning of those having such sensitivities.
- Custody staff tends to be reactive to detainees demands. Detainees with MH can find it difficult or impossible to make requests. A particular concern is of detainees getting dehydrated because they do not ask for water and custody staff is not proactive in offering it.
- In potential changes to the cell environment, facilities for the detainee to wash his/her hands should be considered. It is obviously hygienic, but is also a requirement before food can be touched and prayers for certain religions.
- A sex-related external impact that has been missed is ensuring that custody staff is mixed. There have been situations, especially when short of staff, when a custody suite shift has been operated only with female DDO, this meant that no male detainee could have a shower for instance.
A related point is that there should be representation of vulnerable and disabled individuals (with MH, LD and/or autistics) in forums affecting what’s happening in custody. With Met Detention being a central command, this can’t happen at the SNB level, I would be interested to learn what consultative forums exist at which custody will be looked into.
Thank you for forwarding my earlier comments. As the draft EIA was shared specifically asking for our feedback I do hope the responses received will be taken into account.
Two further thoughts about the EIA I should have included earlier:
- In relation to the point I already made about hypo and hyper sensitivities, there should be a mention in the EIA about interview rooms that are 'soft interview' environment. As I understand it these are less intimidating interview room, often used for children, vulnerable detainees, victims and the bereaved, etc. This is likely to be better for sensory needs (less echo, less smell of sweat, softer lighting, more physical comfort, etc).
I have seen a video filmed in such an interview room when attending a Crown Court in a case where the victim was a young autistic woman. I have never seen any such interviewing rooms in Islington or Hackney. Are they available elsewhere in the stations or do only some custody suites/stations have such rooms?
The guidance 'Think Autism. Fulfilling and Rewarding Lives, the strategy for adults with autism in England: an update.' has the police as one of its target audience.
- This guidance recommends the police to 'have access to expertise to support adults with autism and consider the most effective way of ensuring that autism awareness guidance/training is available to staff.' The EIA should highlight the impact on custody staff training and also how considerations are given for appropriate adults called for autistic detainees to have been trained about autism.
- The guidance also discusses dealings with 'issues such as training and awareness, screening, and reasonable adjustments and the use of IT systems to better support people with autism within the criminal justice system.' So the EIA should list what reasonable adjustment can be made for autistics in the custody environment.
Thank you. FYI, I just realised that there’s guidance from the College of Policing as well about sensory issues for autistics and other vulnerable detainees:
'Those carrying out the risk assessment for detainees experiencing mental ill health should consider whether there is any additional risk of short and longer-term harm. It is also important to identify specific areas which could adversely affect those who are vulnerable because of learning disabilities and difficulties. For example, people who have autism or Asperger’s syndrome can be highly sensitive to their environment, and loud noises or bright lights may in some cases cause distress and possibly even aggressive behaviour.
The risks that a detainee with mental ill health or learning disabilities may pose to themselves or others are individual to each case and cannot be generalised.
Being in a police cell can have an adverse effect on a person’s condition if they are already suffering from mental illness. In particular, isolation and the noise in a busy custody suite can be aggravating factors.
Mental ill health and alcohol/drug misuse often coexist and a person’s impulsivity may make it more likely that they will self-harm or consider suicide.'
Bootnote 2: To become an independent custody visitor and join the panel of the borough your live or work in, apply to the Mayor's Office for Policing and Crime (MOPAC).
Over the past two years, the Metropolitan Police Service (MPS) has detained fewer and fewer persons for longer and longer. Information obtained via a Freedom of Information request shows that all 740 police cells available 24/7 are staffed and run by Met Detention, the MPS centralised command for police custody. This transfer of control from the Borough Operational Command Units to Met Detention happened early 2015. The average occupancy rate of these cells has been 44% over this period. 20,465 persons were detained by the MPS in March 2014, 18, 457 in March 2015 (a 9.8% decrease) and 16,793 in March 2016 (a further 9% decrease).
The average waiting time between the arrival at a station and the authorisation of the detention by the custody sergeant has remained more or less the same at respectively 22, 22 and 21 minutes in March 2014, 2015 and 2016.
However, the average detention duration was already long in March 2014: 12 hours and 54 minutes and has been getting longer ever since. That increased by 4.5% to 13 hours and 20 minutes in March 2015, and further increased by 8.7% to 14 hours and 39 minutes in March 2016.
The average time spent in custody last month (including the initial waiting time) was 14 hours 59 minutes and 27 seconds, just 33 seconds short of 900 minutes (see graph below). That's 1 hour 45 minutes more than two years earlier.
That's not the only issue affecting the custody environment, custody suites are understaffed and a recruitment freeze on Designated Detention Officers has made the situation worse. One suggested solution is to close several custody suites.
When I sent in a freedom of information request, in October 2012, asking for the South London and Maudsley NHS Foundation Trust investigation report into an incident involving a massive police deployment that happened earlier that month at one of the Trust's mental health ward, I expected to receive the report within a few months. It took close to two and half years and involved sending a dozen of freedom of information requests to the Trust, the Metropolitan Police, the Independent Police Complaints Commission, Monitor and the Care Quality Commission as well as requesting many internal reviews and making several complaints to the Information Commissioner’s Office who issued two related decision notices.
Here’s a brief chronology of the reports I received from the Trust (the Metropolitan Police after many searches cannot find its own report):
The full report lists what the Trust and the Metropolitan Police have been covering up during all this time. My investigation has been written up in the Saturday 9 May editions of The Independent (pdf and below) and i (pdf). Note that, at the time of writing, the online version of The Independent's article is abruptly cut in the middle of the article (surprisingly where the text finishes on the first page of the article in the print edition, as if the online version was created from the printed paper).
Campaigners accuse Met Police and mental health trust of racist cover-up
By Paul Gallagher, The Independent, Saturday 9 May 2015
A mental health trust and the Metropolitan Police have been accused of trying to cover up alleged racism towards patients during an extraordinary night when 48 officers – some in riot gear – were deployed to deal with disturbances in a ward of vulnerable adults.
Campaigners have spent three years trying to uncover what happened at the River House facility at Bethlem Royal Hospital, part of the South London and Maudsley NHS Foundation Trust, on 1 October 2012.
Several days of disturbances escalated into a riot, the ringleaders of which were four patients, three black and one white. They had placed staff under siege which required police intervention before control could be regained.
The Met sent in 48 officers, including armed and dog units. More than 20 officers entered the ward including several Tactical Support Group (TSG) officers in “strict, compact riot formation” armed with Tasers, shields, visors and batons.
An independent report into the disturbances commissioned by the trust said: “According to staff statements, the police, after entering the unit, ignored the request of staff to treat Patient C (a white patient) the same way as they had treated the three black patients.
“Staff state that the police made no attempt to coordinate their actions with [hospital] staff as is standard practice during a siege, to gain information and to help them plan their strategy in order to minimise disruption to the unit.”
Police, assisted by hospital staff, escorted the three black patients (Patients A, B and D) to solitary confinement, handcuffing two of them. Officers also placed a clear plastic cover over Patient B’s head preventing him from moving his head and shoulders. “He was initially ignored by police until several promptings by staff,” the trust report said.
Patient C, the only white patient of the four, was not handcuffed and allowed to stay in the television lounge despite staff insisting to police he was also “a significant player in the disturbance” and that being left on the ward could lead to another disturbance – which it did.
Immediately after police left, around 3am, another patient, E, demanded an explanation as to why Patient C had remained on the ward. The report said: “Patient E believed that there was a racial motive which led to staff assisting the police to place three black patients in supervised confinement, while a white patient was treated more favourably.”
Despite explanations, Patient E became increasingly agitated and hostile and threatened to kill staff and patient C. “This led to a second siege when staff lost control of the ward for a second time. Police assistance was required again before staff could regain control of the clinical area,” said the report.
Eleven officers returned and “dealt with the situation promptly”. By 5am full control was restored.
A 111-page report was completed in May 2013 and a summary published that August. An “unreadable” version was only made public in May 2014 following Freedom of Information requests made by David Mery on behalf of the charity Black Mental Health UK. Almost all the allegations of racism and the patients’ ethnicity had been censored.
Mr Mery appealed and the trust was forced to publish the report again earlier this year detailing the accusations of racism as well as Scotland Yard’s refusal to engage with hospital staff. Around 30 pages remain completely redacted.
A paragraph initially redacted said: “It took eight weeks to secure material from the Metropolitan Police. Requests for further and better particulars have been unsuccessful, despite reminders on matters which were explored at interview with an inspector from Bromley borough police.”
Mental health campaigners say it was only luck that prevented staff or patients being injured that night.
The Met Police had previously been heavily criticised for their actions at the same hospital in September 2010. Then, Olaseni Lewis, a 23-year-old Kingston University postgraduate student, died after being forcibly restrained by up to 11 officers while seeking help as a voluntary patient. Five years on his family are still waiting to hear when an inquest into his death will be held.
Addressing the 2012 incident, Mr Mery told The Independent: “The cover up, with the trust releasing conflicting statements and deliberately attempting to avoid the release of its investigation report (and still refusing to name its authors), and the Metropolitan Police losing its own report, demonstrate that neither organisation is keen to take responsibility for what happen and ensure that it won’t happen again.
“Surprisingly, there doesn’t appear to have been a specific investigation into the racist behaviour described in the report. NHS trusts and police forces should have an obligation to publish reports into serious incidents publicly, promptly and in their entirety. However, the police have lost the incident management log for what they have classified as a critical incident.”
The police have said they were concerned that the staff on the ward that night were unaware of any contingency plan other than to call them on such an occasion. Operation Metallah, a new way of the Met to work with the mental health trust, was launched a few months later.
Mr Mery said: “The tactics that resulted in the deployment at a mental health unit of armed officers, dog units, and TSG officers with Tasers drawn are clearly wrong. Such tactics cause distress to the vulnerable individuals housed there. The apparently racist behaviour of TSG officers involved is unacceptable.
"It is lucky this time no one died or was seriously injured. Olaseni Lewis and Sean Rigg [whose death in police custody in Brixton, south London, in 2008 led to widespread campaigns on how officers treat suspects with mental health issues] were not so lucky.”
A trust spokeswoman said the report had been redacted on legal advice "for reasons of patient and public safety, and patient confidentiality… to maintain security arrangements used in a forensic mental health facility and to protect patient and public safety”.
She said: "The report published on the trust website provides a clear and independent account of what happened on 1 October 2012. The trust's intention was to publish the report in the interests of transparency while using the correct application of the FoI Act to ensure that the identity of patients and their security was not compromised.
"Following the investigation in 2013, the trust has taken action to address all recommendations made in the report to prevent a similar incident recurring.
A Met spokeswoman said: "The location is known to officers as housing high-risk mental health patients. There was a serious threat to staff safety, and some patients, whose medical history was not known to officers, were unsupervised and believed armed with furniture and access to a kitchen area containing knives.”
She said the response was based on "using the widest range of resources available during a highly charged incident by deploying resources appropriate to bring the situation under control, while ensuring the safety of staff and patients. The Metropolitan Police Service has received no complaint in relation to the incident. Should any complaint be received it would be thoroughly investigated."
She added that since the May 2013 publication of Lord Adebowale's report into how the Met responds to mental health incidents: "The MPS has fundamentally looked at how we work as an organisation, and with partner agencies, to improve services, share information and better understand the needs of people with mental ill health.”
The fudge report: Crucial details obscured
[NB xxxx represents details such as names mentioned in the copy but redacted in the ‘Final 10th May 2010 Report’]
‘Staff under siege’
Incident 1: escalated to a riot (as defined by BDP CAG – Major Incident Protocol and Procedures, February 2012), involved xxxxxxxxx who opportunistically placed staff under siege in the nursing station which required police intervention before nursing staff could regain control of the clinical environment. The antecedent to this incident stemmed from one patient, xxxxxxxxx. This incident resulted in damage to property but no physical injury to staff. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. The fourth patient, xxxxxxxxx, was initially left on the ward, despite concerns raised by staff that this could lead to further disturbance.
‘Increasingly agitated’
Incident 2: followed on almost immediately from the first incident, when xxxxxxxxx approached staff demanding an explanation as to why xxxxxxxxx had remained on the ward. Xxxxxxxxx believed that there was a racial motive xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Notwithstanding explanation from staff, xxxxxxxxx became increasingly agitated and hostile and threatened to kill staff and xxxxxxxxx. This led to a second siege when staff lost control of the ward for a second time. Police assistance was required again before staff could regain control of the 12 Independent Report – Norbury incidents, night of 1st October 2012 clinical area. This incident also resulted in damage to property. Xxxxxxxxx sustained minor injury to his hand. There were no physical injuries to staff.
‘Threatening and abusive’
Xxxxxxxxx had, by this time, calmed down considerably and although remained verbally threatening and abusive, obeyed police instruction, sitting on the floor with his arms above his head allowing the police to handcuff him. Xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. He was initially ignored by the police until several promptings by staff. He was escorted by xxxxxxxxx on Norbury Ward.
Here are my previous posts about this incident:
Autistic British journalist/author and advocate Lydia Andal has just published an epic interview of Mark Lever, Chief Executive of the National Autistic Society. It is a revealing interview. Mark Lever admits ‘I think we’ve got to get much better at communicating with, engaging with autistic people. And I know that sounds crackers – it’s the National Autistic Society, but I’m just being honest.’ You can start with a guide to the six parts.
The first instalment is about the Ask Autism training programme, created by autistics. In it, Lydia Andal questions Mark Lever about contributors to Ask Autism not having been paid and not having been given access to these modules. To provide a reality check to Mark Lever’s answers, this section includes a case study of my experience of being video recorded for one of the training module:
What Happened Next?
During the Interview: When asked if he will commit to sending the autistic contributors to the Ask Autism programme an access code – Mark says he will.
After the Interview: Mark did not deliver on this commitment.
Instead the NAS subsequently issued the following statement: “Everyone who developed the modules has been offered free access to Ask Autism.” (bold emphasis added).
This statement highlights that in contrast to Mark’s commitment in the interview – access continues to be restricted to the small number of people who actually developed the training materials – a policy which was already in place at the time I met Mark.
As such the rest of the autistic contributors continue to be barred from accessing the online training programme they helped to create.
During the Interview: Mark states several times that he is committed to ‘significantly reducing’ the price of the Ask Autism programme so that those most in need of the training tool – autistic people and their families – are not priced out of accessing it.
After the Interview: The following enquiry was sent “Can Mark confirm the new pricing policy for Ask Autism for members? There was talk of it being free or at a heavily discounted rate during our discussion.”
Five weeks later the NAS provided the following statement:
“Prices for the Ask Autism service can be downloaded from our website here: http://www.autism.org.uk/our-services/training-and-consultancy/ask-autism/online-modules.aspx
Members are able to claim a 20% discount for individual modules. There are on-going discussions about how the modules could be further discounted for members and others where price is a significant barrier to accessing them.”
The 20% member discount was already in place at the time of the interview and remains unchanged. At time of writing (six weeks after the interview) – the pricing policy remains unchanged.
This article will be updated if and when the NAS change their pricing policy – until then it could be considered that Mark has not delivered on his commitment to reduce the pricing of Ask Autism.
During the Interview: Mark states he wasn’t aware that some contributors had not been paid.
After the Interview: The following enquiry was sent “Can Mark confirm how many of the 70 contributors to the Ask Autism training modules have been paid.”
The NAS subsequently confirm the following “28 of the 74 contributors to the Ask Autism training modules were paid. Others contributed via Survey Monkey and so were not paid.”
The above NAS statement seeming to confirm that only those who contributed to Ask Autism via Survey Monkey have not been paid does not seem to be accurate as Ask Autism contributor David Mery explains below.
Ask Autism Contributor Case Study
“In August last year [2014] I was contracted as a ‘consultant’ to be filmed for an Ask Autism training module. As this module has still not yet been published, I will not mention its topic. It is an area where much training is required so I am very keen for this module to be completed and for it to be of a good standard. When I was initially contacted to be asked if I was interested in participating in this module, I was told that the Ask Autism budget was stretched and that the NAS could only pay expenses. I expressed my unhappiness about this, but this was not open for negotiation although it was suggested there may be some money for reviewing the module.
The impression I got was that the Ask Autism staff was not given a budget to pay contributors and did not have the power to get one. The contract I was sent offered only expenses. I did reluctantly accept it as I very much want training on this topic to be widely disseminated, but it was a difficult decision. An hour was scheduled on August 12th to do the filming. Two NAS staff and two videographers were present, probably paid.
After an initial editorial interest in the topic of the module, all the emails I received were about administrative issues. The most time spent was on negotiating usage permissions for the video for which I was asked to give away many rights that had little to do with Ask Autism and its promotion. As I was volunteering my time and expertise, I was not willing for the NAS to make more money outside of the sales of this Ask Autism module without any sharing. I wished the same amount of energy spent by NAS arguing this release form had been spent discussing the editorial content.
When in September I received a reminder to send in my travel expenses – which I had said I would waive as I had travelled to the filming by bus and on the way back by foot – I asked if this was an invitation to re-open the discussion about a fair payment for my time, and was told ‘In regards to payment for your time, unfortunately we are unable to do this as discussed before the interview and noted in your contract.’
I was not given access to any of the existing Ask Autism modules, which would have been useful to ensure consistency of style across the modules; I have been promised access to the module I contributed to when it is published.
In March I was eventually invited to a closed testing of the module and I discovered I was the only interviewee in this module. There were some serious editorial issues on which I provided feedback and I believe these are being worked on before the module is finalised, but communication has been limited. With some other autistics, I was promised in January, independently of my discussions with the Ask Autism team, that all the 70+ contributors to Ask Autism would be given access to all the modules; this has not yet happened and the only module I’ve seen so far was the one I was given five days to review.
I regularly volunteer for several other charitable projects and am very happy to do it for the good of the community. However when income is generated as part of the activity it should be shared fairly. For example, one of the charities I volunteer for also occasionally has paid events; for these the charity pays ‘volunteers’ a very reasonable one-off fee. As the Ask Autism training modules are a commercial offering of the NAS, even for its members, I would have expected some payment.
The NAS has in its vision a world where an autistic ‘lives with dignity and as independently as possible’, along with a mission to ‘involve, inform and empower people living with autism’. For the NAS not to pay fairly all its autistic contributors to reflect their expertise and the work they have done, to help them make a living and have an independent life is hypocritical as it goes against the NAS mission and vision.”
The sixth and last instalment touches upon the NAS position on the proposed autism marker on the Police National Computer:
Mark Lever: ’I know there’s talk about markers on some databases so that they can provide better support to people. […] I imagine [the information is] going to be self-disclosed, it would have to be self-disclosed I would think. I know there is talk in some systems about having autism flags so that they can better support people with autism but that would have to come from self-disclosure I would think.’
I wrote a detailed analysis about this proposed autism marker in the post Police marking of autistics.
It is well worth reading the full interview and what happened after, when Lydia Andal was checking information with the National Autistic Society’ PR team. In one of the changes to a quote by Mark Lever requested by the PR team (in part 5), they asked to remove
‘[W]e’ve never been a bio-med type charity […] people on the spectrum deserve to have all the support they can get to achieve their potential. That’s where we come from and that is no different to anybody else actually that they should have the right to get that support to achieve their potential.’
No similar statement or an endorsement of the social model of disability is available on the website of the National Autistic Society.
The South London and Maudsley NHS Foundation Trust (SLaM) has attempted to cover up what happened during two related incidents on a mental health ward. On the night of 2012–10–01, at its River House facility, 48 Metropolitan Police Service (MPS) officers were deployed, including officers from armed and dog units, and four Territorial Support Group (TSG) officers drew their Tasers on the mental health ward. The police cannot find its own investigation report. SLaM has eventually published a version of its investigation report with many fewer redactions remaining, in response to my multiple freedom of information requests and an eventual decision notice of the Information Commissioner’s Office.
You can now find out much of what they didn’t want you to know.
The mostly underacted 105-page report, released on 2015–02–25 is available here (in case this redacted report is updated or removed, a copy, as originally published, is available here). For comparison, the extensively redacted version, released on 2014–05–28, is available here (and a safe copy of it, here)
p. 29 in the 2014 and 2015 versions of the report.
What follows are excerpts from the SLaM investigation report which were blacked out in the earlier more extensively redacted release.
‘Three patients (patients A, B, and D; all black) out of the four patients involved were placed in SC [Supervised Confinement]. The fourth patient, (patient C; a white patient), was initially left on the ward, despite concerns raised by staff that this could lead to further disturbance.’ p. 11 (first incident)
‘Incident 2: followed on almost immediately from the first incident, when patient E (a black patient) approached staff demanding an explanation as to why patient C had remained on the Ward. Patient E believed that there was a racial motive which led to staff assisting the police to place three black patients in supervised confinement, whilst a white patient was treated more favourably.’ p. 11 (Emphasis added)
’The UC confirmed that patients A, B, C, and D were involved and that prominent amongst these patients was patient C [a white patient].’ p. 24
’Patient B [a black patient], had by this time, calmed down considerably and although remained verbally threatening and abusive, obeyed police instruction, sitting on the floor with his arms above his head allowing the police to handcuff him. The police placed a clear plastic cover over his head to prevent him from moving his shoulders and elbows. He was initially ignored by the police until several promptings by staff. He was escorted by the first on-call CAG [Clinical Academic Group] manager and the police to SC on Norbury Ward.
Patient C [a white patient] was left sitting in the day area, as if he had played no part in the riot, despite all earlier insistence from staff that he had been a significant player in the disturbance. He was not handcuffed, as patients B and D had been and he was not taken off the ward. He was allowed to continue to remain in the TV lounge.
Patient A was considered by staff to be a behind-the-scenes orchestrator and manipulator.
According to staff statements, the police, after entering the unit, ignored the request of staff to treat patient C (a white patient) the same way as they had treated the other three black patients.’ p. 29 (Emphasis added)
‘Just before the police finally retired staff complained again about patient C [a white patient] remaining on Spring Ward. Therefore, a decision was taken to nurse patient C in the ICA on Spring Ward and to offer him prn medication. Two staff were were deployed on 2:1 observations with this patient.’ p. 30
‘These patients asked staff why one of the main activists [sic] (patient C) in the earlier incident, was left on the unit, while three other patients (all black) had been handcuffed and taken off the unit, accusing them of being racist for transferring three black patients into SC and leaving the white patient on the ward. Patient E (a black patient) approached staff around the nursing station demanding an explanation as to why patient C remained on the ward. Notwithstanding explanation from staff, patient E believed there to be a racist motive in the way black patients had been treated, accusing staff of assisting the police.’ p. 31 (Emphasis added)
’At 2347 the incident was considered by xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx to be “otherwise so dangerous” that Trojan (armed police officers), Dog Units and London Ambulance Service (LAS) were requested.’ p.23
’At 0052 there were in excess of 20 police officers on site; some in standard police uniform and others in tactical wear, carrying Tasers, shields and batons.’ p. 24 (Emphasis added)
’On arrival of Trojan [armed police officers] (unspecified in the police log), tactical advice was given, as per standard practice, with regard to use of fire arms. However, Trojan was stood down, as was the Bromley Borough Response team, as TSG [Territorial Support Group] would take the lead in entering Spring Ward.’ p. 27
’TSG entered Spring Ward from the fire road entrance via the airlock leading to the ICA and to the main ward in “strict compact riot formation (regimented crowd control)” armed with shields, visors, batons and Taser guns. Taser guns were not used.
Comment: According to some statements, patients who were already asleep and who were in no way connected to the disturbance were forced to leave their bedrooms by police officers, even though staff kept signalling to the officers that the real culprits were in the corridor and in the TV lounge.’ p. 28 (Emphasis added)
’Comment: Most patients played no part in the riot. Nevertheless they were forced to leave their rooms (with the exception of patient F who was SC) as part of the tactical intervention made by the TSG. Some patients subsequently reported their sense of distress to xxxxxxxxxxxxxxxxxxxxxxxx but there is nothing recorded in the notes to this effect, even though there were potential safeguarding issues at stake. Attempts to secure further and better particulars about the methods used by the TSG have been unsuccessful.’ pp. 28–29 (Emphasis added)
‘It took eight weeks to secure material from the Metropolitan Police. Requests for further and better particulars have been unsuccessful, despite several reminders on matters which were explored at interview with an Inspector from Bromley Borough Police.’ p. 15
‘Although, according to some evidence, an agreement had been reached with Bromley Police Station that there would be police presence at the point of patient F’s transfer. When this was requested on 29/09/12, it was not forthcoming.’ p. 15
’At 2317 a third call was made to request ‘riot police support’ - CAD 9864. This was recorded on the police log as three patients had started rioting in the first instance and that all thirteen (patients) had now joined in; that suspects had metal poles and were trying to break the windows where the staff had retreated for security and that if the patients broke the windows, the staff would all be killed because patients had committed murder before.
Comment: This account is inaccurate, either because of what the police were told or because it was misconstrued in the translation. Most of the patients were sleeping or at least in their own bedrooms. There were no metal poles involved, although three patients were continually throwing a large metal bin with force at the window of the nursing station.’ p. 22 (Emphasis added.)
‘When the police declared incident 1 to be a Critical Incident’ p. 80
’A decision was taken to prepare oral prn midazolam 10mg as well as to draw up 7.5mg of midazolam for intramuscular injection. This was because the team determined there be to be a likelihood of patient D refusing oral medication. This was based on previous knowledge of him.
Comment: Preparing intramuscular medication at the same time as oral medication falls outside the ideal standard of practice. Whilst the Trust policy does not give guidance on this matter, NMC guidance (Standard 14: Standards for medicines management (NMC 2007)) is clear. However, under the circumstances and on balance, the Independent Team acknowledge that the specific situation required a degree of flexibility and staff initiative. The Independent Team accept that in some circumstances both oral and injectable medicines can be prepared simultaneously but that the injectable form of the medicine should then be stored in a readily accessible place and not handled in front of the patient at the same time that the oral medication is handled.’ p. 17 (Emphasis added)
’patient B smashed the oral medication out of the hand of the UC, spilling all the medication and water on the floor, along with the intramuscular medication, which according to some statements was concealed out of sight when it had been taken as a contingency measure, should patient D refuse oral medication.
Patient B accused the staff of bullying patients.’ p. 18 (Emphasis added)
‘The HCA [Healthcare Assistant] told the Independent team that as the ‘triggers’ associated with incident 1 were known to staff, that arguably, it was possible to foresee what would happen, once a decision was taken to offer patient D prn medication and how patient B would react to this. Patient B is known to object to the use of medication and tends to act as an intermediary between a patient and a staff member, often to try to ‘whip’ the situation up. In the opinion of the HCA, the situation could have been pre-empted and the police should not have been called.’ p.19 (Emphasis added)
‘The UC [Unit Coordinator] advised some staff to withdraw and to assemble in the nursing station for safety, as the situation was getting out of hand.’ p. 18
‘staff retreated to the nursing station’ p.19
‘Patient F remained unsupervised in SC [Supervised Confinement] once staff in the ICA [Intensive Care Area] and the nursing station had been evacuated from the ward. The first on-call CAG manager (a Registered Nurse) saw patient F on two brief occasions, with a police escort, to establish that he was breathing and not in too much distress.’ p. 28 (Emphasis added)
‘According to a statement from an Inspector from the Metropolitan Police, numerous requests were made to ascertain the names of those involved and risk assessment details, but there were no staff on duty able to provide such information, with no contingency plan, other than calling the police for dealing with such a disturbance. There was discrepancy between this statement and the evidence given by the UC.’ p. 21 (Emphasis added)
‘The UC and three other staff retreated to the nursing station to summon help.’ p. 31
’Comment: Given the severity of the situation the presence of an RC [Responsible Clinician] would have been appropriate. There was no senior medical presence for either incident 1 or 2.’ p. 33
’Eight patients, including patient I, deemed very vulnerable, were left without access to any staff or care.’ p. 34 (Emphasis added)
‘Operation Metallah, a joint BRH/RH - Bromley Metropolitan Police protocol, with an operational implementation date of 20/04/13 – document received.’ p. 84
‘Operation Metallah, undertaken with the Bromley Metropolitan Police, in recognition that a new way of working was required to ensure optimal coordination and management of resources and sharing of information when police assistance is required, whilst not directly commissioned as a result of events on the night of 1st October 2012, has been influenced by it.’ p. 85
‘Operation Metallah - Joint Trust/Bromley Metropolitan Police protocol for responding to requests for police assistance at BRH, April 2013’ p. 104
‘Operation Metallah - Joint Trust/Bromley Metropolitan Police protocol for responding to requests for police assistance at BRH, April 2013’ p. 104
‘SC - Supervised confinement (seclusion)’ p. 105
‘Trojan - Metropolitan Police Firearms Unit’ p. 105
‘TSG - Tactical Support Group (Metropolitan Police)’ p. 105
It would have been useful to get the Metropolitan Police Service (MPS) version of their intervention at River House that night, especially as from SLaM’s investigation report it would appear some TSG officers behaved in a racist way and caused undue distress to several vulnerable patients. An internal MPS email explains that ‘I have been informed that on [sic] Incident Management Log was created however despite searches on [Bromley] borough and with the senior investigating officer I have not been able to locate this document. Furthermore one document refers to a meeting in which this matter was to be discussed , again no further information could be found in respect of this meeting which may or may not have occurred.’ Following a complaint about the loss of this important document, the investigation log at an incident declared to be critical, the Information Commissioner’s Office wrote that ‘I have been advised by the MPS that searches for the log, which would be in hard copy rather than electronic, have failed to locate anything. Senior Officers connected to the event have been contacted but to no avail. The MPS have stated to me: “Unfortunately, in this instance the log in question cannot be located and is therefore, on the balance of probability not held”.’
So far, it has taken eleven freedom of information requests (to SLaM, the MPS, the Independent Police Complaint Commission, the Care Quality Commission and to Monitor), too many complaints to the Information Commissioner’s Office and a decision notice to uncover what has just been exposed that the South London and Maudsley NHS Foundation Trust and the police didn’t want us to know.
Some of these revelations are shocking.
There are still some redactions, which are likely unwarranted and, if so, in breach of the the decision notice of the Information Commissioner’s Office. The only valid exemption, agreed by the Information Commissioner’s Office, is for third party personal data which explains that most names are still redacted. It is more difficult to understand how the use of this exemption can be justified to miss pp. 39–67 from the table of content (on p. 2), and that from the middle of p. 40 to the middle of p. 65 the content is still entirely blacked out. From the headings just before and after these redactions, the redacted text must concern some of the findings of the investigation.
[Update 2015-04-24] The Information Commissioner’s Office has now compared the redactions made by SLaM with the steps prescribed in the decision notice and concludes:
‘From my analysis of the redacted and unredacted versions of the report, I am satisfied that SLAM has generally acted in accordance with the Commissioner’s instructions and therefore complied with the decision notice. This finding also applies to SLAM’s decision to withhold pages 40 – 65 in their entirety.’
Here are my previous posts about this incident:
And also some of the internal SLaM correspondence and internal MPS correspondence about my earlier FoI requests.
First published on 2015-04-06; last updated on 2015-06-24 to add details about compliance of remaining redactions.
German broadcaster Deutsche Welle was filming earlier this month a segment in Trafalgar Square for its series Focus on Europe - Spotlight on People.
The topic was how pervasive video surveillance is in the UK and the opposition to it by organisations such as No CCTV:
No other European country keeps as close a watch on its citizens as the UK. For years, the government has been broadening its powers of surveillance in the name of security. In other nations, its laws would long since have been considered breaches of privacy. Now opposition has also been growing in Britain.
I was interviewed for it and briefly appear 3’10" in the short programme.
A parliamentary written answer about creating an autism marker on the Police National Computer (PNC) was recently answered:
Lord Touhig (Labour)
To ask Her Majesty’s Government what progress has been made in considering whether police marker systems used to identify those with mental health and learning difficulties can be extended to those with autism as proposed in the report Think Autism.Lord Bates (Conservative)
Work is continuing to establish whether a separate marker, specifically for autism, can readily be added to the Police National Computer in addition to the existing mental health marker, and to assess potential impacts on police force IT systems.
A follow-up written answer clarified the implementation plan:
Lord Touhig (Labour)
To ask Her Majesty’s Government, further to the Written Answer by Lord Bates on 5 February (HL4542), whether there is a deadline for completing work to establish whether a separate marker, specifically for autism, can be added to the Police National Computer […], whether the current police information technology systems are capable of accommodating an additional marker, specifically for autism, to be added to the Police National Computer.Lord Bates (Conservative)
For the purposes of speed of implementation it is proposed to use an existing marker to encompass cases of autism rather than developing a specific marker, which would require further significant work and assessment. These proposals are expected to be considered by the Police National Computer Board within the next month.
The National Autistic Society’s (NAS) Policy & Parliamentary team provided a note titled Further information on Government proposals to establish a marker for autism on the Police National Computer. I am copying its content below and interspersing with some comments:
What is proposed?
A Police National Computer (PNC) record is created for anyone who is charged with an offence or receives a fixed penalty notice, community-based service, or caution. This may be for first time or continued offending.
This is incorrect. ‘The PNC holds details of people who are, or were, of interest to UK law enforcement agencies’. A PNC record is created at arrest and is retained until the individual becomes 100 year-old (if there are several dates of birth on record, the first one is used). See Notes on the Police National Computer for more details on the PNC.
Current Government proposals are to include a marker on these records that alerts criminal justice workers to a person’s autism. The Government’s proposal is to record autism within the “AT” marker, rather than to take longer creating a new marker: The AT marker signifies ‘Ailment’ and will remain on the record for the life of the specific record (e.g. being acquitted or the record being expunged). There is room for 60 text characters (max) to accompany the marker, e.g. “has autism, needs support”.
The NAS persists in its use of the offensive person first terminology (‘has autism’). Autism is an integral part of who we are and how we experience the world. Identity-first language should be preferred (’is autistic). Someone does not have Englishness or jewishness or left handedness, or autism, etc. One is English or jewish or left handed or autistic. This page has a good explanation of this semantical issue.
The NAS recognises that the use of the phrase “Ailment” is unfortunate. However, this will mean that information about someone’s autism can be recorded more quickly. It is important that criminal justice professionals receive training so that they can interpret this marker, know about the nature of autism and make suitable adjustments. To this end, the NAS is working with the Cross-Government group on autism and the criminal justice sector to develop training resources for professionals.
The NAS also believes that, while the recording of autism under the AT marker will provide a quick solution in the short term, the relevant authorities should continue to look to create a separate, more appropriate, marker that could record autism (and potentially other non-medical or non-mental-health conditions).
Even though the NAS finds the current proposal ‘unfortunate’ and short term, its policy advocates for the creation of a ‘marker that could record autism’ (and potentially other neurodivergences).
This is very concerning, as it is advocating for what will effectively be a database of autistics for policing purposes. That the records have to already exist to add such a marker is not as much a safety as it may look; one only has to remember the claims that Police ‘have made arrests just to get people on to the DNA database’. Such a database would criminalise and stigmatise autistics. Being autistic is not criminogenic; if anything it may increase the risk of being victim of crime.
Also there are many autistics who have not yet realised they are autistics. Would this marker apply solely to autistics having followed the medical pathway and been medically diagnosed? If the criminal justice system (CJS) became over reliant on such a marker, it would create the additional risk that the many autistics not having the marker would not be dealt with adequately.
Another unaddressed issue is what criteria would be used to decide to set such a marker for an individual? Does this imply that autistics would be forced to disclose their autism? Whether and when to disclose is an an individual right. This right to choose cannot be so lightly ignored.
What could be useful to record in a database accessible to emergency call handlers is communication needs, e.g., whether some one uses BSL as first language, is unable to make voice calls, may need an independent advocate, etc. That would still be useful only for those on this database so is a very limited solution.
What does this mean for a person with autism?
For most people with autism, this will have no effect at all as it only adds a marker to existing PNC record (i.e. there must have been a caution, charge or sanction).
If it will have no effect for most autistics, then what is the point of advocating for such a marker? What is the point of creating an ineffective, criminalising and stigmatising marker, albeit on a pre-existing PNC record? There are better solutions to improve the actions of those in the criminal justice system towards all autistics.
This PNC project is designed to make it easier for the police to know if a person has been diagnosed with autism so that they know they may need to make changes to their usual practices and make sure they are explaining what is happening so that it is understood. We believe that, on the whole, this could be useful for police and may help a number of interactions between people with autism and the police from escalating.
The NAS has heard of situations where, for example a confrontation between police and a person with autism has escalated because of the shouting of confusing/mixed instructions. While the marker will be limited to people who already have a PNC record, one possible virtue of the marker is that police would be alerted to a person’s autism and know to approach an arrest differently. This cannot replace appropriate training of criminal justice professionals, but would be intended to help those with training identify appropriate responses much more quickly
Good training is indeed essential. Some researchers, police officers and the Home Affairs Committee also agree. Police need to understand that atypical behaviour is just a different behaviour and not a sign of criminality. Some of the reasons given by the police for finding my behaviour suspicious and wrongfully arresting me were that I had avoided eye contact with them (a failure to interpret social cues appropriately) and was wearing a jacket allegedly too warm for the season, both of which are common autistic behaviours.
Training for the police and others in the criminal justice system on common autistic behaviours and sensory issues would be particularly helpful.
How can this information be used?
Given the sensitive nature of the information, it is vital that it is not used improperly – especially to stigmatise people with autism or to fuel misconceptions about them. We have asked criminal justice representatives how the proposal means the information within the marker will be used. This section summarises their response.
This is nice wishful thinking, but there are examples of the PNC, including information of a sensitive nature such as DNA profiles and photographs, used improperly. For an innocent to become an honorary criminal by being on a police database is stigmatising. If there’s an autism marker, it would be surprising for it to never be used improperly.
In data protection terms this information is classed as sensitive personal data so permission of the individual concerned should always be sought by any non-police agency seeking inclusion of relevant marker on PNC.
Police does not seek consent for inclusion of information on the PNC. If the information is to remain under the control of autistics, then a much simpler mechanism is to carry a card briefly explaining that one is autistics and possibly including some basic interaction advice. If one cannot talk to explain they are autistic, they may show their card, and if handcuffed, the police will find the card when searching the individual. The police must treat all who have special needs appropriately whether these are expressed verbally or with a card. And an autism alert card can be used in other settings as well.
As regards to data protection, databases have incorrect information, information can leak (or become lost on a train) and databases can be used for surveillance. Not entering additional information, especially in a police database, avoids all these issues. (After the police decided to take no further action in my case, they forgot to update the PNC accordingly for many months, in breach of the Data Protection Act. This is not a theoretical issue.)
The marker would be present for protective purposes. Suggested examples of (policing) decisions which it would usefully influence:
- Police contact on the street with someone presenting in a way that is perceived by those police as unusual - a PNC “body check” (police speak for a record check based on name and date of birth) would result in the PNC operator disclosing existence/nature of any warning markers to the officer and this could influence the outcome of the contact, possibly avoiding arrest.
- Support measures put in place for previous offenders who are victims or witnesses at a later date.
- Where a criminal offence has apparently taken place, awareness that the suspect has autism would bring a number of other factors into play, i.e. necessity to call police healthcare provider to triage/assess fitness for further process and interview, ask for Appropriate Adult (AA) service, information as to rights and entitlements provided in presence of AA, provision of solicitor, arrangements for interview format to be adapted so appropriate for autism.
- Police/CPS decision on criminal justice outcome would be appropriate to nature of offence and needs of the individual and may include diversion to aftercare service.
- For courts and prisons it is expected that this would result in similar protective arrangements - including extra vigilance in a prison context to ensure that the prisoner is appropriately supported as vulnerable and not abused.
The NAS’ position
The NAS believes that the central issue for improving experiences of the criminal justice sector for people with autism is ensuring that all professionals have a good knowledge of autism and the changes that they need to make to practices and environments. We are currently working with the College of Policing to improve training for new police recruits and pushing for more training for other professionals.
Improving training is a positive step. Awareness is essential, but not sufficient. Acceptance of neurodivergences is what is needed.
In order to ensure that the right changes can be made, it is vital that the police, or other criminal justice sector professionals, know that someone has autism as soon as possible. There are a number of ways that this can be achieved: e.g. autism alert cards, encouraging people to declare their autism without fear of prejudice, improving training so professionals can identify the signs. A marker on the PNC is one other way that this could happen.
We believe that there are important safeguards that must be included, to ensure that sensitive data is used appropriately. Professionals must be sufficiently knowledgeable about autism to know that having autism is not an indicator of criminality or guilt. The marker should only be used in ways that will allow a person with autism the same protection of the law and access to justice as any person.
It is discriminatory and wrong for the police to keep markers which have nothing to do with criminality on categories of individuals for most of their lives. Police keeping tab on innocent inviduals is typical of a police state, not of a liberal democracy. Having an autism marker on the PNC will criminalise autistics. As was expressed in the European Court of Human Rights judgment in S. and Marper v. the UK: ‘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.’
By focusing on a marker identifying autistics, this discriminatory approach, rather than addressing the root causes of how traumatic encounters with the criminal justice system too often are for autistics, further legitimises the current societal attitude of blaming autistics for their poor treatment.
A much better solution to the problem this tries to address is two-fold: training of those in the criminal justice system and autism card schemes. Voluntarily carrying a card can help an autistic encountering the police to clarify that some of their behaviour may be atypical. A card is fully under the control of the individual. It is a helpful communication tool, not an ID card or get out of jail free card. And such cards can be used in other situation where communication may be difficult.
The police must serve all of society with respect and humanity. Autistics deserve equal treatment and the forced disclosure of our neurology to ensure ‘equality’ cannot be a requirement. The police need to be aware and more accepting of all neurodivergences, including of autism. An increased acceptance that many experience the world differently, would be of benefit to more than just autistics.
Hopefully the NAS will fully consider the many problems and risks of such a marker, review its policy and use its influence to help stop this proposal going any further.
This post was written in collaboration with Kabie Brook, chairperson of the Autism Rights Group Highland (ARGH). ARGH has designed an autism alert card available to all autistic people, children or adults, across the UK and carried by several hundreds autistics.
Bootnote:
Some other recent parliamentary debates and written answers about autism:
Improving access to the criminal justice system and victim support for people with ASD.
Understanding the causes of autism spectrum disorders and speeding up diagnosis.
Written answer about the training of police forces on autism
The Discovery programme on BBC World service broadcast an episode on the throwaway society on 2015-02-16:
Hundreds of millions of computers, mobile phones and televisions are thrown away every year around the world. In this week’s Discovery Gaia Vince will be looking at the reasons behind this rapidly growing mountain of electronic waste and asking, who is responsible? The manufacturers or the consumers? When our gadgets break, maybe we should just be repairing them. And Gaia attends a party where people are fixing stuff for themselves.
The half hour programme can be listened to on the BBC Radio Player.
Some of the interviews were recorded at a Hackney Restart Party. My interview starts at 19:21.
Bootnote: Other blog posts about The Restart Project:
For the past two years I have been attempting to uncover what happened during two critical incidents that occurred at the River House facility operated by the South London and Maudsley (SLaM) NHS Foundation Trust on 2012-10-01. I eventually exposed that 48 Metropolitan Police Service (MPS) officers were deployed and that four TSG officers drew their Tasers on the mental health ward.
Using the Freedom of Information Act, I got SLaM to initially publish a redacted summary report and then to unredact it, fully. This revealed it was hiding a full report. Using that information, I got it to publish an extensively redacted version of the full report. After an internal review in which SLaM found it was justified to do all these redactions on health and safety, and third party personal data, last week, the Information Commissioner's Office (ICO) disagreed and decided against SLaM:
South London and Maudsley NHS Foundation Trust
21 January 2015, Health (NHS)
The complainant has requested a copy of an investigation report that was commissioned to investigate an incident that occurred on a ward at the South London and Maudsley NHS Foundation Trust (the Trust) in late 2012. The Trust initially relied on the future publication exemption (section 22) in FOIA to withhold a version of the report. Upon its publication, parts of the report were withheld under the health and safety (section 38) and third party personal data (section 40(2)) exemptions in FOIA, although these were later released to the complainant. However, during the course of the Commissioner’s investigation it became apparent that the Trust had only considered a summary of the report rather than a version containing the complete findings. A further partial disclosure of the complete report was made with the remaining information withheld under sections 38(1)(b) and 40(2) of FOIA. The Commissioner has found that section 40(2) but not section 38(1)(b) of FOIA is engaged. He therefore requires the disclosure of the information to which section 38(1)(b) has been applied. The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court. [Emphasis added]
FOI 38: Upheld FOI 40: Partly upheld
Here are my previous posts about this incident:
SLaM has to publish an unredacted version of its full report that complies with the ICO's decision by 2015-03-25.
The Protection of Freedom Act 2012 introduced more restrictive rules about the retention of DNA profiles of individuals on the National DNA Database (NDNAD) including the deletion of the DNA profiles of most individuals who are not charged (No Further Action) or acquitted. This was a change welcomed by activists who had been campaigning that keeping tabs on innocents should not happen in a liberal democracy and that it does not make policing more efficient (adding hay to the hay stack makes finding the needles harder). What would have increased the crime detection rate would have been to fund for more DNA profiles from crime scenes to be added.
As of 31 March 2014, the National DNA Database held 5,716,085 DNA profiles from individuals down from 6,737,973 a year earlier, and 456,856 DNA profiles from crime scenes up from 428,634 a year earlier. In 2013-14, 1,384,905 DNA profiles from individuals were deleted from the database. Of these, 1,352,356 of these were deleted under the provisions of PoFA; 31,690 profiles taken by Scottish forces were deleted under Scottish law. A further 6,837 crime scene profiles were deleted because the crimes had been solved.
I wrote nearly three years ago:
It is a success for all the privacy activists and victims who campaigned to restore the presumption of innocence and the rehabilitation of offenders having been convicted of a minor crime. GeneWatch UK –as an indefatigable organisation at the forefront of the campaign to change the law to make the National DNA Database much smaller and more carefully controlled, and to safeguard privacy and rights without compromising the use of DNA in fighting crime– deserves much credit in this success.
Last month the government eventually agreed with what we had said all along. Lord Bates, Lords Minister and Minister for Criminal Information, Home Office in his ministerial foreword to the National DNA Database: annual report, 2013 to 2014 recognised that:
The reduction in profiles held from innocent people has not led to any reduction in the number of matches the database produces. In the quarter from 1 April to 30 June 2014, the database produced 37 matches to murder, 127 to rapes and 6,111 to other crime scenes. In the same quarter of 2013, when the old system for retaining DNA was in effect, it produced 37 matches to murder, 103 to rapes and 6,141 to other crime scenes.
[Emphasis added.]
Chris Sims, Chair, National DNA Database Strategy Board Chief Constable, West Midlands added:
The NDNAD match rate on loading a crime scene profile reached 61.9% in 2013–14. This was the highest annual rate yet and shows the success of the NDNAD in detecting crime and protecting the public.
The NDNAD Strategy Board showed some surprise at this outcome at its September 2014 meeting, but could not find any error in the draft annual report!
4.6 MC presented a draft of the National DNA Database Strategy Board’s Annual Report for 2013–14 (Paper 4.1) to the Board. He thanked Carl Jennings for his hard work on the report. He said that this was the first report since the implementation of PoFA. The proportion of profiles from innocent people had fallen from 50% to 3%. He reported that the number of profiles on the database had fallen from 7.2 million to five million but that the match rate had had in fact risen slightly from 59% to 62%. He had checked this with KF and they could not find any errors with the figures. JA said that the increase in match rate was not expected; in fact, a decrease had been anticipated. She asked if the number of crime scene profiles had reduced. MC said that the report would be published as soon as the Board were content. CS added that it was good that we were near publication.
4.7 CS asked if we had got the chronology on the deletion of samples correct and MC confirmed that we had. Batches of deletions took place in fairly short timescales (for example over a weekend). CS said that we needed a proper review of PoFA implementation and MC added that any analysis of implementation must be independent and not carried out by the police or the Home Office. CH added that such a review would need ministers’ co-operation as well as funding and an appropriate experimental design. AP said that the scientific design committee could input into any such review.
[Emphasis added.]
Blanket and indiscriminate surveillance is not the solution. It is neither necessary nor appropriate.
Bootnote:
Retention periods for DNA profiles and fingerprints (as presented in the annual report).
1. Non-convictions:
| Occurrence | Fingerprint and DNA Profile Retention |
|---|---|
| Minor offence – arrested or charged | None – but speculatively searched |
| Qualifying offence* – arrested not charged | None, but in exceptional cases on application to the Biometrics Commissioner, three years retention may be authorised, plus two year extension by court |
| Qualifying offence* – arrested and charged | Three years plus possible two year extension by court |
| Minor offence – Penalty Notice for Disorder | Two years |
2. Convictions (include cautions, reprimands and final warnings):
| Occurrence | Fingerprint and DNA Profile Retention |
|---|---|
| Under 18 – Convicted of a minor offence | First conviction: five years (plus length of any custodial sentence), or indefinite if the custodial sentence is five years or more. |
| Under 18 – Second conviction | Indefinite |
| Under 18 – Convicted of a qualifying offence* | Indefinite |
| Adult – Convicted of an offence | Indefinite |
*Qualifying offences are serious violent or sexual, terrorism and burglary offences.
Where an individual has more than one arrest on their record, the longest retention period will be applied.
Should police officers behave differently with autistic suspects? Two recent commentaries support the changes I suggested in my written evidence to the Home Affairs Committee.
Researchers found that conventional police interview techniques are not effective for people with autism:
Police find interviewing and interacting with witnesses and suspects with autism a real challenge, a study has revealed - highlighting that the ways officers have been taught to interview are at odds with what is needed in these situations. Existing interview techniques tend to focus on open questions, only later narrowing down to closed questions, but research shows that people with autism may need focused questions from the outset.
The Economic and Social Research Council (ESRC)-funded research studied what does, and does not, work when police interview people with autism. The researchers - Dr Katie Maras, University of Bath, and Dr Laura Crane, City University London - are calling for better training of police and criminal justice professionals as, at present in the UK, these groups currently have no standard compulsory training about autism. […]
My experience of the police interviewing process, as described in my evidence, matches this research:
10. As I was innocent and did not know any better at the time, I made the mistake to refuse to call a solicitor. During the police interview, one question particularly bothered me. The interviewing officer after asking me questions about my laptop such as 'has it got anything on there about public underground?' and 'has it got anything on there about plans for any terrorism act?', asked 'has it got anything on there that might be construed as causing a public nuisance?'. The correct answer would have been 'yes' as I have a word processor, an email client, etc that could all be useful to a terrorist and most likely can be construed to be of use for anything including causing a public nuisance. However, I also realised that answering the positive would not be helpful to me and challenged the question when the investigating officer just wanted answers.
An obvious way forward to make police encounters less damaging to autistics would be to improve training. Inspector Michael Brown, who is on secondment to the College of Policing as Mental Health Coordinator, recommends on his Mental Health Cop blog to have autism awareness training for police officers:
[…] I've argued before that I see the point of specific autism awareness training for police officers because we know that where officers deal with incidents involving someone with autism there could be considerations that wouldn't necessarily apply to other situations, if they can be accommodated. I'm not sure if that could be said of all of the above conditions, however. Would it matter to the policing of an emergency mental health incident whether someone who appeared to be in distress was psychotic because of schizophrenia or because of bipolar or because of Addison's disease? Probably not. […]
These two commentaries support the recommendations I made to the Home Affairs Committee:
12. An essential recommendation would be for all front-line police officers to receive some training about the autism spectrum. This training ideally would involve those on the autism spectrum. I understand that a few police officers have had sessions with the Asperger London Area Group (ALAG). This training should be made more generally available.
13. At the very least, front-line officers should read the ACPO-endorsed Autism: a guide for criminal justice professionals publication of the National Autistic Society.
14. With such training it is hoped that police officers realise that a behaviour different from that of a neurotypical is just different rather than suspicious; consider hyper- and hypo-sensitivities that the public they interact with may have; and use clearer interviewing questions.
The Restart Project is publishing on its blog a series of profiles of regular restarters. I was featured in the second profile. Here's a copy of the post:
Restarter Profile: Meet Panda
Tell us a little about yourself.
I moved to London from Paris twenty-one years ago. I have studied computer science and criminology, and worked as a software developer, a technologist and a journalist. I am autistic and have been described as ‘calm, almost too calm’.
When did you start repairing electronics and electricals?
Before the web had been invented. A lot of my early repairs were telecoms related: RS232 cables, modems and phones, and computers as well.
Why do you attend Restart Parties?
To empower others to regain control of their devices. For more than thirty years I’ve been demystifying new technologies and software development, initially, and how to reclaim our civil liberties, later. The collaborative repairing going on at Restart Parties are occasions to demystify repair and to empower participants to fix their electronic and electrical devices. It is for this transformative process, when people realise that many repairs are accessible to them, that I am involved with the Restart Project.
What is your favourite kind of repair?
The variety is interesting, but what is most gratifying is when someone arrives hoping for a free fix and leaves having fixed their device mostly on their own. It is the process of discovery, when they realise that they are already knowledgeable: that if they have changed a fuse they likely understand the need for electric continuity; that if they have ever touched a lit lightbulb they likely realise that electric devices get hot. Fixing their device is a small step from that knowledge: when a device stops working, first steps are to check that everything is still connected, that electricity flows, and that there’s no dust or crumbs blocking any fan so the heat is not trapped inside. The next realisation is that some simple tips go a long way: how not to end up with a pile of screws, use a pill box or an egg carton to store them so it’s easy to find which screws are used at which step when time comes to reassemble things. The skills needed for such repairs are a lot of common sense, some limited experience (learnt in the process), good research skills and access to a few tools.
What do you do when you are not Restarting?
Learn, research, occasionally write. Check on the welfare of the detained persons by making unannounced visits to the custody suite of police stations. Write (too many) Freedom of Information requests. Walk.
What frustrates you (in life)?
Injustice. Noise. Surveillance. Crowds. Deaths in custody. Cars. Waste.
What gets you out of bed in the morning?
Restart Parties, Qi Gong, police custody visits, mornings of mindfulness, conferences. Though mornings are difficult and best avoided.
What’s the first thing – one material thing – that you could not live without? (besides oxygen, food, water, and shelter and medical care)
In this weather, a hat.
Share something cool with us [preferably a link]
Bootnote: Read an earlier post about my experience of becoming a restarter.
After
my unlawful
arrest in July 2005, I complained to the Independent Police
Complaint Commission (IPCC) and then appealed the outcome of the
supervised investigation. After deciding not to uphold my appeal, the
Independent Police Complaint Commission (IPCC) closed my case file seven
years ago. On 2014-06-19, the seventh anniversary of its final
correspondence about my appeal, the IPCC was due to delete the electronic
content of my case file and destroy its paper content.
When reminding the IPCC of this deadline, I requested to witness the occasion. This was refused:
Unfortunately, it is not possible for you to witness either the destruction of the hard copy file or deletion of the electronic file but we will send you confirmation of their destruction once this has been done.
At a time when the IPCC is trying to regain the trust of the public it is disappointing that such requests cannot be accommodated. However on 2014-06-20, IPCC's Records & Archives Manager confirmed it had all been done:
I am pleased to confirm that the documents held in the electronic file of your case were deleted yesterday morning. I confirm that four paper files were also destroyed at the same time.
I attach a spreadsheet detailing the electronic documents that were deleted. I am unable to list the contents of the paper files as we do not maintain an index of each paper document destroyed, only the fact that the file has been destroyed. Included in the spreadsheet is reference to the destruction of the 4 paper files.
The attached spreadsheet listed the creation date, record number, title and container title (the case reference number) of 32 electronic documents that had just been deleted and the box numbers of the four paper files that had been destroyed.
I found it difficult to verify whether the spreadsheet listed all the documents I knew the IPCC held. Some of the dates did not match that of the documents I had obtained with a subject access request and most of the documents I had did not have titles. I was concerned that the IPCC might still be retaining some documents and requested a review of the deletion process. The IPCC's Records & Archives Manager explained on 2014-06-27:
In 2006 the use of a Electronic Document Records Management System (EDRMS) was in its infancy at the IPCC. At this time the majority of information was filed in paper files. Your case was allocated a case number 2006/007520 and documents for your case, whether in electronic or hard copy format, were filed against this number. The whereabouts of paper files were also recorded onto the EDRMS.
Electronic documents were either scanned or saved directly to the case file and dated with the date that they were added to the system, not the date of the document. As an example of this, the document cited in your email "Final Report Minute - Supervised Investigation' from the Casework Manager to the Commissioner dated 23/11/2006," is shown on line 18 in the spreadsheet as FR minute and dated 4 December 2006.
There were four paper files allocated to your case file number, these were files of some substance I am unable to say what documents were contained in the files as they have now been destroyed.
Following receipt of your email, I have carried out a search on the EDRMS which reveals that there are no electronic or paper files still in existence for this case.
Although all documentation is filed to the appropriate case file, in order to allay your concern that some documents have been inadvertently retained, I have spoken to the casework manager who had conduct of your case and to the commission secretariat to ensure that they have no documents relating to your case in their possession. In both cases they confirmed that they do not have any documents.
I am therefore able to confirm that all documents relating to your case have been destroyed in accordance with our retention policy.
Even after this apparently thorough review, I had some remaining concerns as to whether the searches may have missed documents with the case file reference mistyped or misspellings of my name (such typos were present in some of the documents). This had been considered:
I did carry out some searches using variances of both your name and the case number. These were done both on my initial search and the further search carried out last week.
It would have been easier to allow me to witness the deletions and destructions as initially requested.
The Metropolitan Police Service should delete their litigation and investigation files on 2015-09-02, six years after their last correspondence: their apology.
I have two ongoing complaints with the Information Commissioner's Office (ICO) about how the South London and Maudsley (SLaM) NHS Foundation Trust and the Metropolitan Police Service (MPS) are both responding to some of my Freedom of Information requests. There's little visibility as to when further disclosures, prompted by the ICO's caseworkers, are made by SLaM and the MPS. Soon after SLaM sent me an over-redacted 105-page report into incidents at the River House mental health secure unit, I received four Taser use forms from the Metropolitan Police Service. (Both complaints are ongoing as the SLaM report is clearly over-redacted and the MPS have not yet addressed the non-location of its incident management log.)
These new disclosures are directly related to the second section (paragraphs 15 to 23) of my Evidence to the Home Affairs Committee's inquiry into policing and mental health submitted last month and are relevant to this inquiry. I sent to the Home Affairs Committee a supplementary evidence about SLaM's disclosure of its 105-page report earlier this month, and copied below is a further supplementary evidence (also published on the Parliament's website as PMH0044) about the MPS eventual disclosure of the four Taser use forms:
[1] PMH0021 David Mery - written evidence (PDF): http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/home-affairs-committee/policing-and-mental-health/written/9174.pdf
[2]
MPS disclosure of the four Taser use forms: https://www.whatdotheyknow.com/request/river_house_2012_10_01_critical#incoming-530359
Direct links to the four forms: https://www.whatdotheyknow.com/request/193137/response/530359/attach/3/Redacted%20Taser%20Use%20MPS%2002.10.12%20287.12.doc.tif.pdf,
https://www.whatdotheyknow.com/request/193137/response/530359/attach/4/Redacted%20Taser%20Use%20MPS%2002.10.12%20291.12.doc.tif.pdf,
https://www.whatdotheyknow.com/request/193137/response/530359/attach/5/Redacted%20Taser%20Use%20MPS%2002.10.12%20292.12.doc.tif.pdf
and https://www.whatdotheyknow.com/request/193137/response/530359/attach/6/Redacted%20Taser%20Use%20MPS%2002.10.12%20294.12.doc.tif.pdf
[3] An independent investigation into the circumstances surrounding two separate but related incidents involving Norbury patients on Spring Ward on the night of 1st October 2012 (Final Report - Summary): https://www.whatdotheyknow.com/request/164330/response/496004/attach/3/RH%20Report%20Oct12%20unredacted.pdf
[4] An independent investigation into the circumstances surrounding two separate but related incidents involving Norbury patients on Spring Ward on the night of 1st October 2012 (Final Report): http://www.slam.nhs.uk/media/255726/slam_rh_incident_underlying_detail_redacted_140528.pdf
[5] Minutes of meeting of Lambeth's Health and Adult Services Scrutiny Sub-Committee (Item 5), 2012-10-23: http://moderngov.lambeth.gov.uk/mgAi.aspx?ID=20256
Last month I submitted some Evidence to the Home Affairs Committee's inquiry into policing and mental health. On 2014-05-28, the South London and Maudsley (SLaM) NHS Foundation Trust sent a further response in relation to my complaint to the Information Commissioner's Office and I consequently sent the supplementary evidence, copied below, to the Home Affairs Committee (also published on the Parliament's website as PMH0043):
As mentioned in paragraphs 17 of my evidence[1] I have an ongoing complaint with the Information Commissioner’s Office about the cover up of the South London and Maudsley (SLaM) NHS Foundation Trust concerning incidents at the River House mental secure unit. There has been some progress in this regard which should be of interest to the Home Affairs Committee.
As a response to this ongoing complaint, SLaM has now published a heavily redacted version of its full 105-page report (pdf) into these incidents. [In case this redacted report is updated or removed, a copy, as originally published, is available here (pdf).]
This report is distressing as it is still heavily redacted with snippets of great concern appearing without the original context. I have asked the Information Commissioner’s Office to check the redactions are valid as even without having access to the full document, many redactions are clearly excessive and not justified by the claimed exemptions (these exemptions can be read in SLaM's letter (pdf). [This letter is part of this Freedom of Information request.])
For instance, on p. 19 one interviewed staff is of the opinion that these incidents could have been avoided and that none of the 48 police officers that attended River House that night should have been deployed: ‘[…] it was possible to foresee what would happen, once a decision was taken to [redacted]. In the opinion of [redacted], the situation could have been pre-empted and the police should not have been called.’
However, only a few pages later on p. 23 there are both mentions of the seriousness of how the incident developed and the confusion between staff and the Trust about it: ‘Comment: several staff referred to incident 1 as a hostage situation, whereas according to the Trust Policy (Major Incident Protocol), it is defined as a riot.'
A clear example of the further poor attempt at a cover-up can be seen on p. 31. Most of the paragraphs describing the details of 'Incident 2' are redacted, however we already know from the 12-page summary report (link in footnote 11 in my evidence), and the repeated paragraph in the executive summary (p. 3), that 'In the second incident which occurred at approximately 0250, one patient challenged staff with regard to decisions which had been taken about the management of the four patients involved in the first incident. He accused them of discrimination, believing that there had been a racist motive and that staff had assisted the police to pursue this line of action. He threatened to kill staff and one of the white perpetrators, who he declared had been treated differently to the black perpetrators. This resulted in nursing staff losing control of the ward for a second time when they retreated to the nursing station.’ These allegations of discrimination must not be redacted.
Given that this report is from the largest mental health provider in the country, where two people from the UK’s African Caribbean communities have lost their lives while in the care of this provider at the hands of the Metropolitan Police services, it is particularly important that every member of the committee should be able to read a fully unredacted copy of this report. Considering the serious public safety implications, as well as public confidence concerns in policing and mental health, exemplified by such incidents, it would be helpful for this inquiry to get a full insight into both policing practice on the ground and patient experience at this mental health provider.
[1] PMH0021 David Mery - written evidence (PDF) [also on this blog at Evidence to the Home Affairs Committee's inquiry into policing and mental health]
The Home Affairs Committee, whose remit 'is to examine the expenditure, administration and policy of the Home Office and its associated public bodies' is running an inquiry into policing and mental health. The deadline for written evidence was a week ago and 34 submissions have been published online on the Parliament's website. The evidence I submitted (PMH0021) is also copied below:
A) Autistic behaviour considered suspicious and subsequent unlawful arrest
B) The River House incidents and its cover-up by the NHS and the MPS
C) The use of section 136 of the Mental Health Act 1983 in London
[1] CV: http://gizmonaut.net/cv/
[2] The detailed description of my arrest and subsequent fight to get off the National DNA Database and other police databases, and receive an apology is at http://gizmonaut.net/bits/suspect.html
[3] Police interview tape; Walworth Police Station; 2005-07-29 03:12:50-03:56:30
[4] Letter from Chief Superintendent Wayne Chance, Metropolitan Police Service Borough Commander for Southwark dated 2009-09-02: http://gizmonaut.net/blog/uk/2009/09/mps_apologises.html
[5] Asperger London Area Group (ALAG): http://alag.org.uk [Updated to new name and URL of ALAG]
[6] Autism: a guide for criminal justice professionals: http://www.autism.org.uk/working-with/criminal-justice/autism-a-guide-for-criminal-justice-professionals.aspx
[7] Sean Rigg inquest verdict: http://www.gardencourtchambers.co.uk/imageUpload/File/Inquisition-for-Mr-Rigg.pdf
[8] https://www.whatdotheyknow.com/request/river_house_2012_10_01_critical#incoming-505753
[9] NHS Trust attempted cover-up over massive police deployment to mental health ward: http://gizmonaut.net/blog/uk/2014/03/SLaM_attempted_cover-up_over_massive_police_deployment.html
[10] https://www.whatdotheyknow.com/request/river_house_2012_10_01_incident#incoming-465743
[11] An independent investigation into the circumstances surrounding two separate but related incidents involving Norbury patients on Spring Ward on the night of 1st October 2012: https://www.whatdotheyknow.com/request/164330/response/496004/attach/3/RH%20Report%20Oct12%20unredacted.pdf
[12] http://gizmonaut.net/foia/2014-03-20_Jenny-Jones-Armed_police_called_to_mental_health_wards_AC_Rowley_response.pdf
[13] https://www.whatdotheyknow.com/request/136039/response/329620/attach/2/FOI%20response%20DMery%20121108.pdf
[14] Minutes of the fifty ninth meeting of the board of directors of the South London and Maudsley NHS Foundation trust held on 30th october 2012: http://www.slam.nhs.uk/media/177219/novboard_12.pdf
[15] An independent investigation into the circumstances surrounding two separate but related incidents involving Norbury patients on Spring Ward on the night of 1st October 2012: https://www.whatdotheyknow.com/request/164330/response/496004/attach/3/RH%20Report%20Oct12%20unredacted.pdf
[16] Transcript of London Assembly’s Police and Crime Committee on 2013-11-21: https://www.london.gov.uk/moderngov/mgChooseMDocPack.aspx?ID=4993&SID=9700
[17] MPS press lines: https://www.whatdotheyknow.com/request/river_house_2012_10_01_critical#incoming-505753
[18] More on this confusion in Deployments of armed police officers at London’s mental health units: http://gizmonaut.net/blog/uk/2014/04/mps_at_mhus.html
[19] Police use of taser statistics, England and Wales, 2012 to 2013: https://www.gov.uk/government/publications/police-use-of-taser-statistics-england-and-wales-2012-to-2013/police-use-of-taser-statistics-england-and-wales-2012-to-2013
[20] https://www.whatdotheyknow.com/request/mha_section_136#incoming-368981
[21] https://www.whatdotheyknow.com/request/161877/response/396631/attach/3/43126%20FOI%20Final%20v2.xls.pdf
[22] https://www.whatdotheyknow.com/request/mha_section_136#incoming-390373
[23] https://www.whatdotheyknow.com/request/161877/response/405673/attach/4/43126%20FOI%20Final%20v3.xls
[24] The operation of Section 136 in London, An Action Plan to improve was published in March 2013 by the Mental Health Partnership Board for London. This document does not appear to have been made public; a copy was obtained from David Mellish, Chair of the Mental Health Partnership Board for London.
[25]
MPS: https://www.whatdotheyknow.com/request/joint_mental_health_protocols
MPS: https://www.whatdotheyknow.com/request/mha_section_136
MPS: https://www.whatdotheyknow.com/request/dps_in_custody_hac-policing-mh_following_s136
Barnet, Enfield and Haringey Mental Health NHS Trust: https://www.whatdotheyknow.com/request/mha_s136
Camden and Islington NHS Foundation Trust: https://www.whatdotheyknow.com/request/mha_s136_2
East London NHS Foundation Trust: https://www.whatdotheyknow.com/request/mha_s136_3
South London and Maudsley NHS Foundation Trust: https://www.whatdotheyknow.com/request/mha_s136_4
West London Mental Health NHS Trust: https://www.whatdotheyknow.com/request/mha_s136_5
South West London and St George’s Mental Health NHS Trust: https://www.whatdotheyknow.com/request/mha_s136_6
North East London NHS Foundation Trust: https://www.whatdotheyknow.com/request/mha_s136_7
Oxleas NHS Foundation Trust: https://www.whatdotheyknow.com/request/mha_s136_8
Central and North West London NHS Foundation Trust: https://www.whatdotheyknow.com/request/mha_s136_9
[26] Transcript of London Assembly’s Police and Crime Committee on 2013-11-21: https://www.london.gov.uk/moderngov/mgChooseMDocPack.aspx?ID=4993&SID=9700
Patients treated in mental health units are vulnerable individuals and deploying police officers to handle them is not the kind of care that patients and their families are expecting. It has on occasions resulted in deaths, often of young black men, such as that of Sean Rigg and Olaseni Lewis. So what is the Metropolitan Police Service's policy for such deployment of their officers?
In their press lines, dated 2014-01-28, the Metropolitan Police Service (MPS) describe their lack of policy about armed police deployments at mental health units:
Q2: Does the Met have a policy on the deployment of armed police to incidents that take place in mental health units?
= The MPS does not have a specific policy in relation to the deployment of firearms officers to mental health units.
Firearms officers are deployed to incidents where firearms or weapons are involved. Decisions to deploy firearms officers will include consideration around the type of premises and the persons concerned.
(Note that firearms officers include not only those in armed response vehicles but also Territorial Support Group (TSG) officers and the forty or so officers per borough trained in the use of Tasers.)
The investigation report into the incident at mental secure unit River House includes mentions of some patients 'making threats' but does not make any mention of either 'firearms' or 'weapons' having been in the possession of the patients. Forty-eight police officers were deployed, including armed response units, and four Tasers were drawn.
Commander Christine Jones, lead on mental health for both the Metropolitan Police Service and the Association of Chief Police Officers (ACPO), expressed a more cautious approach at London Assembly's Police and Crime Committee on 2013-11-21 (pdf) and insisted that all calls for MPS deployment to mental health settings will have to be approved by her team:
Christine Jones (Commander, Metropolitan Police Service): [...] There is also an appetite to take people down to Grays End to show them the Taser training so that we can have the critical third eye from the lens of the community around when it is used and why it is used.
Again, my sense is that on many occasions police have been in that place because there is nothing else and that is the issue we are working through now. Actually, if you need to restrain in a mental health environment, why would that fall to police? If you woke up in hospital after a triple heart bypass and became violent with staff, there is no question that the police would be called. Of course they would not. In a mental health environment, if the right commissioned services do not exist, there has been a reliance on police attending to support staff. I can absolutely understand that, but we need to move on from that and that is the work we are doing. [...]
Christine Jones (Commander, Metropolitan Police Service): [...] I do not think police should be going into mental health institutions to restrain and I have put a stop to it. What I have said is --
Jenny Jones (Deputy Chair): You have stopped the TSG being sent?
Christine Jones (Commander, Metropolitan Police Service): I have stopped police responding to mental health institutions for the purposes of restraint unless there are very, very good reasons why. Claire [Murdoch] and I are busy working through a protocol for London because there are certain areas of London that we get very few calls to and other areas of London that we get lots of calls to. For me, the only time that police should ever go into that health setting, frankly, because you are talking about somebody who is ill, is if there is real danger to life. That is a different issue.
Jenny Jones (Deputy Chair): It is bad for the police as well, of course.
Christine Jones (Commander, Metropolitan Police Service): Of course it is bad for the police, but imagine what it is like for the person. I cannot think of anything more terrifying. We have an escalation process in place at the moment for the Metropolitan Police Service which basically means that if a mental health institution calls on police, it goes into my mental health team to assess the circumstances before we respond. It is as simple as that. We have that level of commitment that we are all on call virtually 24 hours a day to make sure that if we have to respond we have the right people doing it and for the right reason.
Jenny Jones (Deputy Chair): Do you know if this has actually reduced the number of times the police are going to --
Christine Jones (Commander, Metropolitan Police Service): Hugely. Absolutely massively.
The press lines detail some new training for firearm officers and front line officers hopefully resulting in respectful encounters with vulnerable individuals and fewer uses of Tasers:
Q3. Do you recognise the concerns from campaigners about the use of armed police in mental health incidents?
= The MPS takes onboard concerns raised around the use of armed officers to mental health incidents and always places the safety of the public paramount.
Met firearms officers attend special training days where they work with mental health workers and patients to assist them in understanding and responding to people who suffer from mental health issues. We have introduced information sharing protocols to obtain fast time intelligence about any person who may be considered EMD (Emotionally or Mentally Distressed) or suffering behavioural disorders. Training around mental health issues is also included as part of officers on going training as well as forming part of the NPFTC (National Police Firearms Training Curriculum) instruction courses for firearms officers.
In September 2012, the Commissioner requested an independent commission to look at the MPS response to mental health. It was also asked to examine the interface between the MPS, mental health services and other partners.
Since the report by Lord Adebowale was published in May 2013, the MPS has fundamentally looked again at how we work as an organisation, and with partner agencies, to improve services, share information and better understand the needs of people with mental ill health with the aim of delivering a service that can be best adapted to fit individual needs.
The 28 Recommendations within the Independent Commission report on Mental Health and Policing (2013) are being progressed and embedded in the direction of travel for policing, both locally and nationally.
We continue to work locally across London and nationally with partners across the health spectrum and we have also contributed to the forthcoming Department of Health Crisis Care Concordat [(pdf)]. This is where a number of national organisations have committed to work together to support local systems to achieve systematic and continuous improvements for crisis care for people with Mental Health issues.
The MPS are also in the process of rolling out the Community Risk MARAC group (Multi Agency Risk Assessment Conference) and a pilot is currently underway in all NW London Boroughs. This is a local partnership forum, where high risk and developing cases can be discussed and problem solved.
The MPS are also in the process of training all front line officers in the Vulnerability Assessment Framework (VAF). The VAF is a simple investigative approach to assessing vulnerability, in all interactions the police have with the public.
The MPS is committed to delivering a quality of service and care for all those who come into contact with the MPS - especially those who are at their most vulnerable through mental ill health or crisis.
The training of front line officers should have been completed by now and other police staff will be trained by the end of the year:
Christine Jones (Commander, Metropolitan Police Service): Our training plan starts in January for all frontline officers and goes through to March [2014]. For the frontline uniformed response, so emergency response officers, all of those who work at borough level, they will receive vulnerability assessment training, as will our core staff. By the end of the year, every single member of the Metropolitan Police Service will have received that training, so that is how we will embed it at every stage. Regardless of what department you work in or at what point you engage with a member of the public, everybody was applied the same approach, so that is point number one. [...]
Absolutely, and that is the point, I do not think we have invested enough in teaching our officers to understand vulnerability. What we have said is, “You need to be trained in this, you need to be trained in this, you need to understand this risk assessment, you need to know ...” No, actually, our officers need to know this, that is the primary issue for us, we need to understand the legal framework in which we operate and then the issue is how we understand the vulnerabilities and diverse needs of our communities and that is my issue. I do not think we have trained our officers effectively in recognising vulnerability. We have done lots and lots around race, we have done lots and lots around professionalising investigation, but actually the human piece around this is how we deal with people on a daily basis, how we recognise their different needs by understanding where they may be vulnerable, and to be perfectly honest the feedback that we have had from the communities in London around satisfaction has regularly told us, “The officer failed to recognise my vulnerability”. We have the evidence there; we are now using it to fundamentally change that frontline training and, as I say, every single officer in London will have had that training by the end of next year and every single encounter we have with a member of the public they must apply that framework.
If you have an interest in policing and mental health it is well worth reading the transcript of this Police and Crime Committee session (pdf) in its entirety. One learns that some improvements have already been implemented. Last year I made a series of Freedom of Information requests to the MPS and London's NHS Trusts to get some data on the use of section 136 of the Mental Health Act and was frustrated by the police keeping their data in paper form at borough level:
Christine Jones (Commander, Metropolitan Police Service): I absolutely reflect that unhappiness. When you have disparate systems, disparate information technology (IT) and technology that does not talk to itself, you are immediately into a difficult arena. Until I took over the lead for mental health back in September last year, we had no way of knowing by pressing a button how many people across London we had encountered with vulnerability leading to mental health issues. We had no way of looking up how many Section 136 interventions we had or Section 135.
We changed that in January this year and in April that rolled out across the Metropolitan Police Service, so we now use the Merlin system to highlight vulnerable adults coming to notice.
[...] Good metrics now under Section 136. We have good metrics now.
Some changes have happened while others are going through the organisation. At the Police and Crime Committee, Commander Christine Jones said she 'took over the lead for mental health back in September last year', i.e., September 2012, a month at most before the deployment of 48 police officers at River House. Police involvement at this incident was covered up by the South London and Maudsley (SLaM) NHS Foundation Trust and the Metropolitan Police Service. I have two complaints currently with the Information Commissioner's Office, one for each of these organisations about how they are still attempting to avoid publication of information related to this incident. To reassure Londoners that policing of vulnerable individuals with mental health issues is improving, the Metropolitan Police Service will have to improve on their transparency as well as their performance.
Home Office statistics show that the use of Tasers keeps increasing, by 27% in 2013 compared to 2012. Police officers in England and Wales equipped with Tasers used them 10,380 times in 2013. More police officers are responsible for this increase. The article Tasers: the 'non-lethal' weapon reckoned to have caused more than 500 deaths, published in November 2013 on The Justice Gap, explains that, '[i]nitially only Authorised Firearm Officers (AFO) were equipped with Tasers, however 'Currently there are 14,700 officer trained to use Tasers [but the] number of AFOs is 6,979.' The Justice Gap has also published a video of a Taser refresher course with the London Metropolitan Police in 'Shocking Britain': the controversial roll-out of the Taser.
The timeline for rollout in the Metropolitan Police Service (MPS) is described in a letter to the London Assembly's Chair of the Police and Crime Committee:
The initial trial of Taser concluded on the 31st March 2004. In July 2007 the Home Secretary approved a year long trial of 10 forces to extend the use to "specially trained units" (STUs). The MPS was one of these forces. Its use was initially restricted to SCO20 (TSG) officers. In February 2012 Management Board supported the extension of Taser to other STUs including those on Boroughs.
In October 2012, when 48 police officers were deployed to River House, an NHS mental health unit (NHS Trust attempted cover-up over massive police deployment to mental health ward), this extension to borough officers hadn't been completed. And the police wanted Tasers to 'managed the situation' involving mental health patients. AC Mark Rowley wrote 'Armed response vehicles responded to this incident as they were the nearest available unit with a Taser capability. You will recall that at this time, only firearms officers and TSG were the only units equipped with Taser.' The MPS confirms that the roll-out of Tasers to trained Territorial Police officers has been completed:
All 32 London boroughs now have a group of officers on their borough who are trained in the use of Taser.
[...] Around forty officers from each borough have been trained in the use of Taser. The initial training is now complete. Taser trained officers are deployed in pairs in two cars on each borough, that's a maximum of 4 officers per 8 hour shift over a 24 hour period.
Even more officers may eventually get a Taser as '[i]n November 2011, Commissioner Hogan-Howe said that all officers should have easy availability of Taser.' (interview with LBC radio as reported in Governance of Taser and other less-lethal weaponry). And as a report published earlier this week by the Independent Police Complaint Commission shows, some of these officers make mistakes with terrible consequences such as firing a Taser on a 63-year old blind man with a white stick when looking for someone in his mid-twenties with a sword.
How Tasers are used is recorded:
| Level of use | Type of use | % uses in 2013 (*) | Definition |
| Highest use | Fired | 17% | The taser is fired with a live cartridge installed. When the trigger is pulled, the probes are fired towards the subject with the intention of completing an electrical circuit and delivering an incapacitating effect. |
| Angled Drive Stun | The officer fires the weapon with a live cartridge installed. One or both probes may attach to the subject The officer then holds the taser against the subject's body in a different area to the probe(s), in order to complete the electrical circuit and deliver an incapacitating effect. | ||
| Drive stun | 3% | The taser is held against the subject's body and the trigger is pulled with no probes being fired. Contact with the subject completes the electrical circuit which causes pain but does not deliver an incapacitating effect. | |
| Non-discharges | Red dot | 51% | The weapon is not fired. Instead, the taser is deliberately aimed and then partially activated so that a laser red dot is placed onto the subject. |
| Arcing | 1% | Sparking of the taser without aiming it or firing it. | |
| Aimed | 5% | Deliberate aiming of the taser at a targeted subject. | |
| Lowest use | Drawn | 22% | Drawing of taser in circumstances where any person could reasonably perceive the action to be a use of force. |
(*) Percentage for England and Wales that 'excludes Humberside and West Midlands who are unable to provide a full breakdown of taser use'. (Source)
Even though information about Taser use is held, it does not follow that police forces are forthcoming about how Tasers were used at specific incidents. In my Freedom of Information requests to the MPS about the River House incident, no such data was provided. This is subject to an internal review.
Two inter-related incidents involving service users happened on the night of 2012-10-01 at the River House (RH) mental secure unit, part of the Bethlem Royal Hospital run by the South London and Maudsley (SLaM) NHS Foundation Trust. Police were called for both incidents and SLaM has attempted to cover this up. A news story the next day did reveal that Territorial Support Group (TSG) officers were called, but not how many and whether any other specialist units had also been deployed. A few days later a whistle blower and two external third party individuals alerted the Care Quality Commission. When queried about these incidents, SLaM admitted that 'police had been called' without elaborating any further. Data obtained from a campaign of freedom of information (FoI) requests to SLaM, the Metropolitan Police Service (MPS), the Independent Police Complaint Commission (IPCC), the Care Quality Commission (CQC) and Monitor, and an ongoing complaint to the Information Commissioner's Office about the breaches of the Freedom of Information Act in SLaM's responses has revealed the extent of this cover up: 48 police officers were deployed including six officers from armed response units, two from dog units, 21 PC from the TSG and the entire Bromley Borough Night Response team. The TSG, armed and dog units officers are all trained to use Tasers. Further information shows that TSG officers entered the mental health ward and four drew their Tasers. They were called that night to manage a situation involving vulnerable individuals suffering from mental health issues.
SLaM commissioned an independent investigation report. Although dated 2013-05-10, it was eventually published on 2013-08-29 with a large amount of text redacted; simply deleted in non compliance with the Freedom of Information Act (pdf). The minutes of the board of directors announcing this report had been commissioned disappeared from SLaM's website before eventually being republished after contacting SLaM. The authors of the independent investigation report are not named and not known, SLaM wrote on one occasion that '[t]he investigation panel included a consultant lead investigator with a senior nursing background, a Consultant Forensic Psychiatrist and a Forensic Nurse Consultant [... and] that the authors of the investigation report are sufficiently qualified people who are able to conduct such an investigation and were appointed by the Trust Board.' (pdf) and on another that '[t]he investigation is being undertaken by a retired Director of Nursing, a forensic psychiatrist and a senior nurse with experience of security management.' (pdf)
This incident happened two years after Olaseni Lewis died after being restrained by up to 11 policemen at the Bethlem Royal Hospital and only two months to the day after the Sean Rigg inquest verdict, in which SLaM's failings were criticised to have 'more than minimally contributed to the Sean Rigg’s death'. SLaM stated on 2012-11-08 in its first response to my FoI requests that luckily this time 'there were no injuries to patients or staff in this incident'. It reiterated this position to its board of directors: 'there were no reports of any injuries to staff or patients.' However the investigation report states: 'One patient sustained injury to his hand during the second incident. No physical injuries were sustained by staff.' Another discrepancy: at a meeting of Lambeth's Health and Adult Services Scrutiny Sub-Committee, SLaM stated 'The police had been called for support but the incident had been managed well by staff at SLaM and the police did not get involved in the incident', however the investigation report, even though it does not go into details into police involvement, contradicts this statement: 'With the assistance of the Metropolitan Police and the first on-call CAG manager, three of the four patients were, after several hours, placed in supervised confinement (SC) on other wards.'
Following a complaint to the Information Commissioner's Office, on 2014-02-28, SLaM sent in another version of its report with some text previously redacted now included and what remains redacted shown as blacked out text (pdf). As of this writing this less redacted report has still not replaced the first version on SLaM's website.
The following details the shocking information that we have uncovered.
The incidents
From the investigation report:
This is the report of an Independent investigation commissioned by South London and Maudsley NHS Foundation Trust, following two separate but related patient incidents on the night of 1st October 2012, involving Norbury patients on Spring Ward.
[...] The first incident began at approximately 2200, when one patient, as part of his recurrent delusional state, accused the designated ward-based security nurse on the night shift of stealing designer wear and trainers which he believed his mother had brought to RH for him.
Attempts to deescalate this incident were unsuccessful. Although a decision was taken to offer the patient prn medication, a second patient destabilised the intervention and two other patients subsequently became involved. Staff considered the situation to be unsafe and retreated to the nursing station.
Assistance from the Metropolitan Police was first requested at 2244 and the first police officer from Bromley Police Station arrived promptly at 2247.
The police contend that on arrival they were unable to access key information about the patients involved in the first disturbance which frustrated their ability to risk assess the situation.
[...] With the assistance of the Metropolitan Police and the first on-call CAG manager, three of the four patients were, after several hours, placed in supervised confinement (SC) on other wards. The clinical environment was restored at approximately 0230.
In the second incident which occurred at approximately 0250, one patient challenged staff with regard to decisions which had been taken about the management of the four patients involved in the first incident. He accused them of discrimination, believing that there had been a racist motive and that staff had assisted the police to pursue this line of action. He threatened to kill staff and one of the white perpetrators, who he declared had been treated differently to the black perpetrators. This resulted in nursing staff losing control of the ward for a second time when they retreated to the nursing station.
This [second] incident also required intervention from on-call managers and the Metropolitan Police. The clinical environment was finally restored at 0500.
SLaM suggests only local police showed up
The day following the incident, the Bromley News Shopper ran a story, Bethlem Hospital secure unit incident attended by police and firefighters:
Officers from Bromley police and the territorial support group dealt with the situation and left the scene at around 2.50am.
And three fire engines were sent to the scene at about 12.30am after receiving reports of a fire alarm going off but there was no fire.
There were no arrests or reports of any injuries to staff or patients.
A whisteblower contacted the Care Quality Commission (CQC) by 2012-10-11 with concerns relating 'to safety of patients and staff and level of incidents.' The next day, the CQC MHA [Mental Health Act] Operations Manager wrote to the CQC Compliance Inspector:
[...] 2. Patients safety incident on Riverside Unit (involving -----)
This is a very serious matter, clearly the ward team lost control of the care of their patients and the situation may well have been much more serious than it has been. I noted the trust have provide a 'fact finding' report and commissioned an independent investigation.
3. Whistle blowing information received
This information appears authoritative and provides background information which would have [sic]
I felt the priorities are as follows:
a) Immediate. From the documentation sent through, unless there is other information I have not seen I am concerned that the provider does not appear to have demonstrated that they have taken robust action to make the ward environment safer in the light of the incident. This they could do quickly by, for example, increasing staff numbers, decreasing patient numbers, closing to new admissions for a temporary period. Further, issues of staff training, availability and skill mix all seems to be pertinent issues here. These are not ones that should need an independent clinical governance report to help them address. Should they not be able to identify and address issues immediately without recourse to an independent investigation then this further erodes confidence in their management capabilities. [...]
A 'third party individual' was concerned enough to get in touch with Care Quality Commission (CQC) on 2012-10-18. The CQC summarised the received email:
The concerns can be summarised as follows:
- Complainant wished to inform CQC of a violent incident that occurred on the SLAM secure forensic wards on Monday 1 October 2012 and request CQC investigate it
- Overall concerns raised for the safety of detained patients, in particular those from ethnic minorities - especially in light of the Sean Rigg Case in 2010.
- Overuse of restraint and medication
- Culture of intimidation
- Allegations that the trust was covering up details of the incident on 1 Oct, especially in relation to police involvement.
- Over representation of BME people being detained by the TrustThe complainant also made a request for information relating to the incident and its aftermath including:
• Information relating to the police becoming involved, numbers, equipment used, action taken by police against patients
• Numbers of patients involved
• Any injuries sustained by patients
• Details of any restraint or increase in medication of patient following incident
• Timing of incident/resolution
• Reasons for incident
Another concerned third-party individual wrote two letters on 2012-10-22. One addressed to the Care Quality Commission and another to alert the chair of Lambeth's Health and Adult Services Scrutiny Committee, copying the Lambeth Council Cabinet Member for Health and Wellbeing, the Chief Executive of the Care Quality Commission, a Special Correspondent at the BBC and the Director of Black Mental Health UK:
[...] This letter is to request that the CQC conduct an independent investigation into the matter and SLAM's treatment of its patients, particularly those from ethnic minority communities as a matter of urgency.
The recent high profile fatalities of black men in the care of SLAM make this latest incident of particular concern.
The Sean Rigg inquest verdict concluded that SLAM's negligence had more than minimally contributed to his death. Rigg died in 2008 and SLAM made public statements that improvements have been made in the treatment (particularly of black patients detained in their care).
However, in 2010, -------------- [the name of Olaseni Lewis is redacted in the copy of this letter disclosed by the CQC] died after he was restrained by 14 police officers for 45 minutes while on a secure ward run by SLAM.
After police release ---- [Lewis] and he was lying in a semi conscious state on the floor of a seclusion room, SLAM staff then injected him with antipsychotic medication. The inquest into the death of --------- [Seni Lewis] will being in March 2013 [this inquest has since been delayed].
I think it is important for the CQC to be aware of the recent history of this trust as it is in light of this that I am writing to you as the health regulator about the riot that occurred on wards run by SLAM on the evening of Monday 1 October 2012.
I have been made aware that the over use of force and high doses of antipsychotics and tranquillisers dominates the way patients are treated in secure wards run by this Trust.
The oppressive culture of this health provider may have been a factor behind the riot at the Bethlam [sic] which is run by SLAM on Monday 1 October.
This letter is also to request that you contact the chief executive of SLAM regarding the issues that have been raised in this letter and also for the CQC to conduct an independent investigation into this incident.
The particular concerns about the incident, which I would like the CQC to investigate include: establishing level of police involvement. It would be helpful to establish how many patients were restrained or subject to force by the police during this incident. I would also like the CQC to find out if Tasers, CS spray, Alsatian attack dogs, batons, hand cuffs or riot gear was used during this incident and also the levels and number of psychical injuries sustained by patients.
I look forward to hearing from you as to what action will be taken in response to this complaint; I would like to know how this information will be made available to the general public. [...]
The investigation report was not conducted by the CQC but commissioned by SLaM, and the CQC has no issue with the amount redacted in the heavily redacted version first published: 'The report published by the Trust is intended to demonstrate accountability for issues which arose at the Trust and to show how the Trust intends to prevent similar occurrences in the future. CQC does not consider that the addition of the redacted passages in the Report would further demonstrate accountability, and would instead be more likely to cause significant safety concerns for staff working in River House (and in fact officers from other agencies such as the Police, Ambulance Service and Fire Brigade).'
At the meeting of the Health and Adult Services Scrutiny Sub-Committee, on 2012-10-23, SLaM was asked about this incident, and its response carefully avoids any details even those already known such as the attendance of TSG officers and paints a rosy picture:
In response to queries from Members, representatives from SLaM made the following comments:
[...] A serious incident had occurred the previous week at the Bethlem involving two patients at SLaM taking other patients and staff hostage. The police had been called for support but the incident had been managed well by staff at SLaM and the police did not get involved in the incident. This demonstrated that improvements had already been made to the way in which the Police and SLaM were working together and the team which was called in to deal with such situations were adequately trained.
[...] As follow up actions he proposed that: [...]
· A note of the meeting be sent to Monitor
· That the principles of openness and transparency should be endorsed by health trusts. It is healthy for the health overview and scrutiny committee to be informed of instances such as occurred on 1 October 2012 and all should work towards a protocol on sharing information.
The board of directors of the South London and Maudsley NHS Foundation Trust was notified of the incidents at the 2012-11-27 board meeting:
Gus Heafield reported that there was an incident involving patients at River House at Bethlem Royal Hospital on the evening of 1st October 2012. Staff responded promptly and professionally and called the police who attended the scene with fire crews. The incident was contained within the unit and there were no reports of any injuries to staff or patients. An external investigation will be carried out and it was noted that the three members of the independent panel had been appointed and terms of reference for the review had been agreed. The review was due to be completed in January 2013. The Care Quality Commission had been notified of the incident and has been kept informed about the independent review.
Again, the investigation report as it was first published on 2013-05-10 did not mention the presence of Territorial Support Group (TSG) officers that were known to be on the scene from the earlier news story or any more details about the amount of police involvement:
This [first incident] necessitated intervention from the RH Rapid Response team, The Bethlem Royal Hospital (BRH) Emergency Team, various on-call managers from the Behavioural and Developmental Psychiatry (BDP) Clinical Academic Group (CAG), an On-Call Executive Director, the Metropolitan Police, the London Ambulance Service, and the presence of the London Fire Brigade.
Fifteen months later, we learn that 48 police officers were deployed including officers from armed and dog units
In responses to Freedom of Information requests, the Metropolitan Police Service (MPS) after describing that the 'disturbance at the River House facility, was treated as a critical incident by the MPS and accordingly involved many different police units' eventually gave an account on 2013-12-31, of the scale of its involvement:
The number of officers initially deployed were:
1 Inspector
1 Police Sergeant
10 Police Constables from the response team at Bromley.The Inspector declared the incident "otherwise so dangerous" and requested Commissioners Reserve.
As a result further officers were deployed which were:
2 Inspectors
3 Sergeants
21 Police Constables from the Territorial Support Group. (TSG)
6 Police Officers in two vehicles from the Armed Response Unit (ARV) - These were stood down upon the arrival of the TSG
2 Police Officers from the Dog Unit (with two dogs) - These were stood down upon the arrival of the TSG
1 Detective Sergeant,
1 Detective Constable from Bromley
In the version of the investigation report SLaM published on 2014-02-28, SLaM unredacted the following:
This necessitated intervention from [...] three divisions of the Metropolitan Police
[...] In the course of approximately three and a half hours, somewhere in the region of forty police officers were on-site, ______________________________________________ the Territorial Support Group (TSS) [sic] – Commissioner’s reserve, three police dog units and Trojan (specially trained armed officers).
[...] The Lock Down policy stipulates that for a major incident the Bronze, Silver and Gold command structure should be established.
As SLaM didn't follow proper procedures for redacting text, we also found out that SLaM attempted to cover up that the entire Bromley Borough police night response team was deployed to River House and that it failed to put in place a proper command structure:
In the course of approximately three and a half hours, somewhere in the region of forty police officers were on-site, comprising the entire Bromley Borough Night Response team, the Territorial Support Group (TSS) [sic] – Commissioner’s reserve, three police dog units and Trojan (specially trained armed officers).
[...] The Lock Down policy stipulates that for a major incident the Bronze, Silver and Gold command structure should be established.
The police adopted this modus operandus, but despite the fact that several managers became involved throughout the night, four of whom came on-site at various times, there is no evidence that the Bronze, Silver or Gold command roles were assigned to Trust staff to work with the police accordingly.
Armed police officers, dog units and riot police officers have no place on a mental health ward. Having a situation deteriorates to the point that SLaM and the MPS decided it needed such a high police response brings serious concerns as to the safety of the vulnerable service users being treated.
Many questions remain unanswered
We know that the Metropolitan Police Service classified these incidents as critical and that they established a Bronze, Silver and Gold command structure. However we do not (yet) know from which units officers forming this command structure came from, and we do not know if any weapon, whether guns, Tasers, batons or CS sprays were drawn and / or used, or whether any dog was released. London Assembly member Baroness Jenny Jones has written to Sir Bernard Hogan Howe, Metropolitan Police Service Commissioner, Sarah Green, ICC Deputy Chair and Norman Lamb, Minister of State for Care Support to raise her concerns and ask for this information.
The only records the police have so far managed to find or 'locate' are exempted from disclosure. It is also likely they are reading the request too literally as they claim not to have any 'final report' for the incident but it is most likely they would have a report of some sort or similar document for a critical incident involving so many officers from several units and a command structure:
To assess who or may have relevant information for this request at least 12 (Twelve) separate CAD messages, the MPS electronic message system, were created and run for the incident mentioned. [Source]
Despite our searches there is no information held in regards to the final report [completed for the incident]. [Source]
The records held include ten CAD reports [Computer-Aided Dispatch] and one CRIMINT report [Criminal Intelligence database]. The CADs relate to the 999 call and subsequent dispatch of officers, the CRIMINT is an intelligence report.
I have been informed that on Incident Management Log was created however despite searches on borough and with the senior investigating officer I have not been able to locate this document.
Furthermore one document refers to a meeting in which this matter was to be discussed, again no further information could be found in respect of this meeting which may or may not have occurred. [Source]
The IPCC does not have any information at all about these incidents:
I am writing to advise you that, following a search of our paper and electronic records, I have established that the information you requested is not held by the IPCC. This is because the IPCC was not involved in this incident.
Section 3 of the investigation report is a list of recommendations, some requiring immediate action and the latest one due by March 2014. Apart from the vague description of some immediate actions taken to make the ward safer listed in an email dated 2012-10-15 between the CQC and SLaM (names are redacted), we do not know whether any of the recommended actions have been implemented; we also do not know whether any restraint were used on patients and the effect this situation had on both patients and staff:
- the patient's [sic] involved in the incident were placed under enhanced levels of care: -- [redacted] transferred to ------- Clinic, -- transferred to HMP -------, -- transferred to HMP -------, -- transferred to ------- ward and -- remains on ------- Ward.
- making the immediate environment safe
- undertaking repair where necessary
- security systems were checked
- the perimeter fence was examined (no breaches had occurred and the fence was undamaged)
- all patients on the ward were subject to updated mental state examinations and risks were reviewed
- debriefing sessions were held with the staff who were also reassured that an independent investigation would be undertaken
Some of the findings of the investigation report show a continuing need to improves safety: '[t]he lack of awareness of the risks outlined above and the ease with which these were quickly identified by the Independent team, suggests a less than optimal grip on environmental security in which safe clinical practice takes place' and '[s]ystems and safety culture are the root cause of the majority of incidents and no less so in relation to what took place on the night in question.'
Between 2012-01-01 and 2012-10-19, 196 violent incidents at River House were reported to the National Patient Safety Agency. Of these 101 were within the Bromley Local Authority and 95 in Lambeth.
| Category | Number |
| Assault by a patient | 77 |
| Challenging Behaviour | 50 |
| Aggression | 42 |
| Inappropriate Behaviour | 18 |
| Harassment by a patient | 4 |
| Sexual Assault by a patient | 2 |
| Sexual Assault by a staff member | 1 |
| Assault by a staff member | 1 |
| Assault by other (e.g. a visitor) | 1 |
| Total | 196 |
It is not known whether the police was called to any of the other violent incidents reported. As safety of patients and staff is paramount, SLaM must become more transparent into the way it operates.
Update 2014-03-21
The day following publication of this article, SLaM has accepted that its use of Freedom of Information exemptions was unwarranted:
As you know, the Trust has previously withheld some aspects of the Report from disclosure by applying the exemptions in sections 38 (health and safety) and 40 (personal data) of the Freedom of Information Act (2000).
Following your complaint, the Information Commissioner’s Office has undertaken an independent assessment. The Trust has now resolved to withdraw its use of the exemptions in sections 38 and 40 of the Freedom of Information Act (2000) to the Report and to disclose it in an un-redacted form.
The version of the investigation report just sent in with the blacked out text now visible is available here (pdf). To identify more readily the new information, I had recreated the document highlighting the differences but had not released it until now in case the Information Commissioner's Office (ICO) ruled some exemptions were justified; you can check it here (pdf).
There remains one unaddressed issue in my complaint to the ICO, the investigation report mentions, on page 10, 'section 17 of this Independent report' however there are only three sections in the published report. Also mentioned, on page 2, is that the 'report refers to ten patients, whom for the purposes of confidentiality have been anonymised (referred to as patients A to J)', however only patients A to B are referred to. These are either typos or there are further missing sections.
Update 2014-03-24
London Assembly member Baroness Jenny Jones has kindly shared the letter (pdf) she has received last week from Assistant Commissioner Mark Rowley. It clarifies that only TSG officers, armed with Tasers, entered the mental health ward (25 TSG officers had been deployed at River House) and that out of those that entered the ward, four drew their Tasers:
[...] The Commissioner’s reserve of TSG [Territorial Support Group] was deployed to resolve this incident and when they arrived they effectively took over from the ARV's [Armed Response Vehicle units]. I would stress that they [sic] ARV's never left the rendezvous point. As you may be aware the Commissioners reserve operate as a single unit of 1 Inspector, 3 Sergeants and 21 PCs. This of course would contribute to the seemingly large number of officers on scene at the incident. However, only officers from the TSG entered the ward and although 4 officers had their Taser drawn, through effective use verbal commands they safely resolved the situation without any further use of force. I can also confirm that the Dog support units did not deploy on to the ward.
[...] I am sorry that you have heard that this incident has damaged the confidence of black Londoners in relation to policing and mental health. This scale of incident is quite rare, in fact the MPS has reduced the number of calls that it attends at health based places of safety by 70%, but I remain concerned that police officers are being asked to carry out restraint in mental health facilities. To try to resolve this, protocols between health service managers and police Duty Officers are currently being developed. [...] Unfortunately there is no current time frame for this work to be completed.
This does not state whether TSG officers did restrain any patient that night, and if so how many (the investigation report describes that police assisted in placing three patients in supervised confinement). Also AC Mark Rowley figure of 70% reduction of police calls is meaningless as no period is given, nor a basis or a target for this reduction (and the definition of 'health based places of safety' is open to interpretation).
Update 2014-05-02
SLaM has published the list of actions it has taken as a response to the recommendations of section 3 of the investigation report in this pdf.
References
Relevant Freedom of Information (FoI) requests and other sources (note that the date for FoI requests is the date when the request was sent):
First published on 2014-03-20; last updated on 2014-05-05 (added mention of SLaM unredacting the blacked out text in the investigation report, the letter of AC Mark Rowley to Jenny Jones, the publication of the response to the recommendations and minor other corrections).
Keith Vaz recently asked ' what DNA databases are currently held by the Government; what the function is of each; how many people are included on each; where each database is held; for how long each database has been open; and where each such database will be held after the Government's reforms of national policing are complete. James Brokenshire, Minister for Crime and Security at the Home Office, provided the following holding answer:
The Government currently holds five databases containing electronic DNA profile information. Details below reflect the position as it stood on 30 September 2013.
The national DNA database (NDNAD) holds DNA profiles taken from individuals and crime scenes. It is used for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution; in the interests of national security; for the purposes of a terrorist investigation; and for purposes related to the identification of a deceased person or of the person to whom material relates. It was set up in April 1995 and currently holds 6,074,866 DNA profiles.
The missing persons DNA database holds DNA profiles obtained from the belongings of people who have gone missing, or from their close relatives (who will have similar DNA), as well as profiles taken from the bodies of unidentified people. It matches missing people (sometimes via their relatives) to unidentified bodies, and can also eliminate a missing person if an unidentified body is found matching their description. It was set up in April 2010 and currently holds 895 DNA profiles.
The vulnerable persons DNA database holds DNA profiles of people who are at risk of harm (for instance due to child sexual exploitation or honour-based violence) and who have asked for their profile to be added. If the person subsequently goes missing, their profile can be checked against the main NDNAD to see if they match to any material such as blood or an unidentified body found at a crime scene, helping the police to investigate their disappearance. It was set up in March 2011 and currently holds 1,967 DNA profiles.
The police elimination database holds DNA profiles for police officers and staff. These profiles are used for elimination purposes in criminal casework. It was set up in August 2000 and currently holds 127,100 profiles.
These four databases are run by the Home Office, having been transferred from the National Policing Improvement Agency (NPIA) on its closure.
The counter-terrorism (CT) DNA database holds profiles retained specifically for the purposes of national security. It was established in July 2006 and is managed and maintained by the Metropolitan Police Service (MPS) on behalf of UK CT policing. Due to the sensitive nature of the CT DNA database it is not possible to confirm the number of profiles held.
A sixth DNA database in England
As mentioned in the earlier post 1,136,000 DNA profiles and 6,341,000 samples gone, but stealth DNA database of everyone being planned, GeneWatch UK reported on 'the Government [plan] to build a DNA database of the whole population of England in the NHS by stealth [and to make this] information available to commercial companies and [...] also accessible to the police, social workers, security services and Government.'
NHS England has already notified GP practices, according to Pulse, that they had eight weeks to inform their patients that confidential data from their medical records will be shared with private companies: 'The letter said: Upon receipt of this letter, you will have approximately eight weeks to make your patients aware before the Health and Social Care Information Centre (HSCIC) will begin extracting data via the GP Extraction Service (GPES) for those patients who have not objected.’
To object, you must opt-out. MedConfidential has published information about how to opt-out, including a template letter to send to your GP.
Trenton Oldfield undertook a peaceful direct-action protest at the 2012 Oxford and Cambridge Boat Race. He disrupted the boat race for about 20 minutes by swimming in front of the boats. The aim of his protest was 'to focus attention on the long-standing and entirely unjust inequalities in British society that are being severely exacerbated by government cuts and reductions in civil liberties.'
He was arrested, tried, convicted, sentenced to a six-month jail term and served two months in HMP Wormwood Scrubs. Australian-born, he has spent the last twelve years in the UK, is married to a British citizen and has a few weeks old daughter. The Home Office did not find the punishment of the criminal justice system was enough and in a vindictive move has refused his spousal visa so he is at risk of being expelled back to Australia. His wife, Deepa, explained: 'A few weeks ago we learned that Trenton's visa application (submitted 1 year ago) has been declined on grounds that he is "a threat to national security", "undesirable" and "not conducive to public good". We have submitted an appeal and are awaiting a tribunal date, which should take place within 2 months time. [...] Everything is now at stake for us - our work, our livelihood, our family and life in London.' They are currently waiting for the outcome of this appeal.
Ways you can support Trenton Oldfield and his family include signing a petition to the Home Office to request that the Home Office reconsiders its 'Refusal Notice', contacting your MP and purchasing his prison diary.
A public nuisance
After his swim, Trenton Oldfield was arrested and initially charged with a section 5 (disorderly behaviour likely to cause harassment, alarm or distress) public order offence. Following political pressure, this charge was changed. Conservative MP Michael Ellis asked the Metropolitan Police commissioner in a Home Affairs Committee:
Q52 Michael Ellis: Commissioner, on the Olympic security arrangements, are you particularly concerned after the University Boat Race incident? The fact of the matter is that one idiot seemed to be able to cause significant disruption, and I think one of the captains of the teams pointed out that they had worked for nine months towards a goal that was spoiled by one individual in an act of self-aggrandisement. [...] I particularly also want to ask you about the penalties available, because I notice from media coverage that the individual who disrupted the boat race appears to have been charged with a section 5 offence under the Public Order Act 1986, which is one of the most minor offences in the book, carries no custodial penalty option at all and usually only results in a small fine. Do we need to look at available offences?
Bernard Hogan-Howe: I do know that the CPS are reviewing whether a more serious charge is possible, given the circumstances. So I think they have one charge and they are reviewing whether another one could be more appropriate. That is not straightforward.
The charge was then changed to that of 'Causing a Public Nuisance'. (After considering offences available under the Terrorism Act, I was eventually arrested, though not charged, also, for a public nuisance offence.) The Crown Prosecution Service specifies in its sentencing manual that the Common Law offence of Public Nuisance has for 'Statutory Limitations & Maximum Penalty: Life imprisonment or a fine or both'.
The Law Commission consulted in 2010 on a 'Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency'. Its recommended option was 'Option 3: enact a statute abolishing the common law offences of public nuisance and outraging public decency and creating statutory offences in their place, with an intention or recklessness standard.' The consultation document gives some examples of public nuisance, the views of one of the key critics of this offence and how this offence was classified:
Examples of public nuisance are:
(1) obstructing the highway;
(2) blasting and quarrying near built-up areas;
(3) allowing land to be used as a dump, creating a dangerous or noxious environment;
(4) noisy parties and “raves”;
(5) bomb hoaxes and false calls to the emergency services;
(6) hanging from motorways and bridges, for example in political demonstrations;
(7) keeping pumas in a domestic garden;
(8) gang activity involving drug dealing in an urban area.
[...]
The offence has been extensively criticised in an article by J R Spencer [Public Nuisance – a critical examination (1989)]. His first argument is that the offence is so wide and the definition is so fluid that it lacks the certainty required of a criminal offence. His second argument is that almost all examples of public nuisance are now covered by specialised statutory offences. He concludes that the offence should be abolished, either without replacement or in favour of a narrower offence of doing anything which creates a major hazard to the physical safety or health of the public.
[...]
Today public nuisance may still conveniently be divided into two categories, though the classification is different from the historical one given above. The first is “environmental” nuisance, such as harmful substances and smells and obstructing the highway. The second is “behavioural” nuisance, covering offensive behaviour in public. This class is narrowed but not abolished by Rimmington: the test is that the offending behaviour affects several people at once and is not a mere series of acts that annoy individuals. There is some overlap between the two categories: for example drug dealing and the holding of noisy parties in public both affect the amenities of an area and are offensive in themselves.
Brenna Bhandar, Lecturer in Law at Queen Mary, University of London, explains in details the 'interesting history' of the crime of public nuisance in The Criminalisation of Political Dissent: Huckstering the Law. Here's her view of the ruling in Trenton Oldfield's case within this context:
[...] Let’s take the crime of public nuisance as an example. It has its origins in a private law action for interference with one’s property, and then drifts into the public sphere as a means of criminalising improper conduct (along with interference with private property). This is not only a matter of Justice Molyneux having misconstrued who constitutes the “public” in considering who suffered the harm in this case. Nor is it solely about a judge upholding the interests of the elite who were engaged in a sporting event, over the rights of Trenton Oldfield to express political dissent of myriad forms of inequality and injustice. The crime of public nuisance has its origins, and remains in essence, a law concerned with protecting private property and notions of propriety. For this reason and others, the crime of public nuisance should be abolished.
[...] Nearly if not all of the type of public nuisance offences that the law was historically intended to apply to have now been covered by statute. The profligate doctrine of health and safety breeds new rules and regulations daily it seems; and criminal law offences have become increasingly codified. What is left, after all of this content has been emptied out is a dangerously elastic form of criminal offence that can literally be applied to any sort of conduct. And with this, we arrive at Oldfield’s sentencing hearing.
A peaceful direct action to expose some of the policies of this government, led to charges being changed from a public order offence to 'a dangerously elastic form of criminal offence that can literally be applied to any sort of conduct', a jail term and now threats of deportation. Such vindictiveness by the Home Office has succeeded in rallying even those most angered by Oldfield's direct action, such as rower Tobias Garnett, to support him:
[...] Despite my disagreement with Oldfield, the Home Office's decision this week to reject his application for a spousal visa leaves me in an uneasy position: thinking his actions were indefensible, and yet now wanting to defend him.
[...] I know what each of the participants of that race committed to when they stepped into those boats, and I share in their anger at Oldfield. But these things are more important than a race. People with whom we disagree are the best test of the fairness of our legal system. When asked to comment on the matter, a Home Office spokesman said, "those who come to the UK must abide by our laws". They ought to be protected by them too.
The petition calling on the Home Secretary to immediately withdraw her threat to deport Trenton Oldfield is still open.
Parliamentary Under-Secretary of State for the Home Office Lord Taylor of Holbeach has eventually made an order – The Protection of Freedoms Act 2012 (Commencement No. 7) Order 2013 – to commence the provisions in the Protection of Freedoms Act 2012 which relate to the destruction, retention and use of material including fingerprints, DNA samples and DNA profiles. These provisions will be commenced on 2013-10-31. A few provisions relating to the destruction of copies of fingerprints which will commence only on 2014-01-31.
One section which is not commenced by this order is section 22 about the 'Guidance on making national security determinations'.
Lord Taylor of Holbeach also made the order Protection of Freedoms Act 2012 (Destruction, Retention and Use of Biometric Data) (Transitional, Transitory and Saving Provisions) Order 2013 that deals with the destruction, retention and use of biometric data retained before the moment the DNA provisions of the Protections of Freedom Act are effectively commenced.
In the Anti-social Behaviour, Crime and Policing bill committee, Damien Green, pointed out that 'In preparation for the implementation of the Protection of Freedoms Act, 7.7 million samples taken to produce DNA profiles have now been destroyed.' Here is the updated table, first published in the post 1,136,000 DNA profiles and 6,341,000 samples gone, but stealth DNA database of everyone being planned:
| 2012-03-04 | 2012-03-19 | 2013-05-20 | 2013-07-16 | |
| DNA profile deletions | 504,000 | 504,000 | 1,136,000 | |
| DNA sample destructions | 439,000 | 453,000 | 6,341,000 | 7.7 million |
| Source: Anti-social Behaviour, Crime and Policing Bill committee 203-07-16, Ministerial statement 2013-05-20, Parliamentary written answer 2013-03-21, Ministerial statement 2013-03-04 | ||||
Analysis of biological samples to become costly for the defence
In the committee, Damien Green, explained that Clause 10 of the Anti-social Behaviour, Crime and Policing bill will amend the Protection of Freedoms Act to ensure biological samples that becomes relevant to disputed issues in court proceedings have not been destroyed by the time those proceedings take place:
[The Protection of Freedom Act] requires biological samples of all types to be destroyed, including blood, semen, urine, saliva, hair and skin swabs. That affects not only samples used for adding profiles to the DNA database, but those used for purposes such as testing for drug and alcohol use, violent and sexual contact between suspects and victims, and exposure to chemicals such as those associated with explosives, firearms or drug production.
Note that access to the analysis of these biological samples may become costly to the defence. 'Most material held by the prosecution was previously provided free to the defence during disclosure of evidence' writes Owen Bowcott in the Guardian, but due to changes in charging practices following the dissolution of the state-backed Forensic Science Services (FSS) last year, 'several forensic science companies have recently changed billing practices, demanding up to £800 a day, for example, from experts hired by the defence'. (See also The [Justice] Gap for an analysis of these rising costs by Peter Glenser). This is put succinctly by commenter mschin1: 'You mean that I could be forced to pay for information about my own DNA to prove my innocence? You really couldn't make this up.'
Draft guidance on early deletion of DNA and fingerprint records
The Home Office has issued a consultation on its draft Guidance on early deletion of DNA and fingerprint records set to replace the Exceptional Case Procedure. Deadline for the consultation is 2013-07-29. The guidance will come into effect in October.
First published on 2013-07-22; last updated on 2013-07-23 to add a link to the consultation.
Cory Doctorow mentioned my arrest in one of his recent Guardian column on Prism and in some corrections in a Boing Boing post. Cory concludes:
You should care about privacy because if the data says you've done something wrong, then the person reading the data will interpret everything else you do through that light. [...] Once a computer ascribes suspiciousness to someone, everything else in that person's life becomes sinister and inexplicable.
This is why I fought so hard to expunge my records and help fight for other innocents as well.
Quebecois journalist Stéphane Vaillancourt expanded on this theme in Attention! Vos gadgets vous épient sans cesse published on Canoë:
Étiqueté «terroriste potentiel»
Une fois les informations recueillies, il ne reste plus qu'à les jumeler aux données publiques (caméras dans les transports ou lieux publics) et surveiller les comportements jugés suspects, comme l'a appris à ses dépens David Mery, en 2005, alors que la police de Londres était sur les dents, peu de temps après un attentat dans le métro. Le problème, c'est qu'une fois une personne étiquetée « terroriste potentiel », on interprète tout geste, tout acte comme étant suspect. Une fois la personne arrêtée, même si une erreur est admise par la suite, son nom demeure dans les registres pendant un bon bout de temps (9 à 10 ans, dans ce cas-ci), l'empêchant de voyager ou, simplement, de vivre une vie normale.
Si vous n'avez rien à cacher...
Le fameux prétexte voulant que « si vous ne faites rien de mal, vous n'avez alors rien à cacher » est plutôt douteux, à la lumière de l'histoire de David Mery (et probablement de plusieurs autres).
Que dire alors, si l'on suit cette logique, de ceux qui décident de ne pas avoir de compte Facebook? Ceux qui ne publient jamais de photo d'eux ou ne font jamais de «check-in» sur les réseaux sociaux? Est-ce que désirer conserver un peu de vie privée serait devenu un comportement suspect?
Stéphane's last question about whether to strive to retain some privacy is now considered suspicious behaviour has been answered positively in at least two occasions by the German police and the French Home Affair minister as I explained a few years ago in The mobile phone as self-inflicted surveillance – If you don't have one, what have you got to hide?.
Bootnote 1 The travel restrictions mentioned by both Cory and Stéphane are limited to the USA. See Innocent in the UK, unwelcomed in the USA for more details.
Bootnote 2 Two other, even more illogical, labels that have been used as captions in TV interviews: 'Former suspect', 'Mistaken suspect'.
A total of 6,969,396 subject profiles were held on the National DNA Database (NDNAD) at 31 March 2012 according to the NDNAD Annual Report 2011-2012. Allowing for duplication, the number of individuals whose DNA profile were held on the database is estimated at 5,950,612. This includes 1,253,289 innocent individuals ('without a current recorded conviction whose profiles had been added to the National DNA Database by English and Welsh police forces'). This also includes children; new research by the Howard League for Penal Reform has found that officers in England and Wales took swabs from 53,973 boys and girls aged 17 or under just during 2011.
The table below lists how many DNA subject profiles were loaded per year and how many individuals succeeded in getting their DNA profiles deleted following the 'Exceptional Case Procedure' over the past ten years. It clearly shows how easy it is for the police to grow the NDNAD, but how hard it has been for anyone to get off it.
| 2002-2003 | 2003-2004 | 2004-2005 | 2005-2006 | 2006-2007 | 2007-2008 | 2008-2009 | 2009-2010 | 2010-2011 | 2011-2012 | |
| DNA profiles of individuals added | 488,519 | 475,297 | 521,118 | 715,145 | 722,475 | 591,029 | 580,803 | 540,313 | 474,193 | 398,845 |
| DNA profiles deleted (Exceptional Case Procedure) | 256 | 45 | 53 | 165 | 115 | 162 | 283 | 414 | 503 | 390 |
| Source: National DNA Database annual report 2011 to 2012, National DNA Database biennial report 2009-2011, National DNA Database annual report 2007-09, Parliamentary written answer 2007-05-10 | ||||||||||
The DNA and fingerprint provisions of the Protection of Freedoms Act 2012 are scheduled to commence in October. Before then, DNA profiles of the innocent must be deleted, and most DNA samples destroyed. The profile deletion process is managed by the custodian of the NDNAD, which has been the Home Office since the closure of the National Police Improvement Agency. The physical destruction of the samples is handled by the forensic service provider that did the sequencing. This work was initially slow (see table below), but '[t]here has been significant progress' explained Lord Taylor of Holbeach in the House of Lords:
To date, 1,136,000 DNA profiles belonging to innocent individuals have been deleted from the National DNA Database. Some 6,341,000 DNA samples containing sensitive biological material that are no longer needed as a DNA profile has been obtained have been destroyed.
DNA sample destruction is due to be completed by the end of this month, and DNA profile and fingerprint deletion by the end of September. By the time the Act commences in October, only those convicted of a criminal offence will have their DNA and fingerprints retained indefinitely.
This must be a moment of great relief to all those innocent individuals whose DNA profiles the police were desperately retaining. However, as there was no requirement for a notification mechanism, it is likely no one concerned has been informed. If you have been arrested, your DNA taken and believe your DNA profile should have been deleted, one way to find out is to use the Data Protection Act and send a subject access request to the police force that arrested you (for help, see my short guide: How to obtain personal information which is held by an organisation?)
| 2012-03-04 | 2012-03-19 | 2013-05-20 | |
| DNA profile deletions | 504,000 | 504,000 | 1,136,000 |
| DNA sample destructions | 439,000 | 453,000 | 6,341,000 |
| Source: Ministerial statement 2013-05-20, Parliamentary written answer 2013-03-21, Ministerial statement 2013-03-04 | |||
Here are some of the provisions describing what must happen before the coming into force of any provision of Part 1, Chapter 1 of the Protection of Freedoms Act 2012:
14. (4) A DNA sample to which this section applies must be destroyed—
(a) as soon as a DNA profile has been derived from the sample, or
(b) if sooner, before the end of the period of 6 months beginning with the date on which the sample was taken.
25. (2) The Secretary of State must, in particular, provide for the destruction or retention of PACE material taken, or (in the case of a DNA profile) derived from a sample taken, before the commencement day in connection with the investigation of an offence.
25. (3) Such provision must, in particular, ensure—
(a) in the case of material taken or derived 3 years or more before the commencement day from a person who— (i) was arrested for, or charged with, the offence, and (ii) has not been convicted of the offence, the destruction of the material on the coming into force of the order if the offence was a qualifying offence,
(b) in the case of material taken or derived less than 3 years before the commencement day from a person who— (i) was arrested for, or charged with, the offence, and (ii) has not been convicted of the offence, the destruction of the material within the period of 3 years beginning with the day on which the material was taken or derived if the offence was a qualifying offence, and
(c) in the case of material taken or derived before the commencement day from a person who— (i) was arrested for, or charged with, the offence, and (ii) has not been convicted of the offence, the destruction of the material on the coming into force of the order if the offence was an offence other than a qualifying offence.
For a recap of the provision of the Protection of Freedoms Act, see the post Innocents to become less suspect written when the bill was debated, or check out the act.
Stealth DNA database of everyone
In contrast to the positive development of destroying all DNA samples and the DNA profiles of the innocent held on the NDNAD, a new report (pdf) by GeneWatch UK exposes the Government's plan to build a whole population DNA database by stealth:
In April 2013, the Caldicott Committee, including Government Chief Scientist Sir Mark Walport, proposed new rules for data-sharing which would allow the Government to build a DNA database of the whole population of England in the NHS by stealth.
The plan is to make NHS medical records and people's genetic information available to commercial companies and to use public-private partnerships to build a system where all private information about every citizen is also accessible to the police, social workers, security services and Government.
In announcing the report, GeneWatch UK director, Dr Helen Wallace said:
Total government surveillance of every citizen and the end of privacy between doctors and their patients are inevitable if a DNA database is built within the NHS. Every adult and their children will be tracked using their DNA, and private healthcare records from the NHS will be sold around the globe. Genes are poor predictors of most diseases in most people and personalised risk assessments will lead to the marketing of fear and medicalisation of vast swathes of the English population. The costs of unnecessary follow-up of misleading risk predictions could bankrupt the NHS and harm the health of vulnerable people.
For more information on the new data sharing powers, check out the presentations from the launch conference of medConfidential. Phil Booth's slides include diagrams that are extremely useful when trying to make sense of the new NHS structure and understand the workings of the General Practice Extraction Service (GPES) system used to share data from your GP. The GeneWatch report includes on pp. 33-34 two diagrams from a presentation by Tim Hubbard, Wellcome Trust Sanger Centre that shows the flow of the genomic information. The individual genome sequence is about 3 GB, this will be compared to a reference genome sequence, and the difference –a variant file of about 10 MB– stored in the electronic health record, and from there in the cloud.
Last October, I was interviewed about my unlawful arrest by Patrick Hafner, a journalist at Austrian Broadcasting Corporation ORF, who visited London to shoot a TV documentary about monitoring, both in terms of CCTV surveillance and online data gathering, for the programme 'Welt Journal' (World Report).
The international version of the program, called Naked Citizen has just been published on YouTube:
The Restart Project is a London-based social enterprise and charity aiming at changing our relationship with information technologies by empowering people to repair and reuse their electronic devices. It was started nine months ago by Janet Gunter and Ugo Vallauri.
The Restart Project’s vision is one based on collaboration and creativity – combining online knowledge sharing and cooperation with tangible activities in real life. One of the main such activity have been ‘Restart Parties’, community repair events, where all kinds of electronics are taken apart and repaired by owners together with volunteer repairers (Restarters). The aim is to promote increased lifespan, share repair skills and promote sustainable and informed consumption of information technologies.
To find out when and where the next Restart Party will happen, check out the events page.
Becoming a Restarter
At the end of last year, I turned up at a Restart Party and joined other volunteers to become a Restarter.
The Restart Project has been generating lots of interest and below are my contributions to two interviews, one in English and one in French, about it. Follow the links to read the articles in full.
Janet contributed Could you become a Restarter to the RSA's Great Recovery blog:
[...] We owe all of our momentum to our Restarters, a fun yet serious group. We would like to take a moment to introduce two of our committed repairers, and share their approach to repair. [...]
David, an east Londoner who has a background in tech and telecommunications, and is a privacy and civil liberties activist, writes
“The skills needed for most repairs are: a lot of common sense, some limited experience (acquired at a Restart Party), good research skills and access to a few tools. For example, if you can deal with a blown fuse, you have some understanding of continuity and if you have ever touched a lit light bulb, you understand that current generates heat. So when a device stops working, first steps are to check that everything is still connected, that electricity flows, and that there’s no dust or crumbs blocking any fan (an air duster often comes handy). For how to open a device such as a laptop or a mobile phone, that’s where the research skills comes in handy as it is likely already documented somewhere on a web page or a video. Experience will be useful to realise how hard to pull on a part to pry it open while being careful to avoid ripping out a hidden connector, or that using an egg carton to store screws in the order of each step helps to find them again when time comes to reassemble things.”
Both believe in the empowering and transformative aspect of repair. [...]
And David says:
“For more than twenty years I’ve been communicating to demystify new technologies and software development, initially – and how to reclaim our civil liberties, later. What attendees get out of the Restart Parties should be much more than a repaired product: a willingness to fix their electronic products in the future and some basic repair skills. The Restart Parties are an occasion for collaborative repairing, where there are no geniuses, just more experienced Restarters (and hopefully soon to be Restarters). It is for this transformative process, when attendees realise that many repairs are accessible to them, that I am involved in Restart. The confidence gained at the Restart Parties by some attendees to start fixing things on their own is the most rewarding part of the experience.”
If you are reading this, perhaps you have a skill worth sharing: maybe you know how to make a slow PC faster again. Or you know how to clean a printer, or how to extend the battery life of a smartphone. Perhaps you are a professional repairer or a tinkerer, and you can teach us more. If you’d like to get involved, please contact us on our website or on Meetup.com.
Béatrice Debut wrote Halte au gaspillage: des ateliers londoniens pour les nuls en électronique for the AFP:
Ordinateur poussif, bouilloire défectueuse, lecteur MP3 en rade: plus besoin de s'arracher les cheveux pour les réparer ou de se précipiter au magasin pour les remplacer. A Londres, les novices peuvent apprendre gratuitement à prolonger la vie de leurs appareils, une alternative à la société de consommation en période de crise économique et écologique.
Lyn Turner, bonnet bleu enfoncé sur la tête et chien en laisse, est frustrée. Cette quinquagénaire ne peut plus écouter ses programmes favoris: sa petite radio est en panne.
"Je serais surprise si vous parveniez à la réparer", lance-t-elle, en la confiant à l'un des bénévoles férus de technologies de l'organisation "Restart Project" ("Projet redémarrer").
Ce samedi, l'atelier a élu domicile dans une boutique vide-greniers de North Cheam, une banlieue modeste du sud de Londres. David Mery, barbe poivre et sel soignée, tout de noir vêtu, vérifie d'abord les piles, sous l'oeil attentif de Lyn. Bingo. Une pile a coulé. Il la remplace et la radio se remet à crépiter. "1305, c'est ma fréquence préférée", explique Lyn à David qui s'exécute.
"La prochaine fois, vérifiez les piles, et si vous n'utilisez pas votre radio pendant longtemps, mettez-les dans un tiroir", conseille David, 47 ans. Lyn acquiesce. [...]
Les ateliers, organisés deux fois par mois à Londres, visent à "démystifier la réparation" pour que "la personne ait confiance de se lancer elle-même la prochaine fois", explique David, ancien journaliste. [...]
Learn more about filming the police conducting stop and search operations with a brilliant animated film retracing the police intimidation of Gemma Atkinson:
Act of Terror from Fat Rat Films.
There's further information, including the script, story board and animation boards on the accompanying Act of Terror website.
Update: StopWatch has published Viewed With Suspicion: The Human Cost Of Stop And Search, a video and 33-page report. (That web page also includes a film by the StopWatch youth group, exploring young Londoners' feelings about stop and search.)
The Home Affairs Committee published a damning report on the Independent Police Complaints Commission (IPCC). (I contributed some written evidence based on my experience.) The introduction is explicit:
4. Police officers are warranted with powers that can strip people of their liberty, their money and even their lives and it is vital that the public have confidence that those powers are not abused. In this report, we conclude that the Independent Police Complaints Commission is not yet capable of delivering the kind of powerful, objective scrutiny that is needed to inspire that confidence.
Nearly a quarter of officers were subject to a complaint last year. When appeals were made against the way police forces handled a complaint, the IPCC found that the police had been wrong in 31% of all cases. It decided against the police in almost two thirds of appeals where police had decided not to record someone’s complaint.
The report includes a useful practical annex on the complaints & appeals process:
1. If you think a police officer has behaved incorrectly then you have a right to complain. You should give details of when, where, what happened, what was said, the police officers and witnesses involved, and whether any proof exists of any damage or injury.
There is no time limit on making a complaint, but if a year goes by the incident may not be investigated.
2. If your complaint is about a chief constable you should contact your Police and Crime Commissioner. (For London, read the Metropolitan Police Commissioner and the Mayor's Office for Policing and Crime.)
3. If your complaint is not about a chief constable, contact the police force involved, by e-mail, telephone or in person. A solicitor or your local MP can also make a complaint on your behalf.
4. All valid complaints against the police must be recorded, which means that it has formal status under the Police Reform Act 2002. Each police force in England and Wales has a duty to either record your complaint or tell you why it has decided not to record your complaint.
5. The IPCC does not have the power to record complaints. This must be done by the chief officer or the Police and Crime Commissioner responsible. You can send a complaint to the IPCC but it will be forwarded to the relevant police force and the IPCC will not read or see your complaint.
A table elsewhere in the report explains the different modes of investigation of complaints:
When the Commission receives a complaint or a referral, it decides how it should be dealt with. This is referred to as a "mode of investigation" decision.
a) Local Resolution, carried out entirely by the police with the complainant's consent. There is a right of appeal to the Commission.
b) Supervised investigations, where the IPCC sets out terms of reference for the police. There is a right of appeal to the Commission.
c) Managed investigations, carried out by police forces under the direction and control of the Commission.
d) Independent investigations, carried out by the Commission's own investigators and overseen by a Commissioner.
My complaint ended up being a supervised investigation run by the Metropolitan Police Service's Directorate of Professional Standards (DPS). When I went to meet the officers from the DPS for them to take my witness statement to start their investigation, I had prepared a written witness statement. I recommend you do the same. Here's some other useful advice I included in my statement to the Home Affairs Committee:
10. My written statement of witness used by the DPS to start its IPCC-supervised enquiry concluded with a list of desired outcomes. These were ignored by the IPCC, which focused on the terms of reference drawn by the DPS.
11. With hindsight I would have ensured that all my desired outcomes were included in the terms of reference. The DPS attempted to pressure me to go for local resolution instead of a full investigation and to shorten my written statement of witness. I resisted this pressure. The definition of the terms of reference to be narrower than my statement of witness achieved a similar outcome for the police without being as obvious.
12. If the current system continues, it must be made clear to the complainants that the terms of reference are the only scope for any outcome they may be expecting in approaching the IPCC.
Back to the process:
Complaints are usually resolved by local resolution or local investigation by the police force involved. There is no limit on an investigation or local resolution, but you should be updated every 28 days. Complaints can lead to an agreed resolution (such as apology), internal misconduct proceedings, or criminal proceedings. The IPCC only investigates the most serious complaints referred to it by the police.
6. You may be able to appeal if you are not happy with the outcome. Appeals may be directed to the IPCC, the chief constable, or the police and crime commissioner. You cannot appeal if the investigation into your complaint has been managed or carried out independently by the IPCC.
7. You can appeal against a recording decision. The IPCC will look at your case to see whether or not recording your complaint was justified.
8. You can appeal against a local resolution. In most circumstances, appeals against the outcome of the local resolution process will be handled by the chief officer of the police force.
9. You can appeal against a decision to disapply a complaint, or the action taken after a decision to disapply, either to a chief officer or to the IPCC, which must receive your appeal within 29 days of the date of the letter telling you about the outcome of the complaint.
10. You can appeal against a decision to discontinue a complaint.
11. You can appeal against the police force's decision about your complaint, either to a chief officer or to the IPCC. Again, you will need to write within 29 days.
Your appeal will either be "upheld" or "not upheld". If your appeal is upheld, the appeal body will tell you any instructions it has given to the police force involved. If your appeal is not upheld, it will write to you and explain why it did not uphold your appeal.
This last paragraph is misleading in that 'instructions' are really only recommendations. The Home Affairs Committee's report specifically addressed this point:
68. In one case, the Commission "requested" that the Metropolitan Police Service reconsider a request for personal data to be expunged and "informed" the service that a copy of a compulsory form "should" be provided.[Ev w44, David Mery, para 14] This kind of light-touch recommendation is a long way from the kind of clear instructions for improvements that Dame Anne Owers said: "there should be a requirement formally to respond with an action plan".[Q 89, Dame Anne Owers] She suggested that Police and Crime Commissioners could contribute by ensuring that the Commission's work led to improvement across the service:
we need to work on [...] mechanisms to check whether what we have done has made a difference [...] Police and Crime Commissioners do form a place where I would envisage discussions going on between Commissioners, heads of casework and themselves about what is happening and if it is not happening why isn't it happening?[Q 74, Dame Anne Owers]
The Brussels Privacy Declaration:
Privacy is a fundamental human right, but today this right is widely ignored. We are outraged.
[...]
The future of Europe needs privacy, and we need you to defend this fundamental right now.
Lord Taylor of Holbeach (Conservative), the Home Office Minister responsible for DNA announced the government's timetable for eventually commencing Part 1, chapter 1 of the Protection of Freedom Act:
Part 1, chapter 1 of the Protection of Freedoms Act implements the commitment in the Government's coalition agreement to reform DNA and fingerprint retention.
This Government want to protect the privacy and human rights of its citizens, while maintaining effective databases that protect the public and reduce crime.
The Protection of Freedoms Act fundamentally changes the principles behind the operation of biometric databases. From being databases that collected DNA profiles and fingerprints from every person arrested and retained them indefinitely, they will now operate proportionately, considering guilt and innocence, the seriousness of the offence and the age of the individual. In this way, they can continue to operate effectively while providing far greater protection of civil liberties.
Implementation of the Act is not a simple matter. A large amount of work is needed to prepare police forces, forensic laboratories and national databases. Complex reprogramming of databases is required to ensure that each person's DNA and fingerprints are removed or retained correctly and at the right time. This work will be carried out thoroughly so that biometric material is not held unlawfully, and material needed to solve crime is not unnecessarily deleted.
Before the Act commences, it is necessary to destroy a significant amount of existing biometric material that the Act would not allow to be retained.
The first priority is the destruction of DNA samples. A DNA sample is an individual's biological material, containing all of their genetic information. The Government do not want to retain the complete genetic makeup of any of their citizens. Every DNA sample taken will be destroyed as soon as a DNA profile for use on the database has been obtained from it. Destruction of existing DNA samples will begin in December 2012 and be completed by May 2013.
DNA profiles, consisting of a string of 20 numbers and two letters to indicate gender, are stored on the National DNA Database (NDNAD). They allow a person to be identified if they leave their DNA at a crime scene but contain none of the person's genetic characteristics. The NDNAD and the Police National Computer (PNC) must both be reprogrammed to allow DNA profiles which may not be retained under the Act to be correctly identified and deleted. Deletion from the NDNAD of existing DNA profiles which do not meet requirements for retention will begin in January 2013 and be completed by September 2013.
Fingerprints are stored electronically on the national fingerprint database, IDENT1. IDENT1 and the PNC must both be reprogrammed to allow fingerprints which may not be retained under the Act to be correctly identified and deleted. Deletion from IDENT1 of fingerprints which do not meet requirements for retention will begin in March 2013 and be completed by September 2013. Following deletion of each IDENT1 fingerprint set, police forces will destroy any corresponding hard copies they hold.
The Biometrics Commissioner will be appointed in early 2013. The role of the commissioner will be to keep under review the retention and use of biometric material retained subject to the Act's provisions, and, in particular, to adjudicate on those cases where the police apply to retain material of someone arrested for, but not charged with a serious offence for a limited period or where a national security determination is made.
Once destruction of existing biometric material is complete and the necessary processes have been set up, legislative commencement will take place, no later than October 2013.
Developing the technology for a fully automated speculative search will take a few more months. A transitional measure will be provided to allow speculative searching and quality checks to be undertaken using existing technology. This will ensure Commencement is not delayed and matches to crimes are not missed while the final piece of work is completed.
The publication of this timetable demonstrates both the complexity of the work involved in implementing the Act and removing innocent people's DNA and fingerprints from our databases, and the Government's commitment to completing this work as soon as safely possible. [Emphasis added.]
The million plus innocents whose biometric material is being retained will be counting the days until September 2013. However, until the legislative commencement, the current procedure, the exceptional case process, is still in force; the Metropolitan Police Service made this very clear:
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.
So until then, if you believe your situation is exceptional, you may still want to request the chief constable of the force that arrested you to (re)consider your case (for practical tips, see Reclaim Your DNA.) If you succeed to have your case considered exceptional, your Police National Computer (PNC) record will be deleted as well as your DNA and fingerprints, there is no such promise in the Protection of Freedom Act's implementation timetable. As for photographs kept by the police, limit on their retention will likely have to wait for a test case to come to court.
In his timetable, the minister points out that 'Implementation of the Act is not a simple matter.' What he does not highlight is that this government could have started working on the tools necessary to implement this act earlier, and the police knew some changes would be needed from as far back as 2008 when judges unanimously ruled in S and Marper v. the UK in 2008:
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, as applied in the case of the present applicants, 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. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.
As the timetable does not specify a notification mechanism, for those innocents having been arrested, any celebration for not having personal data held by the police anymore and no longer being an honorary criminal will have to wait until next autumn.
In response to a withdrawn Motion of Regret moved by Lord Scott of Foscote (Crossbench) on 2012-12-05, Lord Taylor of Holbeach (Conservative), the Home Office Minister responsible for DNA responded:
[...] We anticipate that the elimination of the estimated 6 million DNA samples covered by the provisions of the Protection of Freedoms Act will begin this month, and will be completed by the end of May 2013. All other material covered by these provisions will be destroyed by the end of September 2013. As I say, I will be able to give fuller details of schedules to noble Lords in a Written Ministerial Statement which I expect will be made in the next few days. [...]
Some police forces have started 'early deletion of Deoxyribonucleic Acid (DNA) samples, fingerprint and Police National Computer (PNC) records relating to individuals whose arrest was found to be unlawful and/or based on mistaken identity.' The Metropolitan Police Service's 'Early Deletion Requests - Consideration for the deletion of DNA samples, Fingerprint, PNC Records and CSIS Photographic Images.' (pdf) was created on 2012-05-10. These early deletions are very limited as James Brokensire detailed on 2012-10-31 when answering David Davis questions about 'how many (a) DNA profiles and (b) biological samples have been deleted or destroyed since Royal Assent was given to the Protection of Freedoms Bill on 1 May 2012.':
39,799 DNA profiles were deleted from the National DNA Database between 1 May 2012 and 26 October 2012. 34,496 of the DNA profiles deleted were taken from individuals by UK law enforcement agencies, of which 17,945 were taken by England and Wales police forces. 5,303 of the DNA profiles deleted were recovered from crime scenes by UK law enforcement agencies, of which 4,795 were recovered by England and Wales police forces. The number of biological samples destroyed is not held centrally. Records are kept by the forensic service providers storing samples on behalf of police forces.
There's more than one million innocents on the National DNA Database (an estimated total of 1,083, 207 innocent individuals as of 2010-03-31 ). It would appear that they will have to wait a further ten months to no longer be honorary criminals suffering from the suspicion of being on all these police databases, but at least it's a deadline we can all hold the government to account.
For more relevant information, see my earlier post Protection of Freedom Act, a step forward for DNA retention.
The United Families and Friends Campaign (UFFC) – a coalition of families and friends of those who have died in the custody of police and prison officers and in the care of secure psychiatric hospitals – will have its 14th annual remembrance march against custody deaths this Saturday 2012-10-27. There will be a silent procession along Whitehall, followed by a noisy protest at Downing Street. Assembly is at 12.30pm by the South side of Nelson's Column in Trafalgar Square.
Last year's march, was unfortunately concluded by police provocation. After the event, Samantha Rigg-David (a sister of Sean Rigg) wrote on behalf of UFFC: '[...] Policing of the march in the past has appeared to be proportionate both in response to the sensitive nature of the event and also in recognition that it does not pose a threat to public order. This year, at about 3pm, after delivering the letter to Downing Street family members and friends found themselves subject to aggressive and degrading treatment at the hands of a large deployment of what we believe were TSG officers [...] We believe it was both entirely unwarranted and unnecessarily confrontational to deploy these officers [...]'
The Metropolitan Police eventually investigated their policing of the event, but found that 'no misconduct was identified on the part of any officer'. However meetings were arranged with UFFC 'regarding planning for the 2012 march, a view to ensuring the needs of the families were met.' I obtained a Report to summarise background and outcome of complaint and Commissioner’s meeting with Samantha and Marcia Rigg sent by the Met to the Mayor’s Office for Policing and Crime. (The Met refused to provide this summary report in their responses to several Freedom of Information requests.) At that meeting with the Rigg family, Met Commissioner Bernard Hogan Howe promised to address one of UFFC's long standing practical demands: 'Hundreds of police vans are to be fitted with closed-circuit television cameras to address concerns about the "hidden" abuse of suspects.'
The ten demands are:
- Replacement of the Independent Police Complaints Commission (IPCC) to ensure open robust transparent and thorough investigations from the very outset of police deaths in custody – with a removal of all ex-police officers for it to be a truly independent body.
- The Prisons and Probation Ombudsman should be placed on a statutory footing.
- Deaths in psychiatric detention and/or of those detained under the Mental Health Act must be subject to a system of properly funded investigation that is completely independent of the Health Service.
- Officers and officials directly involved in custody deaths are suspended until investigations are completed.
- Immediate interviewing of officers and all officials concerned with the death
- Officers and officials should never be allowed to collude over their evidence and statements of fact.
- Full and prompt disclosure of information to the families affected.
- Prosecutions should automatically follow ‘unlawful killing’ verdicts at Inquests and officers responsible for those deaths should face criminal charges, even if retired.
- Implementation of police body cameras and cameras in all police vehicles in the interests of both the officers and the public.
- There should be an automatic right to non means tested legal aid for families. There is a lack of funds for family legal representation at Inquests whilst officers and NHS staff get full legal representation from the public purse – this is unbalanced.
Overflow custody suites are visited but not Marylebone
The police made one arrest at the end of last year's march. A small group of those who participated in the demonstration went to Marylebone police station to wait for the release of the man who had been arrested, detained and eventually released without charge. This station has an overflow custody suite that is only occasionally used, mostly for public order situations. Mike Lyng, Quality and Assurance Advisor, explained on behalf of Territorial Policing and Central Operations:
In answering your specific question I can advise you that Marylebone Custody Suite was not opened in order to target any specific public order operation.
However on the day in question there were a number of events taking place in central London including The United Family and Friends Campaign annual march, Amnesty International solidarity to Syrian protestors march and Syrians love Syria counter demonstration.
In order to ensure sufficient facilities were available on this day, a charge centre in close proximity to the marches was requested. In this instance Marylebone Custody suite was selected as the dedicated charge centre. There was no specific request for the charge centre to be Marylebone. It was selected due to its proximity to the events taking place. The officer with the responsibility for this task was a sergeant from Kensington and Chelsea borough police working under the direction of Commander Michael Johnson from Public Order and Operational Support (CO11).
Several of those present wondered if Marylebone and other overflow custody suites are visited by Independent Custody Visitors (ICV). To find out I made several freedom of information requests and compiled the table in the post Visiting London's police custody suites. As custody suites can't be opened at short notice, the police can inform independent custody visitor panels of the opening of (non 24/7) custody suites at least a couple of days in advance and custody visitors can decide whether to schedule a visit. This system works for many overflow custody suites, however the Marylebone custody suites is one of those that didn't receive any ICV visit during 29 consecutive months. See the mentioned post for full details of independent visits to all of London's custody suites.
Safety of detainees when transported in police vans
The arrested man was concerned about the risk of injuries if the police van had had a traffic accident on the way to the police station. He had been handcuffed in the back and so couldn't sit properly and found it difficult to remain properly seated. I solicited the help of Jennette Arnold, my London Assembly Member, to find out more about the safety protocols for transportation of detained persons to a custody suite. Mark Rowley, Assistant Commissioner, Specialist Crime Operations responded earlier this year:
The guidance for the transportation of detainees is covered in the Police Driver and Vehicle Standard Operating Procedures (SOP). Specifically relating to the transportation of detainees in vans, officers are advised to accompany detainees so that they can be viewed at all times to prevent the detainees from self harm, taking illegal substances or disposing of evidence.
The decision on whether a detainee is handcuffed to the front or to the rear is at the discretion of the officer. However, the SOP does give some guidance, that persons handcuffed to the front should be monitored to prevent the issues raised above from occurring. Regarding the fitting of seat belts in the secure area of vans, currently there are no seat belts fitted as they could become ligature points or could be used by a detainee to cause injury to police officers or staff. The SOP was last reviewed in 2010 and as a living document is constantly under review.
When I was arrested, by the time I was transferred to a police van, they had moved the handcuffs to the front. I was sat in the secure area at the back of the van with nothing to hold on. I do not remember any police officer seating with me to monitor me during the short trip to the police station.
For safety reason, seatbelts are compulsory in cars where one is well seated in comfortable seats with their hands free, but there's no protection for handcuffed detainees sitting on hard seats at the back of police vans. It is very likely that detainees are hurt when a police van transporting them is involved in a traffic accident. A commenter annotated one my freedom of information request with the following personal story:
I was involved in an accident whilst in the back of a police van whilst being transported to a police station and I was cuffed as well as not having a seat belt on. It was never explained to me how to deal with an emergency stop under health and safety. I am currently seeking legal advice about the injury that I sustained.
Finding out hard data about injuries to detainees from traffic accidents has proved very difficult as it is not recorded in a way that can be found without a manual check of all recorded accidents:
The Traffic Operational command does not have or record details of how many detainees are transported to custody suites, although we do keep a record of the number of arrests made, but not for the whole of the Metropolitan Police Area.
We will not be able to supply details/numbers of how many detainees were injured while in a police Vehicle. Our Police collision database is not set up to run queries to identify who was injured in a collision.
Here's information regarding all collisions on public roads or public places in London involving police vehicles ('it may also include incidents where Metropolitan Police Service officers have been involved in collisions outside of the MPS district. Similarly, the information may include incidents where officers from other police forces have been involved in collisions within the MPS area'). '[N]ote that "collisions'"encompasses a wide range of incidents. For example, incidents resulting in minor scratches to incidents resulting in injuries to parties involved':
1/8/2007 to 31/12/2007: 1369 of which 235 resulted in injury
1/1/2008 to 31/12/2008: 3141 of which 444 resulted in injury
1/1/2009 to 31/12/2009: 2966 of which 429 resulted in injury
1/1/2010 to 31/12/2010: 2944 of which 389 resulted in injury
1/1/2011 to 31/11/2011: 2741 of which 326 resulted in injury
1/1/2012 to 2/8/2012: 1651 of which 192 resulted in injury
From April 2006 to March 2010, the Met listed eight fatalities following a collision on a road involving a 'police car' (there may be fatalities from collisions involving a police vehicle not included in these figures): four pedestrians, two drivers, one cyclist and one passenger. The passenger was a police officer, all the other fatalities were 'members of public'.
The independent charitable organisation Inquest records the number of deaths in police custody (or following other forms of contact with the police). Inquest explains that its 'figures are derived from our monitoring and casework and are independent of those produced by the Home Office, IPCC and other government agencies. We also monitor deaths in police pursuits and road traffic incidents (RTIs).'
Total deaths in police custody or otherwise following contact with the police, England & Wales, 1990 to 2012-09-05 Type Metropolitan Police Other forces Total Custody 249 701 950 Pursuit 33 284 317 RTI 19 93 112 Shooting 21 33 54 All deaths 323 1116 1439
It is likely that some detainees were among the several hundred injured annually in collisions involving a police vehicle. If any detainee died due to a traffic accident while they were transported to a police station, their death would likely be classified as a death in police custody rather than a road traffic accident.
According to Inquest, this year there has already been 14 deaths following contact with the police. This year's UFFC peaceful vigil and demonstration will hopefully be policed with more consideration.
The Protection of Freedoms Act (PoFA), which lays out new laws on DNA retention and the use of individuals' data in a variety of contexts, including in relation to biometrics in schools, CCTV and Automatic Number Plate Recognition (ANPR), received Royal Assent on 2012-05-01. Out-Law.com sums up the announcement:
[...] The Home Office said that "commencement orders" would be issued from July to enact some of the measures in the PoF Act.
The PoF Act also sets out new laws governing the retention and destruction of DNA and fingerprint profiles of suspected and convicted criminals. Last year the UK's Supreme Court ruled that police guidelines that allowed DNA samples taken during criminal investigations to be retained indefinitely were unlawful because it violated individuals' rights to privacy as guaranteed by human rights laws.
DNA and fingerprint samples can be retained "indefinitely" under the PoF Act in select circumstances, including where arrested suspects have been guilty of a serious crime previously. If those arrested suspects have no such previous conviction, their data must be destroyed after a three year period. Police can ask a district judge to issue an order enabling them to retain the information for a further two years, although this request can be appealed against.
The PoF Act requires that DNA or fingerprint samples must be destroyed if "it appears to the responsible chief officer of police that" it has been gathered unlawfully or from a third-party person in connection with a suspected criminal's arrest where the arrest was unlawful or based on mistaken identity.
However, DNA or fingerprint profile details can be retained beyond the expiry of retention periods for national security purposes unless a Biometrics Commissioner decides that it is "not necessary" for those purposes that the information is retained. The Human Rights Joint Committee had criticised this clause in its scrutiny of the draft PoF proposals.
The Committee had said the clause would "create a broad 'catch all' discretion for the police to authorise the retention of material indefinitely for reasons of national security." There had, at that point, been no "justification" why the power was "necessary and proportionate", it had said. [...]
At the beginning of the year, there was an estimated 5,882,724 total number of individuals whose DNA profile was retained on the National DNA Database (NDNAD). Already by 2010-03-31, there was an estimated total of 1,083, 207 innocent individuals whose DNA profile was on the NDNAD. Analysis of the English and Welsh approach so far, of indefinite retention of the DNA samples and profiles of all those arrested, has shown time and time again that retaining the DNA profiles of as many individuals as possible, many innocent, is ineffective and does not increase crime detection rate.
The PoFA's section on DNA retention is modelled on the Scottish approach. Once the law comes into force, from July according to Out-Law, six month-old DNA samples retained will be destroyed and most three year-old derived DNA profiles (and fingerprints and palm prints) of those not convicted or convicted of a single minor offence will be deleted as well.
This is clearly a welcome step by many whose personal data is on the National DNA Database. There are plenty of reasons, including stigma, discrimination, visa or job refusal, loss of personal data and higher risk of being falsely linked to crime, to want to be off the National DNA Database, especially for innocents and those convicted for some trivial matter.
It is a success for all the privacy activists and victims who campaigned to restore the presumption of innocence and the rehabilitation of offenders having been convicted of a minor crime. GeneWatch UK –as an indefatigable organisation at the forefront of the campaign to change the law to make the National DNA Database much smaller and more carefully controlled, and to safeguard privacy and rights without compromising the use of DNA in fighting crime– deserves much credit in this success.
Celebration will happen when the DNA sections come into force and DNA samples are destroyed and DNA profiles, fingerprints and palm prints are deleted. As no deadline has been issued for the enactment of all the DNA sections of the PoFA, if you are an innocent person with a record on the DNA database you may want to contact your MP without further delay. Help is offered at Reclaim Your DNA.
Two step backwards
The PoFA has limits, such as the national security exemption criticised by the Human Rights Joint Committee and highlighted in the excerpt from Out-Law.com above, and even removes some of the benefits of the earlier process. In the system that had been in place until now, very few individuals succeeded in getting off the NDNAD, but those that did manage to go through the exceptional case process had not only their DNA sample destroyed and their DNA profile, fingerprints and palm prints deleted, but also their associated Police National Computer (PNC) record deleted. There's no such requirement in the PoFA. And nothing is said either of photographs retained by the police. The retention of photographs has not been reviewed by judges in the court cases about DNA retention so it is likely that once PoFA is enacted, a test case on this specific issue will come to court.
Vigilance is required to ensure that ameliorations made to the rules for DNA retention by the police are not lost by worse data sharing initiatives elsewhere. At the end of 2011, the government unveiled plans to change the NHS Constitution to allow patients' records and other NHS data to be automatically shared with science companies. Dr Helen Wallace, Director of GeneWatch UK, warned about some of the potential risks: 'Every adult and baby with a blood or tissue sample stored in the NHS could end up with details of their genetic make-up stored in a cloud-based DNA database built by stealth within the NHS.'
When the police arrest someone they usually detain him or her in a cell in a station's custody suite. To ensure detainees are treated well, local community members –known as Independent Custody Visitors (ICVs)– volunteer to conduct unannounced visits of police custody suites and speak with detainees (with their consent) about their experience from the time they arrived in the custody suite. The visits are always done by a pair of ICVs and often last a couple of hours. At the end of each visit, the ICVs discuss with the custody staff any immediate concerns and write notes about the visit and any issues they feel need further answers from the police for follow up at the next quarterly ICV panel meeting.
Data obtained from Freedom of Information requests sent to the Metropolitan Police Authority (MPA) and the Metropolitan Police Service (Met) shows that there are 82 custody suites in London with a total of 1,057 cells. The Met explained they have a total of 992 operational cells contained within 72 custody suites across London, however ICVs also visits custody suites of the British Transport Police as well so these are included in the MPA data and my analysis.
Over a period of 29 months, they were 4,834 visits by ICVs. During that period, custody suites opened 24/7 were visited on average three times a month, 23 months out of the 29. On average, during a visit there were just over six detainees held in the custody suite and more than three of them where in their cells and accepted to talk to the ICVs.
| Type of custody suite | Total # stations | Total # cells | Total # visits | Average # months with visits | Average # visits / month visited | Total # det. in custody during visits | Average # det. in custody / visit | Total # det. spoken to by ICVs | Average # det. spoken to / visit |
| All custody suites | 82 | 1,057 | 4,834 | 19 | 2.9 | 30,597 | 6.3 | 15,906 | 3.3 |
24/7 custody suites | 52 | 816 | 4,348 | 23 | 3 | 28,648 | 6.6 | 14,856 | 3.4 |
Overflow custody suites | 18 | 159 | 95 | 4 | 2 | 265 | 2.8 | 157 | 1.7 |
Unknown (either 24/7 or overflow) | 2 | 55 | 17 | 2 | 68 | 1.2 | 42 | 0.8 | |
Closed custody suites | 10 | 82 | 336 | 13 | 2 | 1,616 | 4.8 | 851 | 2.5 |
It would have been interesting to find out how many persons are detained in each custody suite every month and for what reason, but that data is currently not collated by the Met. Ironically, even though this historic data is not held by the Met, some of it is held by the MPA as it is written down by ICVs during their visits. Stephen Bloomfield, Head of TP Criminal Justice, Territorial Policing Headquarters explains that 'The current NSPIS [National Strategy for Police Information Systems] Custody system does not store historic data regarding cell usage. It is designed to be a live system with a capacity to store custody records and not which cell was used or when a custody suite was full. No information is held centrally as to which custody suite is open on a monthly or daily basis although this has been identified as an area which requires work and it is hoped that this information will be held in the future.'
Marylebone and other overflow custody suites
After the United Friends and Family Campaign (UFFC) annual march at the end of last year (see Police provocations at peaceful march against deaths in custody and Question to the police authority about police provocations at peaceful march and Met's response to the 'Protecting the innocent' review on DNA retention), a small group of those that participated in this demonstration went to Marylebone police station to wait for the release of the man who had been arrested at the end of the march and was detained there. This station has an overflow custody suite that is only occasionally used, in particular for public order situations. Several of those present wondered if Marylebone and other overflow custody suites are visited by ICVs.
Overflow custody suites are mainly used as charge centres for major public or sporting events such as football matches, for local policing operations, for bail to returns and temporarily while another suite is closed for any reason e.g., cleaning, maintenance, upgrade work. In the couple of days it takes to plan the opening of an overflow custody suites, the police have the duty to inform ICV panels who can then schedule visits to custody suites that are not opened 24/7. Protocol 7 of Appendix G of the London ICV Handbook (pdf) specifies that 'A single point of police contact on the borough should be identified to inform [ICV] panels promptly of any intended changes, closures or additions to custody facilities'.
As can be seen in the summary table above, there are 18 overflow custody suites with a total of 159 cells. The average number of months visited during the 29 months surveyed period is low: four. This could indicate either that these overflow custody suites are not open often or that they're not visited even when opened; there's not enough information available to clarify this point. During the visits, there tends to be fewer detainees held in cells with an average of close to three, consequently ICVs on average spoke to fewer detainees in overflow custody suites than in those open 24/7.
The UFFC march was on Saturday 2011-10-29, Mike Lyng, Quality and Assurance Advisor, on behalf of Territorial Policing and Central Operations, 'advise [...] that Marylebone Custody Suite was not opened [on that day] in order to target any specific public order operation. However on the day in question there were a number of events taking place in central London including The United Family and Friends Campaign annual march, Amnesty International solidarity to Syrian protestors march and Syrians love Syria counter demonstration. In order to ensure sufficient facilities were available on this day, a charge centre in close proximity to the marches was requested. In this instance Marylebone Custody suite was selected as the dedicated charge centre. There was no specific request for the charge centre to be Marylebone. It was selected due to its proximity to the events taking place. The officer with the responsibility for this task was a sergeant from Kensington and Chelsea borough police working under the direction of Commander Michael Johnson from Public Order and Operational Support (CO11).'
Met searches reveal that during the period September to November 2011, the Marylebone custody suite has been opened on 18 days and received 137 detainees:
| Arrest date | Total held in Marylebone custody suite |
| 2011-09-11 | 5 |
| 2011-09-23 | 9 |
| 2011-09-24 | 13 |
| 2011-09-25 | 9 |
| 2011-09-30 | 13 |
| 2011-10-01 | 15 |
| 2011-10-02 | 12 |
| 2011-10-07 | 8 |
| 2011-10-08 | 15 |
| 2011-10-09 | 2 |
| 2011-10-15 | 3 |
| 2011-10-25 | 9 |
| 2011-10-26 | 2 |
| 2011-10-29 | 1 |
| 2011-11-09 | 3 |
| 2011-11-11 | 8 |
| 2011-11-13 | 1 |
| 2011-11-30 | 9 |
| Total | 137 |
The spreadsheet from the MPA does not list any ICV visit to Marylebone custody suite for a 29 months period including September and October 2011, and the latest published annual report of the Westminster ICV panel, for 2009, does not mention the Marylebone custody suite at all.
The system works for some overflow custody suites as for instance Tooting and Hackney were visited respectively 31 and 15 times during this 29 months period, however, like Marylebone, the Brentford, Orpington and Harrow Road custody suites didn't receive any ICV visit during that period.
Becoming an ICV
ICV panels are regularly recruiting new members. The ICV scheme was created following a recommendation of Lord Scarman in his report on the 1981 Brixton riot. It became a statutory scheme with the Police Reform Act 2002 and is managed by Police Authorities. To volunteer, contact the police authority local to where you live or work. In London, the ICV scheme was managed by the Metropolitan Police Authority (MPA) until earlier this month, and now by the new Mayor's Office for Policing and Crime (MOPC). Note that the wealth of information about the ICV scheme has not yet been moved from the MPA website to the MOPC one, so for more details follow the MPA link.
Bootnote 1 See the table below for a more detailed summary listing all the London custody suites:
| Borough | Station | Type of station (Met data) |
Type of station (MPA data) |
# cells (Met data) |
# visits | # months with visits | Average # visits / month visited | Total # det. in custody during visits | Average # det. in custody / visit | Total # det. spoken to by ICVs | Average # det. spoken to / visit |
| Barking and Dagenham | Freshwarf New Build | 24/7 | 27/7 | 30 | 0 | ||||||
| Barking and Dagenham | Barking | Overflow | 7 | 4 | 3 | 1.3 | 30 | 7.5 | 14 | 3.5 | |
| Barking and Dagenham | Dagenham | Overflow | Closed | 9 | 30 | 12 | 2.5 | 130 | 4.3 | 61 | 2.0 |
| Barnet | Colindale | 24/7 | 24/7 | 21 | 213 | 29 | 7.3 | 2,153 | 10.1 | 1,270 | 6.0 |
| Barnet | Barnet | Overflow | Overflow | 5 | 5 | 3 | 1.7 | 6 | 1.2 | 6 | 1.2 |
| Barnet | Whetstone | Overflow | Closed | 4 | |||||||
| Bexley | Bexleyheath | 24/7 | 24/7 | 20 | 125 | 29 | 4.3 | 801 | 6.4 | 399 | 3.2 |
| Brent | Kilburn | 50% Overflow | 24/7 | 17 | 90 | 29 | 3.1 | 437 | 4.9 | 276 | 3.1 |
| Brent | Wembley | 24/7 | 24/7 | 25 | 93 | 29 | 3.2 | 1,049 | 11.3 | 589 | 6.3 |
| Brent | Wembley Park (BTP) | 24/7 | 10 | 18 | 12 | 1.5 | 10 | 0.6 | 5 | 0.3 | |
| Bromley | Bromley (PFI) | 24/7 | 24/7 | 30 | 127 | 29 | 4.4 | 913 | 7.2 | 465 | 3.7 |
| Bromley | Orpington | Overflow | Overflow | 8 | 0 | ||||||
| Camden | Holborn | 24/7 | 24/7 | 16 | 90 | 29 | 3.1 | 514 | 5.7 | 289 | 3.2 |
| Camden | Kentish Town | 24/7 | 24/7 | 11 | 90 | 29 | 3.1 | 434 | 4.8 | 284 | 3.2 |
| Camden | Tottenham Court Road (BTP) | 24/7 | 10 | 91 | 29 | 3.1 | 336 | 3.7 | 197 | 2.2 | |
| Camden | Albany Street | Overflow | Overflow | 9 | 9 | 5 | 1.8 | 39 | 4.3 | 29 | 3.2 |
| Croydon | Croydon | 24/7 | 24/7 | 14 | 104 | 29 | 3.6 | 728 | 7.0 | 448 | 4.3 |
| Croydon | South Norwood | 24/7 | 24/7 | 11 | 103 | 29 | 3.6 | 560 | 5.4 | 337 | 3.3 |
| Ealing | Acton | 24/7 | 24/7 | 22 | 133 | 29 | 4.6 | 1,346 | 10.1 | 642 | 4.8 |
| Ealing | Southall | 24/7 | 24/7 | 11 | 123 | 28 | 4.4 | 508 | 4.1 | 300 | 2.4 |
| Enfield | Edmonton | 24/7 | 24/7 | 14 | 222 | 29 | 7.7 | 1,976 | 8.9 | 634 | 2.9 |
| Enfield | Enfield | Overflow | Overflow | 7 | 6 | 2 | 3.0 | 21 | 3.5 | 9 | 1.5 |
| Greenwich | Plumstead | 24/7 | 24/7 | 24 | 99 | 29 | 3.4 | 1,021 | 10.3 | 555 | 5.6 |
| Greenwich | Greenwich | Overflow | Closed | 8 | 2 | 2 | 1.0 | 22 | 11.0 | 10 | 5.0 |
| Hackney | Shoreditch | 24/7 | 24/7 | 9 | 86 | 26 | 3.3 | 355 | 4.1 | 200 | 2.3 |
| Hackney | Stoke Newington | 24/7 | 24/7 | 16 | 102 | 28 | 3.6 | 766 | 7.5 | 488 | 4.8 |
| Hackney | Hackney | Overflow | Overflow | 5 | 15 | 7 | 2.1 | 34 | 2.3 | 20 | 1.3 |
| Hammersmith and Fulham | Hammersmith | 24/7 | 24/7 | 18 | 4 | 3 | 1.3 | 18 | 4.5 | 10 | 2.5 |
| Hammersmith and Fulham | Fulham | 24/7 | Overflow | 9 | 9 | 6 | 1.5 | 28 | 3.1 | 16 | 1.8 |
| Hammersmith and Fulham | Fulham Place Road (BTP) | 33 | 15 | 2.2 | 45 | 1.4 | 26 | 0.8 | |||
| Hammersmith and Fulham | Shepherds Bush | Overflow | Closed | 9 | |||||||
| Haringey | Hornsey | 24/7 | 24/7 | 11 | 112 | 29 | 3.9 | 627 | 5.6 | 282 | 2.5 |
| Haringey | Tottenham | 24/7 | 24/7 | 7 | 103 | 29 | 3.6 | 576 | 5.6 | 272 | 2.6 |
| Haringey | Wood Green | Closed | 4 | 28 | 12 | 2.3 | 3 | 0.1 | 2 | 0.1 | |
| Harrow | Harrow | 24/7 | 24/7 | 13 | 110 | 29 | 3.8 | 543 | 4.9 | 247 | 2.2 |
| Havering | Romford | 24/7 | 24/7 | 13 | 102 | 29 | 3.5 | 695 | 6.8 | 344 | 3.4 |
| Havering | Hornchurch | Overflow | Closed | 8 | 2 | 2 | 1.0 | 9 | 4.5 | 5 | 2.5 |
| Heathrow | Heathrow Polar Park | 24/7 | 24/7 | 30 | 116 | 29 | 4.0 | 382 | 3.3 | 251 | 2.2 |
| Hillingdon | Uxbridge | 24/7 | 24/7 | 11 | 120 | 29 | 4.1 | 657 | 5.5 | 360 | 3.0 |
| Hillingdon | West Drayton | 24/7 | 24/7 | 9 | 116 | 29 | 4.0 | 335 | 2.9 | 215 | 1.9 |
| Hounslow | Chiswick | 24/7 | 24/7 | 7 | 90 | 27 | 3.3 | 241 | 2.7 | 122 | 1.4 |
| Hounslow | Hounslow | 24/7 | 24/7 | 12 | 115 | 29 | 4.0 | 632 | 5.5 | 338 | 2.9 |
| Hounslow | Brentford | Overflow | Overflow | 5 | 0 | ||||||
| Islington | Islington | 24/7 | 24/7 | 24 | 133 | 29 | 4.6 | 1,392 | 10.5 | 710 | 5.3 |
| Islington | Brewery Road (BTP) | 24/7 | 22 | 7 | 3.1 | 60 | 2.7 | 26 | 1.2 | ||
| Islington | Holloway | Overflow | Overflow | 8 | 3 | 3 | 1.0 | 4 | 1.3 | 4 | 1.3 |
| Kensington and Chelsea | Chelsea | 24/7 | 24/7 | 8 | 16 | 8 | 2.0 | 45 | 2.8 | 28 | 1.8 |
| Kensington and Chelsea | Notting Hill | 24/7 | 24/7 | 6 | 16 | 8 | 2.0 | 34 | 2.1 | 17 | 1.1 |
| Kensington and Chelsea | Kensington | Overflow | Overflow | 6 | 1 | 1 | 1.0 | 1 | 1.0 | 1 | 1.0 |
| Kingston upon Thames | Kingston | 24/7 | 24/7 | 10 | 112 | 29 | 3.9 | 415 | 3.7 | 274 | 2.4 |
| Lambeth | Brixton | 24/7 | 24/7 | 16 | 103 | 29 | 3.6 | 815 | 7.9 | 388 | 3.8 |
| Lambeth | Kennington | 24/7 | 24/7 | 9 | 89 | 28 | 3.2 | 383 | 4.3 | 199 | 2.2 |
| Lambeth | Streatham | 24/7 | 24/7 | 6 | 101 | 29 | 3.5 | 264 | 2.6 | 138 | 1.4 |
| Lewisham | Lewisham (PFI) | 24/7 | 24/7 | 33 | 81 | 29 | 2.8 | 1,135 | 14.0 | 407 | 5.0 |
| Lewisham | Catford | Overflow | Overflow | 12 | 2 | 2 | 1.0 | 18 | 9.0 | 7 | 3.5 |
| Merton | Wimbledon | 24/7 | Closed | 10 | 89 | 26 | 3.4 | 347 | 3.9 | 177 | 2.0 |
| Newham | Forest Gate | 24/7 | 24/7 | 15 | 90 | 29 | 3.1 | 702 | 7.8 | 354 | 3.9 |
| Newham | Plaistow | 24/7 | 24/7 | 12 | 86 | 29 | 3.0 | 551 | 6.4 | 341 | 4.0 |
| Newham | West Ham (BTP) | 22 | 19 | 1.2 | 23 | 1.0 | 16 | 0.7 | |||
| Redbridge | Ilford | 24/7 | 24/7 | 17 | 98 | 29 | 3.4 | 983 | 10.0 | 525 | 5.4 |
| Redbridge | Barkingside | Overflow | Closed | 7 | 2 | 2 | 1.0 | 7 | 3.5 | 2 | 1.0 |
| Richmond upon Thames | Richmond | 24/7 | 24/7 | 5 | 21 | 7 | 3.0 | 51 | 2.4 | 36 | 1.7 |
| Richmond upon Thames | Teddington | 24/7 | Overflow | 5 | 5 | 4 | 1.3 | 9 | 1.8 | 8 | 1.6 |
| Richmond upon Thames | Twickenham | Overflow | Overflow | 4 | 1 | 1 | 1.0 | 0 | 0.0 | 0 | 0.0 |
| Southwark | Peckham | 24/7 | 24/7 | 18 | 69 | 27 | 2.6 | 600 | 8.7 | 293 | 4.2 |
| Southwark | Walworth | 24/7 | 24/7 | 20 | 78 | 29 | 2.7 | 766 | 9.8 | 335 | 4.3 |
| Southwark | Southwark | Overflow | 13 | 1 | 1 | 1.0 | 0 | 0.0 | 0 | 0.0 | |
| Sutton | Sutton (PFI) | 24/7 | 24/7 | 30 | 126 | 29 | 4.3 | 857 | 6.8 | 460 | 3.7 |
| Tower Hamlets | Bethnal Green | 24/7 | 24/7 | 19 | 23 | 9 | 2.6 | 191 | 8.3 | 114 | 5.0 |
| Tower Hamlets | Limehouse | 24/7 | 24/7 | 7 | 22 | 10 | 2.2 | 75 | 3.4 | 46 | 2.1 |
| Waltham Forest | Waltham Forest / Leyton | 24/7 | 24/7 | 30 | 0 | ||||||
| Waltham Forest | Chingford | Closed | 12 | 98 | 29 | 3.4 | 611 | 6.2 | 373 | 3.8 | |
| Wandsworth | Battersea | 24/7 | 24/7 | 10 | 107 | 29 | 3.7 | 454 | 4.2 | 203 | 1.9 |
| Wandsworth | Tooting | Overflow | Overflow | 5 | 31 | 8 | 3.9 | 73 | 2.4 | 42 | 1.4 |
| Wandsworth | Wandsworth | 24/7 | Closed | 11 | 85 | 22 | 3.9 | 487 | 5.7 | 221 | 2.6 |
| Westminster | Belgravia | 24/7 | 24/7 | 16 | 10 | 6 | 1.7 | 59 | 5.9 | 35 | 3.5 |
| Westminster | Charing Cross | 24/7 | 24/7 | 45 | 9 | 5 | 1.8 | 96 | 10.7 | 58 | 6.4 |
| Westminster | Paddington Green | 24/7 | 24/7 | 14 | 12 | 7 | 1.7 | 67 | 5.6 | 29 | 2.4 |
| Westminster | Ebury Bridge (BTP) | 24/7 | 4 | 27 | 8 | 3.4 | 40 | 1.5 | 21 | 0.8 | |
| Westminster | Harrow Road | Overflow | Overflow | 14 | 0 | ||||||
| Westminster | Marylebone | Overflow | Overflow | 9 | 0 | ||||||
| Westminster | West End Central | Overflow | Overflow | 28 | 3 | 3 | 1.0 | 2 | 0.7 | 1 | 0.3 |
Bootnote 2 For even more details, I've collated the source data and my analysis in this Excel spreadsheet.
Bootnote 3 And to check out the several Freedom of Information requests it took to obtain all the data used in this post, see:
The British Transport Police (BTP) have CCTV cameras in the strip search rooms of all their custody suites in contradiction to their own CCTV in Custody Standard Operating Procedures and to the Home Office guidelines. I detailed these findings in the post British Transport Police pervert CCTV policy.
The BTP said that the contradiction with their own procedures does not exist 'as [the BTP CCTV in Custody Standard Operating Procedure (SOP)] is only a draft SOP and is still awaiting sign off'. The latest available draft is dated January 2010.
The BTP also claimed that by carrying out strip searches in rooms with CCTV cameras they are not in breach of the Home Office Safer Detention & Handling Guidelines (SDH) 'as long as the recording of the search is necessary and proportionate.'
To substantiate this claim, a BTP officer must decide before the start of the strip search whether a recording will be necessary and proportionate.I asked for the criteria they use to determine whether the CCTV recording of a strip search is necessary and proportionate. My questions was forwarded by the BTP Data Protection & Freedom of Information Researcher to Mark Leahy, Head of CCTV, British Transport Police, London. Here's the BTP's response:
The decision of whether to CCTV record strip searches is taken on a case by case basis. It is a decision that is taken by the individual Custody Sergeant and British Transport Police do not have a specific set of local guidelines that are followed. However, all decisions are carried out in accordance with PACE Code C and with the Safer Detention & Handling Guidelines.
(For relevant extracts from the SDH guidelines and PACE Code C, see the earlier British Transport Police pervert CCTV policy.)
I also asked for the relevant training material used to train BTP officers to enable them to determine whether the CCTV recording of a strip search is necessary and proportionate, what elements they must base their decision on, when they must make such decision and what kind of reporting of their decision they must make. The BTP do not hold any such training material.
Individual BTP officers are placed in an impossible situation, even if they try to act with respect to the privacy and the dignity of detainees being strip searched: CCTV cameras are installed in strip search rooms in all the BTP custody suites in contradiction to the BTP and the Home Office policies, and BTP Custody Sergeants are asked to decide on an ad hoc basis, without any training or guidelines, whether the actual recording of a strip search will be necessary and proportionate.
When I was unlawfully
arrested at Southwark tube station in 2005, the first thing police officers
said they found suspicious was that I was ‘avoiding them’. When I
entered the station, instead of looking at them, I looked at the steps. It
probably didn't help either that I had an eye infection that day.
Since then, there has been many more stops and searches without the need for reasonable suspicion, and much further education. This should make it clear that avoiding eye contact does not mean being suspicious.
For instance, the National Autistic Society published Autism: a guide for criminal justice professionals, endorsed by the Association of Chief Police Officers, which contains advice such as:
Misunderstanding social cues
Many people with autism find it difficult to make eye contact. In some cases it will be fleeting or may be avoided altogether. In others, eye contact may be prolonged or intrusive. This has led to cases such as a young man with autism who was served an Anti-Social Behaviour Order for staring over a neighbour’s fence.
“Sometimes we find it hard or even painful to make eye contact, and people can misunderstand us, thinking we are shifty or dishonest.”
Person with Asperger syndrome“I recently found myself in court opposite a 15-year-old with Asperger syndrome and it was obvious how difficult he was finding the whole thing and how his behaviour might influence the view the magistrates took of him. For example, the lack of eye contact can be interpreted as a person telling lies. Magistrates have been trained on the eye contact issue in connection with certain cultures but I am not sure that they have been made aware of how it is also the case in people with Asperger syndrome.”
Solicitor, Brighton and Hove
However it would appear that avoiding eye contact is still perceived as highly suspect. This is an extract from the UK Border Agency response (pdf) sent a couple of days ago to a freedom of information request by David Hansen about the targeting of bus passengers for passport checks:
Using these powers [to stop and question a person ‘in-country’] Immigration Officers may legitimately question individuals encountered in public places in order to determine their immigration status under three specific circumstances:
- The intelligence is so specific that the Immigration Officer knows the immigration offender will be travelling on a specific date, time, location, train etc;
- The Immigration Officer has formed a reasonable suspicion that the individual is an immigration offender e.g. from what is said by the person during the course of a prior interview with a police officer; or
- Where the individual displays an ‘adverse reaction’ to a clearly identifiable immigration presence. This could give rise to a ‘reasonable suspicion’ that the person is an immigration offender. An ‘adverse reaction’ could include attempting to avoid passing through or near a group of Immigration Officers, a sudden or unexplained change of direction, avoiding eye contact or hanging back from barriers. [Emphasis added.]
Rupert Goodwins's recommendation, from his guide to not getting arrested in London, still applies:
He didn't look at the police at the entrance to the station. The plod wasn't detailed about how much looking is required to allay their suspicion — the more the merrier, I guess. I recommend carrying a pair of binoculars on a tripod: there may be no police at your station, and you might have to sweep the area. Once you've found a policeman, stick an "I've Been Seen!" badge on their lapel.
GeneWatch UK warns about some of the risks of the David Cameron's plan to share NHS data with private companies:
[...] "Every adult and baby with a blood or tissue sample stored in the NHS could end up with details of their genetic make-up stored in a cloud-based DNA database built by stealth within the NHS" said Dr Helen Wallace, Director of GeneWatch UK. "The Prime Minister should come clean about whether sharing people's DNA and genetic information is part of his new plans. Is Google one of the private companies that will be offered access to people private information stored in the NHS? Will DNA and genetic information be shared with them or other companies without people's knowledge or consent?" [...]
Further information about the new government data sharing plans can be found on the GeneWatch UK's NHS data-sharing 2011 page.
In response to a series of Freedom of Information requests, the British Transport Police (BTP) have revealed they have installed CCTV cameras in the strip search rooms in all their ten custody suites. This is contrary to the Home Office guidance and the practice of the Met. It is also contrary to BTP's own current policy.
BTP say there won't be CCTV in strip search rooms, except they all have CCTVs
The BTP initially explained that 'Both the BTP Policy and the [Safer Detention & Handling (SDH)] Home Office Guidance state that CCTV is not used in rooms used for strip or intimate searches.' After some further prompting, the BTP admitted that 'All ten [BTP] custody suites have CCTV in rooms where strip searches are being carried out', and that common sense should be put aside as 'You should note that this is not in contradiction to the [BTP] CCTV in Custody SOP [Standard Operating Procedure] as it is only a draft SOP and is still awaiting sign off. Nor are BTP in breach of the SDH Guidelines which states that strip/ searches can be carried out in a room with CCTV as long as the recording of the search is necessary and proportionate.' (Emphasis added.)
Section 3.10.4 of the BTP CCTV in Custody SOP (pdf) below is explicit when using cells for strip searches:
Cells with cameras will not be used for strip or intimate searches
Note, however, that one needs to extrapolate about rooms other than cells used for strip searches, or refer to the BTP explanations in their freedom of information response that that CCTV is not used in rooms used for strip or intimate searches.
This version of the SOP is v0.14 dated January 2010 (with a start date and a review date both of 2009). The BTP Information Standards Manager noted 'that this is a draft copy of the Standard Operating Procedure and has not been signed off by a member of the Senior Command Team.' One of the ten BTP custody suites (pdf list), at Brewery Road, was opened in August 2011, after this SOP was drafted. (This custody suite is the first and so far only one built using a modular system created by Britspace.) This draft SOP describes the opposite of what had been built before and is not followed either for custody suites built since.
Section 15.3.4 of the mentioned Home Office Guidance on the Safer Detention & Handling of Persons in Police Custody (pdf) states:
Cells equipped with CCTV should not generally be used to conduct strip searches or consultations between detainees and their legal representatives. There may be occasions when recording a strip search via CCTV is desirable for the protection of staff, however, consideration must be given to PACE Codes of Practice, Code C, Annex A, paragraph 11(b). The recording of the search must be shown to be necessary and proportionate in the circumstances. For further information see 15.3.10 PACE and Codes of Practice." [Emphasis added]
and section 15.3.10:
Conducting strip searches in CCTV cells is not precluded but a CCTV cell should not be regarded as a suitable place for a strip search unless control measures are implemented to ensure that the requirements of PACE Codes of Practice, Code C, Annex A are met. If a custody officer authorises a strip search to take place in a CCTV cell, the additional measures taken to protect the detainee’s privacy and dignity should be recorded in the custody record.
The referenced section of the PACE code (pdf) is about 'The conduct of strip searches' and includes:
11. When strip searches are conducted:
(a) a police officer carrying out a strip search must be the same sex as the detainee;
(b) the search shall take place in an area where the detainee cannot be seen by anyone who does not need to be present, nor by a member of the opposite sex except an appropriate adult who has been specifically requested by the detainee; [Emphasis added]
(c) except in cases of urgency, where there is risk of serious harm to the detainee or to others, whenever a strip search involves exposure of intimate body parts, there must be at least two people present other than the detainee, and if the search is of a juvenile or mentally disordered or otherwise mentally vulnerable person, one of the people must be the appropriate adult. [...]
The Home Office is more definitive in its Police Buildings Design Guide - Custody (pdf) which includes the following requirement:
PD1.04.02.09 Search / Evidence – Search Room
[Suite size dependant or Preferred]This room is used by the custody staff to search the detainee. This facility will need panic alarm coverage for security and / or safety reasons. No CCTV coverage. Walk through metal detectors are not recommend; hand held units, used correctly are recommended. [Emphasis added]
(Note that the Metropolitan Police Service follow the Home Office guidance. Criteria 1.53 for using CCTV in cells in the Met's Custody Standard Operating Procedure (pdf) is 'A CCTV equipped cell must never be used for a consultation between a detainee and their legal representative or for conducting a strip search.' [Emphasis in the original])
Feeling safer when stripping in front of a CCTV?
The PACE codes are clear that when a strip search occurs, 'the detainee cannot be seen by anyone who does not need to be present, nor by a member of the opposite sex. What about the recorded CCTV images? There may be requirements for persons not present to view the images, when there is a complaint for instance, but is the rule about not viewing the stripped detainees by members of the opposite sex enforced by the BTP for the recorded images? Unlikely as the BTP do not keep a record of the number of times recorded CCTV images are accessed or viewed, nor the sex of officers having access to the footage or their rank. (Such 'Information [is] not held' responded the BTP to my request.)
When discussing this issue of the BTP filming strip searches, several friends suggested that having a video record of a police strip search is a good thing. As a privacy advocate put it, 'one of the key aspects is protection of the suspect, rather than protection of the police.' It is evidence in case of wrongful behaviour. There are several issues with this argument.
Firstly, stripping in front of a camera does not respect the privacy or the dignity of the detainee who is obviously in a vulnerable situation (and innocent until having been charged and convicted).
Secondly, an audio recording would serve a similar purpose with much greater respect for all involved. (This is a very different situation than the recently exposed audio and video recording in taxis).
Lastly, unfortunately CCTV cameras are occasionally malfunctioning or the recording goes missing, sometimes following complaints about police behaviour. There are several well-known cases of missing CCTV footage. A more minor one I am particularly familiar with, is the CCTV footage of my unlawful arrest at Southwark tube station. I eventually found in my IPCC case file that the BTP did obtain the recorded CCTV footage of the platform from Transport for London. However, in a response to a subject access request, the BTP wrote to me that they don't have this CCTV footage, they may have given it to the Met (who claim they never had it) and anyway they have no record of what they did with it: 'I could not locate any information regarding the holding and retention of the footage. The retention period for holding data is usually 6 years.'
To have a draft policy that says one thing and then doing the other precludes any proper debate on this important societal issue. Do we really want to be filmed when stripping in a BTP custody suite, or anywhere else?
Update 2011-12-04 The BTP in their response explained that they don't breach any guideline 'as long as the recording of the [strip] search is necessary and proportionate'. I've been wondering how and when this is determined, so I've just asked in another Freedom of Information request about the 'Criteria for the determination of necessity and proportionality of the CCTV recording of strip searches' . A response should be posted at that same link by 2012-01-05.
Update 2012-01-03 A further response has been received. Follow-up at No guidelines or training for BTP officers about CCTV recording of strip searches.
The next meeting of the Metropolitan Police Authority (MPA) full Authority on 2011-11-24 starting at 10am promises to be interesting for those concerned by the criminalisation of innocents and of peaceful protest. The agenda has just been published and it features a question about police provocations at a peaceful march and a report addressing how the Met seeks to address the key findings of the review ‘Protecting the innocent’ – The London Experience of DNA and the national DNA database. Attendance is open to the public.
Following the police provocations at the peaceful silent procession to Downing Street in remembrance of those who dies in custody (see my earlier report at Police provocations at peaceful march against deaths in custody), Samantha Rigg-David will be asking to the MPA the following question on behalf of the United Families and Friends Campaign (UFFC):
‘The UFFC, a coalition of bereaved families, has been hosting an annual procession for 13 years in remembrance of loved ones who have died in custody or state care. The stewarded march, led by family members, entails a silent procession from Trafalgar Square to Downing Street. Following this, family members share experiences of the loss of their loved ones and then deliver a letter to Downing Street containing a list of recommendations for consideration by the Prime Minister. Traffic is often temporarily blocked in the process for a short time. Although it is an emotional event, the march has always passed peacefully and typically disperses around 4pm. The march provides a rare opportunity for grieving families to come together to highlight concerns to those in authority and also provide mutual support. Policing of the march in the past has appeared to be proportionate both in response to the sensitive nature of the event and also in recognition that it does not pose a threat to public order.
This year, at about 3pm, after delivering the letter to Downing Street family members and friends found themselves subject to aggressive and degrading treatment at the hands of a large deployment of what we believe were TSG officers [The 'U' collar number clearly visible in this photograph by Guy Smallman, for instance, confirms their deployment]. In addition to this a helicopter was flying overhead and we also noticed a FIT team had been deployed. The sudden deployment of around 100 officers, in addition to the large number of uniformed officers already present, and the ensuing treatment caused panic, physical injury and distress to the remaining marchers. Attempts were made by stewards, legal observers and marchers to talk to the police, informing them this move was provocative and appealing for restraint, but this was ignored. The officers performed a ‘sweep’ of the road, as if clearing it of rubbish, pushing aside and trampling on anybody in their way. We believe there was only a small crowd of marchers in the road at this point with around half the march on the opposite side of the road. The actions of the police caused marchers on the opposite side of the road to move forward to join those being swept in an attempt to provide some sort of safety in numbers against this attack.
Many of those that the police ‘swept’ were vulnerable bereaved relatives including parents, grandparents and children. At one point officers picked up the mother of someone who had died in custody by her arms and legs and deposited her on the road like a ‘sack of potatoes’. Children were screaming in fear. After this the police began to form a kettle, which caused widespread intimidation and forced marchers to disperse in an undignified and cajoled manner without any proper closure to the march. Those who attended the march have told me they feel traumatised by the experience. We understand it is not the role of the MPA to investigate the actions of individual officers on the march however it does hold responsibility for holding the police to account over operational and tactical matters.
We believe it was both entirely unwarranted and unnecessarily confrontational to deploy these officers and wish the MPA to fulfil its public duty by assisting us in scrutinising how and why this decision was taken. I wish to attend the full authority meeting to raise this question in person.
We are fully cognisant of the climate of the times, in terms of heightened public interest around deaths in custody and levels of tension around public order policing. However, we believe this calls for intelligent and sensitive policing. We do not accept that the response of the police was justifiable, proportionate or in accordance with ACPO guidance around keeping the peace’.
Also on the agenda is the Metropolitan Police Service's response to the Civil Liberties Panel review ‘Protecting the innocent’ – The London Experience of DNA and the national DNA. When the Civil Liberties Panel published its recommendations in June, it gave three months to the Met to respond with a timetable for implementation (see The London experience of DNA and the National DNA Database). The Met's response will be presented to be reviewed by the Civil Liberties Panel.
MPS response to the Civil Liberties Panel review ‘Protecting the innocent’ – The London Experience of DNA and the national DNA database
Report: 7
Date: 24 November 2011
By: Director of Forensic Services on behalf of the CommissionerSummary
This report sets out the MPS response to the MPA Civil Liberties Panel review: “Protecting the Innocent”. The MPS accepts all the recommendations made within the review and seeks to address the key findings of the Panel and the concerns of London citizens as expressed within the report. The key focus of the Panels’ report is communication and engagement with the communities and therefore trust and confidence in policing London and the use, by the MPS, of DNA profiling to solve crime, strike the right balance between the liberty of individuals and protecting society.
A. Recommendations
That Members note the MPS response to their recommendations as set out in the report “Protecting the innocent”: The London experience of DNA and the National DNA Database”.
B. Supporting information
1. The MPS actively contributed to the MPS Civil Liberties Panel review into the London experience of DNA profiling and the National DNA Database and agrees with its key findings that:
- DNA profiling is critical to the successful investigation of crime particularly in serious violence and sexually motivated crime where the perpetrator is a stranger to the victim.
- The Protection of Freedoms Bill addresses the judgement in the European Court of Human Rights in the case of S and Marper where the court found against the UK for the blanket and indiscriminate retention of DNA profiles but the Bill will allow for a speculative search of all those arrested for a recordable criminal offence.
- The MPS need to have robust procedures for the taking, examination, storage and deletion of DNA profiles and provide reassurance that these procedures are being adhered to.
- There needs to be much more communication and engagement with the citizens of London to ensure that use and impact of DNA profiling is understood and that there are the necessary safeguards in place to protecting privacy and civil liberties.
2. The title of the report “Protecting the innocent” could be taken to refer to those who are arrested and not convicted but have their DNA profile retained indefinitely under current legislation. It could equally refer to all of the individuals who are suspected of a crime but found to be eliminated as a suspect because their DNA profile does not match the DNA found at the crime scene or on the victim. It is the power of DNA profiling to exclude that provides one of the strongest safeguards against false accusation or wrongful conviction in the criminal justices system. The recommendations made in the report provide a basis for the MPS to further strengthen its processes and inform the citizens of London, so that the balance between an individuals civil rights and the need for society to identify criminals and bring them before the courts. In the following section we have addressed each recommendation providing a response on the action to be taken by the MPS to implement the recommendation. All of the recommendations of the Civil Liberties Panel are accepted by the MPS.
3. On the timing and timescales for implementation where there are simple process changes, such as not making a confirmatory DNA sample the MPS will implement as soon as practicable. For some of the wider changes and in particular community engagement, we see merit in timing communication and change to coincide with the implementation of the Protection of Freedoms Bill. This will mean that positive messages about the management and use of DNA profiling by the MPS can be reinforced alongside the wider changes to destroy DNA samples, limit DNA retention of unconvicted individuals and acknowledge the introduction of the role of the Biometrics Commission.
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 (full recommendation not recorded).
- Why their DNA has been taken and what this means for them:
- for those arrested for a recordable offence
- for those examined under Schedule 7 of the Terrorism Act 2000
- for those who volunteer to provide a DNA sample
- 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).
[text in italics added from the original Recommendation 1. Emphasis added.]
Recommendation 5: [section 3.6 of the report] - In relation to the management of DNA within MPS custody suites, the MPS should: a) Agree a clear process outlining how and when DNA samples are to be taken, processed and retained within custody. b) Train all officers and staff responsible for taking a DNA sample to ensure the procedure is undertaken correctly. c) 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.
[text in italics added from the original Recommendation 5]
4. We have taken the two recommendations together as they address the information to be provided in MPS Custody Suites and the process of DNA sampling for individuals under Criminal Law. We have produced draft pamphlet and posters that address the specific points made in the recommendations for the different groups of individuals who will be asked by the police to provide a DNA sample i.e.
- Individuals sampled under PACE - arrested for a recordable offence
- Individuals examined under Schedule 7 Terrorism Act 2012
- Individuals sampled as volunteers for the purpose of elimination
The draft pamphlet and posters are shown at Appendices A, B and C.
5. We have produced a revised process for DNA sampling in custody that incorporates the detailed points made in recommendations 1 and 5 and recommendation 6 that is dealt with later in the report. These processes will be promulgated through the MPS Aware system and will be published on the MPS internet site. All police officers and police staff who undertake DNA sampling will undergo training using these processes. We anticipate that, subject to the further consultation on the content and delivery of the training in the MPS, that the process will be implemented and the training completed by March 2012.
6. With regard to audit the central MPS DNA Services Unit monitors overall compliance with the procedures by providing a quality assurance function and generating management information for use by Borough Commanders and Territorial Policing HQ to ensure compliance with procedures and legal requirements. The management information that is provided on a monthly basis includes; the current performance of MPS Boroughs in DNA sampling from January - August July 2011 is given at Appendix D. In addition to providing this information the process on Boroughs, including the storage of DNA samples, are audited by the Borough Forensic Manager (BFM) and Crime Scene Manager (CSM) at quarterly intervals. The MPS also respond to HMIC Inspections.
7. As well as providing a pamphlet and written procedures two draft posters have been produced in response to the request by the Civil Liberties Panel; “Your DNA and What It Means to You” and “The DNA Sampling Process in Custody”. These will be the subject of further consultation within the MPS and with MPA members.
Recommendation 2: [section 3.4 of the report] - The MPS should demonstrate through their community engagement work, how they will raise understanding of, and public confidence in, the use of DNA in policing.
8. The MPS Diversity and Citizen Focus Group and DNA Services Unit will work collaboratively to engage with communities in London to raise awareness on DNA sampling processes and the use of DNA in policing. It is important that such engagement dispels perceived myths the public may have as to what actually the police can do with a persons DNA, who has access to the DNA profile and what it actually means to an individual to have their profile on the National DNA Database. Particular concerns to the public are the disproportionate representation of some groups and communities on the National DNA Database but greater communication and engagement with citizens of London will aim to address these concerns and develop greater understanding of when and why DNA is taken and that the ethnic make up of the DNA Database is a product of the Criminal Justice System and therefore not disproportional in its own right.
9. It is anticipated this community engagement will be delivered via a number of focus groups, held in various locations throughout London, where true representation of the local community is encouraged. In addition to this Jeanette Arnold has also proposed facilitating a question and answer session with prominent community leaders representing minority groups and communities in London. The community engagement program will be undertaken in 2012.
10. Engagement and communication with the citizens of London is critical to ensuring trust and confidence in the MPS. DNA profiling has advanced faster than any other forensic science discipline and will continue to advance rapidly, for example, the introduction of rapid DNA profiling in the Custody Suites and more sensitive and discriminating techniques will potentially raise public concerns. It is crucial that this engagement and communication continues and the public are kept informed of advancement in DNA technology and the significance of DNA and the DNA database in helping to solve crime.
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.
11. It is MPS policy and a requirement of the Mental Health Act 1983 Code of Practice that a police station should only be used as a Place of Safety on an exceptional basis. A police station may be used where the detainee’s behaviour poses an unmanageably high risk to other patients, staff or users of a healthcare setting. On the very rare occasions where a police station is used, the MHA code places clear responsibilities upon health and social care agencies. MPS policy and procedures including the revised procedures referred to in MPS ‘Operational guidance for police officers and staff responding to incidents involving someone with a mental illness 2010’ make it clear that under no circumstances should a DNA sample be taken from individuals who are detained solely at a police station as a result of the power under Section 136 unless where a person exhibiting signs of mental illness sufficient to justify use of the Section 136 power is also liable to arrest for another matter, they should be arrested under both provisions. In such a circumstance a DNA sample can be taken if the arrest for the criminal matter is for a recordable offence.
12. As an additional safeguard the DNA Services Unit provides quality assurance such that if a sample was taken purely for the detention at a police station under Section 136 Mental Health Act then it would not be forwarded for processing. In 2010-11 and 2011-12 to date, there have been no instances where a DNA sample has been received from an individual who was detained purely under Section 136 of the Mental Health Act 1983.
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.
13. As part of the review of MPS DNA procedures the DNA Services Unit is required to undertake an EIA. This will involve the engagement with various communities within London, identifying any disproportionality on DNA sampling, addressing any issues identified in an effective manner. The Equality and Human Rights Council (EHRC) dictates regular review of this assessment. It is anticipated this EIA will be completed by January 2012. The MPS recognises that there is a clear overlap in responding to recommendations 2 and 4.
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.
14. The rationale for taking a confirmatory DNA sample has its origins in managing the risk of relying on a previous sampling process where there was no quality assurance as currently provided by the DNA Services Unit. The MPS introduced central management and quality control of the DNA sampling process much later than other police forces. In discussions with the CPS and to facilitate the provisions of evidence the taking of a confirmatory DNA sample was introduced. There are, however, recent changes in the criminal justice system and in particular the introduction by the MPS of Streamline Forensic Reporting (SFR). Under this process the provision of DNA matches and evidence is tightly managed by forensic case managers and the process allows for challenges to the forensic evidence to be identified and dealt with early in the criminal justice process, reducing the risk of discontinuance at court. The SFR will be rolled out across the MPS to deal with the majority of DNA matches in such a way that risk of challenge will be minimised. The MPS will, therefore, in consultation with the CPS change its policy to not require a confirmatory analysis for DNA matches produced by the National DNA Database. It is anticipated that this change will take effect on 1st April 2012.
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.
15. This recommendation is a national requirement, the work overseen by the NDNAD Strategy Board in consultation with Police Forces including the MPS and as part of the Privacy Impact Assessment of the National DNA Database, the Strategy Board will be taking the following measures to enhance the security and privacy of DNA information used on the NDNAD.
- Changing the DNA sampling kit in order to limit the critical information held by Forensic Service Providers (FSP’s). Names will no longer be passed to the FSPs for newly sampled individuals from December 2011.
- FSPs are adding additional steps to decouple the DNA raw data file with the sample. This will be by implementing a processing identifier within their processes so that there is no link between the original sample identifier barcode to the DNA raw data. All FSPs are aiming to have completed this by the end of the March 2012.
There will be an independent audit to provide the Strategy Board and MPS with reassurance that the processes in operation within the FSPs are compliant with the Data Protection Act.
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.
16. The MPS require volunteer samples to be taken as part of a criminal investigation to eliminate individuals from that investigation, for example the householder and victim of a domestic burglary, and are therefore important to effective progressing of an investigation. The MPS agree that the timely destruction of these samples and associated profiles are a requirement, and appreciates the possible human rights issues involved in retaining the samples and profiles longer than required. Historically and due to the way in which these samples were submitted for profiling i.e. no central collection or recording of the samples prior to submission, together with a difficulty in ascertaining when a case is concluded, most of these samples have been retained within the forensic laboratories after profiling. The MPS have devised a mechanism whereby the MPS DNA Services Unit will routinely be sent a list of volunteer elimination profiles from all contracted forensic service providers. All samples and extracts that have yielded a DNA profile will be destroyed immediately and any un-profiled DNA kits will be destroyed 3 months after the case has concluded.
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.
17. The Protection of Freedoms Bill is yet to complete its passage through Parliament so the full financial implications are not yet clear. The MPS has made representations to the Home Office and Ministers to adopt a retention regime for DNA profiles that can be managed through the national police systems and databases (PNC PND), (IDENT1 and NDNAD) so that costs to police forces of administering a retention regime are kept to a minimum. The current governments’ proposals are, however, complex and will require major changes to accommodate all of the possible outcomes from an arrest for a recordable offence. They also include a determination by the Biometrics Commissioner for those individuals arrested for a recordable offence that is a qualifying offence but is not proceeded with to charge i.e. No Further Action (NFA). Appendix E gives a schematic representation of the retention regime under the Protection of Freedoms Bill and Appendix F gives an approximation of some financial costs to the MPS to implement some of the provisions of the Protections of Freedoms Bill as it currently stands.
Based on the provisions as they currently stand after the second reading in the Commons the main areas of concern are:-
- Annonymisation [sic] of raw data files as opposed to the deletion of the same;
- CPIA provisions in respect of deletion and destruction of elimination and evidential samples and profiles within casework for use in court proceedings;
- Automation of PNC files to enable deletion of DNA profiles;
- The position of the police service at the commencement of the proposed legislation.
C. Other organisational and community implications
Equality and Diversity Impact
1. The report published by the Civil Liberties Panel for the MPA focuses on equality and diversity issues for citizens of London. The MPS response has looked to address the issues highlighted within “Protecting the innocent” as detailed in a number of the recommendations particularly Recommendations 2 and 4.
Consideration of Met Forward
2. In consideration of the three strategic outcomes of Met Forward, tackling the issues that matter most to Londoners: fighting crime and reducing criminality; increasing confidence in policing; and giving us better value for money. This report seeks to address each of them individually within our response to each of the recommendations.
Financial Implications
3. There are direct financial implications as a result of this paper, such as the costs to the MPS for the provision of posters in Custody Suites and a pamphlet to be given to individuals taken into Custody and who will have a DNA sample taken Recommendations 1, 5 and 6. A further cost will be the outcome of training given to police officers both for the implementation of the revised DNA sampling processes and retention and deletion of DNA profiles under the Protection of Freedoms Bill.
4. Details of budget savings (Recommendation 6) and the impact upon the MPS as a result of implementing the provisions within the Protection of Freedoms Bill (Recommendation 9) are referred to in the body of this report.
5. For consideration in respect of this report both in terms of the immediate and ongoing costs is whether they can be met out of existing police budgets. The Protection of Freedoms Bill will have a considerable financial impact on the MPS which accounts for a fifth of all profiles on the National DNA database. The exact cost implications are unknown at this time until the Bill passes through Parliament and receives Royal Assent, believed to be around summer 2012.
Legal Implications
6. There are no direct legal implications arising from this report which is presented for information only.
7. The Protection of Freedoms Bill will in future contain a revised framework for the retention and destruction of fingerprints and DNA samples and profile, with the aim to strike a balance between public protection and safeguarding civil liberties.
Environmental Implications
8. There are no known direct environmental implications contained within this report.
9. Following implementation of the Protection of Freedoms Bill DNA samples will no longer be retained for longer than 6 months. Currently DNA samples are held indefinitely. The impact of this upon the environment is considerable since they are held in freezers, following commencement of legislation there will be a lesser environmental impact as there will be no requirement for long-term freezer storage.
Risk (including Health and Safety) Implications
10. There are no Health and Safety implications as a result of this report.
D. Background papers
None
E. Contact details
Report authors: Gary Pugh, Director of Forensic Services, MPS
Bootnote The man who was arrested at the UFFC march against deaths in custody was not DNA sampled. When he was transported to the custody suite at the back of a van, he was handcuffed in the back so could not sit properly and was not made to wear a seatbelt. I've asked details about the Safe transport of detainees on arrest. The custody suite at Marylebone police station where he was held was opened just for the occasion; the officer at the desk of the station didn't know the custody suite had been opened that day, the last time he remembered it being opened was for the students demonstrations. It is unclear whether this custody suite is visited by Independent Custody Visitors (ICV). Protocol 7 of Appendix G of the ICV handbook explains that the police should 'inform [the local ICV] panels promptly of any intended changes, closures or additions to custody facilities', however the published annual reports of the Westminster ICV panel do not mention the Marylebone station's custody suite. I've asked details about the Availability of custody suites & ICV visits.
GeneWatch UK has published an amazing analysis of the latest data on the National DNA Database released by the Home Office in September. In just five pages (including one page of references), the DNA database: analysis of offending figures (pdf) briefing debunks not only the misleading comments made following the release of the Home Office data, but also the misunderstanding of the individual cases mentioned to justify retention when they offer no such support. If you have the time to read only one document on DNA retention, this is one not to miss. Here are a few excerpts:
In September 2011, new data was released by the Home Office regarding the likelihood of future offending by persons who have been arrested for the first time. These figures have been used by critics of the Protection of Freedoms Bill to claim that “every year, 23,000 people, who under Labour’s system would be on a DNA database will, under government plans go on to commit further offences” and that this will allow 23,000 people to become victims of crime in the future. This claim is incorrect because it fails to take account of the limited role of the DNA database in solving crimes.
[...]
Using the higher figure of 36,000 persons a year estimated to be rearrested and sanctioned for a recordable offence following a first arrest with no sanction, it is possible to estimate how many of these crimes might have been solved using individuals’ DNA profiles, were they to be retained on the National DNA Database.
[...]
This amounts to about 28 convictions a year (including 8 for ‘Scottish List’ offences), because only about half of DNA detections lead to a conviction. Of these estimated 28 convictions a year, the majority would be delayed not lost since any future arrest of the individual would lead to a match being made between their DNA profile and the relevant crime scene DNA profile (which would be stored indefinitely if it did not match an individual’s profile when it was loaded onto the database).
[...]
Numerous individual cases have been cited in support of retaining innocent individuals’ DNA on the National DNA Database. However, closer inspection of these cases has repeatedly revealed that most would not be affected by proposals in the Bill. Over the ten year period since legislation was introduced to retain innocent people’s DNA profiles there have been no examples of murder cases cited in parliament or the press that would have remained unsolved had innocent people’s DNA profiles been taken off the database.
[...]
These cases suggest that “widening the net” to retain innocent individuals’ DNA profiles on the DNA database has been the wrong priority compared to taking DNA from known suspects for a crime.
Here's the summary of the DNA retention – Analysis of arrest-to-conviction data submission from the Home Office Economics and Resource Analysis Group to the Parliamentary Under-Secretary of State for Crime Prevention that is analysed by GeneWatch UK:
[The Economics and Resource Analysis Group] analysis of arrest-to-conviction data obtained from the PNC indicates that the time taken for the risk of conviction of individuals with no previous convictions who are arrested but not sanctioned to fall to the level observed in the general population is approximately three years. This assumes that DNA profiles are retained on arrest for all offences. If the scope of the provisions is restricted to ‘Scottish list’ offences with retention on arrest, the time taken for conviction risk to fall to the population level is 3¾ years. If scope is restricted to ‘Scottish list’ offences with retention only on charge, the time taken is 4¾ years (although this result is subject to significant uncertainty due to the small sample size).
We have also made provisional estimates of the outcomes of profile retention under each regime, assuming retention for three years. These suggest that restricting the scope of the retention provisions (from all offences on arrest to ‘Scottish list’ on charge) significantly reduces the number of ‘innocent’ profiles retained. The proportion of those profiles expected to receive a sanction before the end of the retention period does not change as scope is restricted, while the proportion of sanctions that are received which are serious (as defined by the ‘Scottish list’) rises slightly in absolute terms. Thus, the Scottish model appears to be effective in offering protection to individuals who are arrested but not sanctioned for any offence. The extent to which it is effective in ensuring that only the profiles of more ‘serious’ potential offenders are retained is debatable.
The Protection of Freedoms Bill is now in the Lords. For more details see:
Every year, the United Families and Friends Campaign (UFFC), a coalition of families and friends of those who have died in the custody of police, prison and psychiatric hospital officials, organises a march to Downing Street. The coalition published for the march an incomplete list of 3,180 individuals who have died in custody in the UK since 1969 including 225 in the past year (pdf).The march consists of a peaceful silent procession to Downing Street followed by speeches from members of families having lost a loved one in the hands of the state. This year, the thirteenth year it happens, was no different except for the increasing policing provocations.
The march went from Trafalgar Square to Downing Street via the South side of Whitehall, blocking the traffic on that side. There was still traffic driving through the North side. For the speeches we stopped on the South side in front of Downing Street. The police had formed a cordon to protect demonstrators from the traffic that kept flowing on the North side. Even though demonstrators were peaceful and trying to listen to the speeches, a police helicopter remained above for some time. Also during the speeches, the inspector in charge of this cordon ordered his constables to make an unnecessary step forward. Close to the end of the speeches, during the reading of the letter from the families to the Prime Minister, the inspector in charge showed his lack of respect by ordering his constables to make another unnecessary step forward slightly pushing people just when demands about how to improve policing to reduce deaths in custody were read out.
When representatives of the families went to the gate of Downing Street to symbolically attach a letter to the gate (as no one inside Downing Street is willing to accept their letter - as had already happened the previous year) police reinforcements arrived. Many of the other demonstrators than family members of those who died in custody had remained on the South side of Whitehall. Eventually most people went back to the opposite side of the road, and moved the pavement so that Whitehall could be completely re-opened to the traffic. When many more police reinforcements arrived outside the gates for no apparent reason, the many demonstrators who were by now on the pavement on the South side became obviously concerned and crossed Whitehall to support the families. More officers arrived and started to push people back towards the South side. Demonstrators sat on the road to peacefully prevent this further police provocation. Officers then started a kettle. Eventually everyone regrouped on the pavement; everyone except one man who had been arrested (and eventually released alive without charge from Marylebone police station -which custody suite had been opened just for the occasion- later in the evening).
The coalition is building a network for collective action to end deaths in custody and believes:
- That failure of State officials to ensure the basic right to life is made worse by the failure of the State to prosecute those responsible for custody deaths.
- That failure to prosecute those responsible for deaths in custody sends the message that the State can act with impunity.
It has a list of eight practical demands:
- Replacement of the Independent Police Complaints Commission (IPCC) to ensure open robust transparent and thorough investigations into police deaths in custody by a ‘truly’ independent body from the very outset of the death.
- Officers and officials directly involved in custody deaths be suspended until investigations are completed.
- Immediate interviewing of officers and all officials concerned with the death.
- Officers and officials should never be allowed to ‘collude’ over their evidence and statements of fact.
- Full disclosure of information to the families.
- Prosecutions should automatically follow ‘unlawful killing’ verdicts at Inquests and officers responsible for those deaths should face criminal charges, even if retired.
- Implementation of police body cameras and cameras in all police vehicles in the interests of both the officers and the public.
- The end of means testing of families for legal aid. There is a lack of funds for family legal representation at Inquests whilst officers and NHS staff get full legal representation from the public purse – this is unbalanced.
Bootnote See my earlier post, Deaths in custody, for links to reports and statistics on deaths in custody.
Update 2011-10-30 (and 2011-12-16)
Update 2011-10-31
Update 2011-11-02
Update 2011-11-04
Update 2011-11-05
Public
meeting on black deaths in custody
Date: 6.30 – 9.00pm on Wednesday 2011-10-26 at the LSE
Details and free registration: Black Mental Health
Speakers include:
2011 Annual march
against custody deaths
Date: 12:30pm on Saturday 2011-10-29 at Trafalgar Square and then to Downing Street
Details: United families and friends campaign, the campaign to end deaths and abuses in custody
The last conviction of a police officer following a death in custody was in 1971. At last year's march, the police refused to let the families deliver a letter to the Prime Minister
The following family campaigns will be attending:
4WardEver UK has detailed information on many of those who died and suffered abuse while in custody.
Visiting the custody
suites of police stations
In addition to supporting family campaigns, another action you can take is to volunteer as an Independent Custody Visitor (ICV). After joining an ICV panel in the borough where you live or work, your role is to make unannounced visits, with another ICV, to the police stations in the borough. During the visits you have chats with all the detainees that accept to see you (in their cells) and ensure that they have been informed of their rights, given the opportunity to talk to a solicitor, let someone know they are detained and have been treated fairly while in the custody suite. You can, and should, also check that the custody suite's CCTVs work, the showers have hot water, there's food available, etc. Any issue raised after a visit is answered by a senior police officer at the next panel meeting and further followed up if needs be. This scheme is statutory and managed by the local police authority, in London by the Metropolitan Police Authority. A limit of this scheme is that its remit is to look at the welfare of detainees only when they are in the custody suite. Having been an ICV for a year, I recommend readers consider applying to become independent custody visitors.
Statistical analysis
of all recorded deaths in state custody from 2000 to 2010
The Independent Advisory Panel on Deaths in Custody has published a statistical analysis of all recorded deaths in state custody between 1 January 2000 and 31 December 2011, broken down by ethnicity, gender, age and cause of death.
Although, the rest of this post focuses on deaths in police custody, this report covers deaths of persons detained in all types of state custody: in prisons, young offender institutes, police custody, immigration removal centres, approved premises, secure children's homes, secure training centres and also in hospitals when patients died while detained under the Mental Health Act. The report found that:
Update The Independent Police Complaint Commission also published a report Deaths in custody study last August. The research used completed investigations to gather data on all 333 deaths in or following police custody which occurred between 1998/99 and 2008/09.
Following the the European Court of Human Rights (ECtHR) decision in S. and Marper 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, [...] constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society', there has been two bills (the latest effort is in the Protection of Freedoms bill) and a case recently went to the Supreme Court, but the police still routinely hold on to DNA, fingerprints, palm prints, photographs and associated records of innocents.
On Tuesday the ECtHR will be publishing (on its website) its judgment in another case concerning the ineffective retention of the DNA and associated records of innocents:
Goggins and Others v. United Kingdom (nos. 30089/04, 14449/06, 24968/07, 13870/08, 36363/08, 23499/09, 43852/09 and 64027/09)
The applicants, Ciaron Goggins, John Day, Michael Jackson, Christopher Scott, Guled Michael, Carol Castley-Turner, Darren Coates and Jonathan Bennetts, are eight British nationals who were born in 1961, 1964, 1953, 1952, 1977, 1950, 1971 and 1971 respectively and live in the United Kingdom. Relying in particular on Article 8 (right to respect for private and family life), all the applicants complain about the collection and retention of their DNA samples, fingerprints and associated data despite either being acquitted of criminal charges brought against them or having criminal proceedings against them dropped.
An intriguing aspect of this case is that so little is currently publicly available about it. Searching the confusing ECtHR collections, the excellent British and Irish Legal Information Institute databases, and more general search engines currently returns only the press release announcing this week's forthcoming judgment. Hopefully, the judgment will not only address the substantive matter but also shed some light as to why so little information is available (or indexed) when this case must have gone on for several years winding its way through the UK and then European court systems.
Bootnote: Hat tip to reader CR for pointing out this case.
Update: The judgement has been published. The court unanimously decided 'it is appropriate to strike the cases out of the list in so far as they concern complaints related to the collection and retention of DNA samples, fingerprints and associated data and the retention of PNC records, without prejudice to the Court’s power to decide, pursuant to Article 37 § 2, to restore the applications to the list should the respondent State fail to enact the draft legislation [the Protection of Freedoms Bill] currently before Parliament.'.
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.
Ayesha Kazmi speaks to Pennie Quinton about her case and stop and search.
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:
- for those arrested for a recordable offence
- for those examined under Schedule 7 of the Terrorism Act 2000
- for those who volunteer to provide a DNA sample
- 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]
The MPS should demonstrate through their community engagement work, how they will raise understanding of, and public confidence in, the use of DNA in policing.
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.
Is this disappearance exceptional? Is it a common occurrence for CCTV footage that may expose police misstatements? Or is it routine? I do not hold this information.
The Supreme Court ruled (press release & judgement pdfs), by a majority, that the guidelines issued by the Association of Chief Police Officers (ACPO), which provide that Police National Computer (PNC), fingerprints and DNA records should be destroyed only in exceptional cases, are unlawful because they are incompatible with the right to respect for private and family life. However, as Parliament is currently reviewing the Protection of Freedoms Bill, the Supreme Court decided 'it is not appropriate to make an order requiring a change in the legislative scheme within a specific period or an order requiring destruction of data'.
In DNA retention judgment won't see discriminatory policy destroyed, Anna Fairclough, legal officer at Liberty, sums up the impact of this ruling for all the innocents whose DNA and associated records are retained by the police: 'So, although the declaration of illegality is welcome, the judgment will make little practical difference for the hundreds of thousands of people whose DNA is – admittedly – unlawfully retained, who will have to wait even longer to compel the police to destroy it.'
While Parliament scrutinises the bill, the court remarked that 'It is, however, open to ACPO to reconsider and amend the guidelines in the interim'. In its latest communication (pdf) to the Committee of Ministers monitoring the implementation of the S. & Marper ruling, the government explained that although 'it would be inappropriate for the police to start removing the profiles of unconvicted people from the National DNA Database at this stage [...] Nonetheless, given the broad political consensus within the UK Parliament around the Government’s proposal to destroy all biological DNA samples within six months of being taken, the Government has asked the police to explore the possibility of making a start to the destruction of samples before the passing into law of the Protection of Freedoms Bill.' [emphasis added] The government has suggested this interim destruction of DNA samples for close to a year, so even that is unlikely to happen until the bill is finalised.
The Protection of Freedoms Bill includes clauses about the deletion of fingerprints, and DNA samples and profiles, however amendments are still required to ensure that PNC records and photographs of innocent people will be deleted as well.
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.
The Home Office has eventually published the Protection of Freedoms Bill. It is to be welcomed as it includes measures restoring some of our rights, however these positive measures do not signal a radical change. An innocent who has been arrested unlawfully will still be criminalised unless the bill is substantially improved. He will soon be able to reclaim his DNA, but not his photographs or his Police National Computer (PNC) record. Anyone suspected of terrorism will be subject to exceptional counter-terrorism measures not just to criminal law; national security determinations, which have to remain secret by definition, allow further regimes of exception.
Getting the police to accept that one's case is exceptional under the current exceptional procedure is fraught with difficulty. The few who have succeeded, have had their PNC record as well as their DNA profile deleted, and their DNA samples and fingerprints destroyed. It is essential that the bill is amended to keep deleting PNC record when DNA profiles are deleted. Having a PNC record can affect employment prospects in some jobs requiring vetting, and travel to some countries such as the USA. Having a PNC record with a mention that your DNA has been taken is enough for some police officers to consider you guilty. There's clearly a stigma attached to having a PNC record and innocents must not be criminalised.
Retention of photographs can also affect the life of innocents in traumatic ways. A couple of years ago, someone told me by email how his family had to eventually move as a consequence of the police retaining his mugshot and using it in id parades for local crimes. His mugshot had been taken when he was previously arrested, but the charges were eventually dropped. His mugshot was shown to the victim of a local crime who was immediately drawn to his picture. He was arrested and bailed. The victim was a neighbour who told him a few days later, 'She had no idea she had picked me out of the faces she just went for a face she had seen somewhere; anyway the matter was resolved and there was no further action taken.' The police refused to delete his mugshot. A few weeks later another person he knew asked him why his mugshot had been shown to her by the police when reporting a crime. Rumours spread; name calling and graffiti on his car ensued and he felt he had to move to protect his family. Hopefully this is an unusual case as one would expect id parades to be better handled, but it demonstrates that retaining mugshots of innocents can lead to criminalisation and stigma.
An individual's life who has been arrested and is innocent should not be further affected by an arrest after the police has stopped pursuing the matter. All records associated with the arrest should be deleted.
Making sense of the bill
This bill is complex and difficult to read. It covers many topics: DNA retention, CCTV / ANPR, vetting, stop and search, etc. This post mainly focuses on points of serious concerns about the DNA clauses; follow the included links for more detailed analyses of the bill.
The million of innocent individuals whose DNA is currently on the National DNA Database must be keen to learn when their records will be deleted, however an attentive reading will not provide a straight answer. An order to destroy existing relevant biometric material has to be made before the commencement of the legislation, but there's no time limit for when the destruction must to be completed by. (Until the bill becomes legislation, visit ReclaimYourDNA.)
The following comparative table of DNA profile retention periods is extracted from the table included in the bill's explanatory notes:
Occurrence Current System (E&W) Scottish System Proposed changes under the Bill ADULT – Conviction – All Crimes Indefinite Indefinite Indefinite ADULT – Non Conviction – Serious Crime Indefinite* 3 Years + possible 2-year extension(s) by Court 3 Years + possible single 2-Year extension by Court
[The bill does not appear to limit the number of extensions]
ADULT – Non Conviction – Minor Crime Indefinite* None None† UNDER 18s – Conviction – Serious Crime Indefinite Indefinite Indefinite UNDER 18s – Conviction – Minor Crime Indefinite Indefinite 1st Conviction – 5 Years (plus length of any custodial sentence);
2nd Conviction – indefiniteUNDER 18s – Non Conviction – Serious Crime Indefinite* 3 Years + possible 2-year extension(s) by Court 3 Years + possible single 2-Year extension by Court
[The bill does not appear to limit the number of extensions]UNDER 18s – Non Conviction – Minor Crime Indefinite* None None† Terrorist suspects Indefinite* Not covered (reserved matters) 3 Years plus renewable 2-year period(s) on national security grounds Biological DNA Samples Indefinite* As per destruction of profiles Within six months of sample being taken * Destruction of DNA profiles and biological samples is available under ‘exceptional circumstances’. This requires an application to the Chief Constable of the relevant police force; removal from the database is then at his/her discretion in accordance with guidelines issued by the Association of Chief Police Officers.
† In all cases, a speculative search of the DNA and fingerprint databases may be conducted before destruction.
The table clearly shows how the government followed the Scottish approach. One has to be careful in following the explanatory notes as they are not part of the bill: if the bill is not amended to clearly restrict to a single possible two-year extension the retention period for the DNA profile of an innocent who has been arrested for a serious crime, then extensions may be automatically renewed multiple times. The way stop and search authorisations under Terrorism Act 2000 have been abused in the past shows intentions can't be trusted, the text of the bill must include safeguards.
GeneWatch UK does a great job of explaining the bill in plain English on its Freedom Bill page, which also include links to its Parliamentary briefing (pdf) and to a page about What you can do. The Civil Society Advice Group's briefing explains the bill clause by clause (pdf). Other briefings include Justice (pdf), Liberty (pdf) and ARCH (pdf). Cian Murphy commented on the bill at the UK Human Rights blog, and Panopticon focuses on three issues.
Bootnote: As Privacy International's Gus Hosein pointed out in Who will remember the privacy advocates?, many of the achievements found in this bill are the result of the perseverance of privacy advocates. Support your favourite privacy organisations!
This post is a follow up on Interim situation to continue a bit longer for DNA retention about the progress made regarding the general obligations binding the UK following the unanimous ruling against it in the European Court of Human Rights (ECtHR) two years ago.
Obligation of cessation
The UK is still to put an end to the breach identified by the ECtHR, the obligation of cessation. Back in 2008, in Don't delay: Delete your DNA today, I suggested that no legislative change was necessary to comply with this obligation, a simple amendment to the Association of Chief of Police Officers (ACPO) regulations would have sufficed. The police took no such action and still retain, for an indefinite period, DNA of as many individuals - innocent and guilty alike - as they can collect.
The ECtHR ruling is binding on the UK, but not on the police forces (as confirmed in the [2010] EWHC 2225 (Admin) and [2010] NIQB 143 cases). The forces can make voluntary changes, but are otherwise bound by the House of Lords decision in the appeal of S and Marper v. the Chief Constable of South Yorkshire Police. The coalition government is considering using legislation introduced by the previous government, but still to be enacted, to progress this issue. Home Office Minister James Brokenshire announced in Parliament:
The Government are committed to adopting the protections of the Scottish model for DNA retention. In particular, we are examining whether the provisions of section 23 of the Crime and Security Act 2010 should be brought into force. This would empower the National DNA Database Strategy Board to issue binding guidance to chief police officers on the types of case in which deletion would be appropriate.
We will bring forward our detailed proposals shortly.
and that section is
23 National DNA Database Strategy Board
- The Secretary of State must make arrangements for a National DNA Database Strategy Board to oversee the operation of the National DNA Database.
- The National DNA Database Strategy Board must issue guidance about the immediate destruction of DNA samples and DNA profiles which are, or may be, retained under (a) the Police and Criminal Evidence Act 1984, or (b) the Police and Criminal Evidence (Northern Ireland) Order 1989.
- The following must act in accordance with any guidance issued under this section (a) any chief officer of a police force in England and Wales; (b) the Chief Constable of the Police Service of Northern Ireland.
- The Secretary of State must publish the governance rules of the National DNA Database Strategy Board and lay a copy of the rules before Parliament.
- The National DNA Database Strategy Board must make an annual report to the Secretary of State about the exercise of its functions.
- The Secretary of State must publish the report and must lay a copy of the published report before Parliament.
- The Secretary of State may exclude from publication any part of the report if in the opinion of the Secretary of State the publication of that part would be against the interests of national security.
If the government does use this mechanism, an obvious concern is that Parliamentary scrutiny may be avoided using the overused excuse of national security. (In Interim situation to continue a bit longer for DNA retention I suggested another section that is a good candidate to be enacted, as mostly uncontroversial: section 64ZA detailing the destruction of the physical DNA samples within six months of when they are taken.)
Obligation of non-repetition
New legislation is necessary to prevent any further violations in the future; the obligation of non-repetition. The coalition government keeps repeating that it will adopt the protections of the Scottish model in its Freedom Bill - with no further additional details. How significant the planned changes to primary legislation will be is not yet known, but they will have to be sufficient to be acceptable by the Committee of Ministers when it next reviews UK's compliance with Strasbourg's rulings.
Further pressure may come from the Supreme Court as it is to hears tomorrow two cases that will be an opportunity to revisit the opinions it expressed in its decision in S and Marper in 2004 when it was still sitting in the House of Lords. The two cases are 'R (on the application of GC) (FC) (Appellant) v The Commissioner of Police of the Metropolis (Respondent)' [UKSC 2010/0173] and 'R (on the application of C) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent)' [UKSC 2010/0186] and deal with the following issue:
Issue: Whether the continued retention of the DNA, fingerprints and a photograph of GC and of the DNA, fingerprints and information on the police national computer in respect of C, violates their rights under Article 8 of the European Convention on Human Rights.
Facts: The Association of Chief Police Officers’ 2006 guidance gives Chief Officers the discretion to delete information on the police national computer (‘PNC’) and to destroy DNA and fingerprints, ‘in exceptional cases’. In S and Marper v United Kingdom (2009) 48 EHRR 50, the European Court of Human Rights held that the United Kingdom’s powers of retention of biometric samples gave rise to a disproportionate interference with Article 8 rights. The Respondent acknowledged this decision but said that until Parliament changed the law, his policy would not change. The Government has indicated an intention to change the law in this area. The Respondent continues to retain DNA, fingerprints and a photograph of GC, which were taken when he was arrested in December 2007 on suspicion of an offence in relation to which no further action was taken. The Respondent continues to retain DNA and fingerprints of C, as well as information about him on the PNC, following his arrest in March 2009 on suspicion of offences, in respect of which either no further action was taken or the prosecution offered no evidence at trial. The Divisional Court dismissed the applications for judicial review on the basis that it was bound by the decision of the House of Lords in R(Marper) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196.
The 2004 Lords ruling was a majority four-one decision. The 2008 judgement was delivered unanimously by the Grand Chamber seventeen judges of the ECtHR. The Supreme Court considers the issue it will have to decide upon complicated enough that seven Lords, two more than usual, will hear the case: Lord Phillips, Rodger, Brown, Judge, Kerr, Dyson and Lady Hale. Lords Rodger and Brown, and Lady Hale were sitting in the House of Lords in 2004 for the S and Marper ruling; Lady Hale had the dissenting opinion.
Bootnote 1: Earlier this week, the BBC in its current Justice - a citizen's guide season showed The Highest Court in the Land: Justice Makers (still available on iPlayer), a documentary about the Supreme Court with interviews of Lord Hope, Phillips, Kerr and Lady Hale.
Bootnote 2: The Supreme Court hearings are filmed, but unfortunately the videos are only 'available to mainstream broadcasters and educational establishments' for cost reason. Adam Wagner on the UK Human Rights blog asks 'It would be useful to know how much it would cost to convert all of the footage automatically. It does sound like a task which could be automated, but who knows.' If you do know and are in a position to help make this happen, please do get in touch with Adam Wagner who has implicitly volunteered to liaise with the Supreme Court on this!
Forensic Science Service (FSS), a GovCo wholly owned by the government and a key player in DNA profiling, is running out of cash and is to be wound down. Home Office minister James Brokenshire delivered this news in a written statement on Tuesday:
Despite this intervention and the commitment of the current management team, the current challenging forensics market has put the FSS back into serious financial difficulty. FSS is currently making operating losses of around £2 million per month. Its cash is due to run out as early as January next year. It is vital that we take clear and decisive action to sort this out.
The police have advised us that their spend on external forensic suppliers will continue to fall over the next few years, as forces seek to maximise efficiencies in this area. HMIC concurs with this assessment.
We have therefore decided to support the wind down of FSS, transferring or selling off as much of its operations as possible. We will work with FSS management and staff, ACPO, and other suppliers to ensure an orderly transition, but our firm ambition is that there will be no continuing state interest in a forensics provider by March 2012.
The National Police Improvement Agency, which took over the role of custodian of the National DNA Database from FSS, lists Eurofins Genetic Services, FSS, LGC Forensics, and Orchid Cellmark as forensic service providers for analysing and handling DNA samples taken from individuals on arrest. To deal with DNA recovered from crime scenes, agreements were negotiated with the same four companies plus Key Forensic Services. The contract for the supply of DNA sampling kits had been awarded to the FSS.
James Brokenshire closed his written statement by indicating, 'We want to see the UK forensic science industry operating as a genuine market, with private sector providers competing to provide innovative services at the lowest cost.' That would appear to indicate that the remaining providers will get the work that was done by the FSS, however the extract included above clearly states that the police expect to reduce their spend on external forensic suppliers. If the plan is to make these savings on DNA forensic services, this could mean either analysing fewer DNA samples and/or not using external companies in some instances.
Two hypotheses: fewer samples and avoiding external forensic suppliers
Let's look at the first hypothesis. The government has stated its intention to adopt the Scottish model. This will reduce storage cost by limiting retention, but getting rid of a few freezers should only make a modest cost reduction. What would make a much bigger difference would be not to take as many DNA samples in the first place, however current official plans are still to take DNA samples at arrest. Unless the police intend not make as many arrests, the cost of sampling and analysing DNA of arrestees should remain of the same order of magnitude. Another way to reduce cost would be to collect or analyse fewer DNA samples from crime scenes (as at 30 September, 366,755 crime scene sample profiles on the National DNA Database had been submitted by police forces in England and Wales.) That would be a really bad idea as the effectiveness of forensic DNA is directly related to how many DNA samples from crime scenes are loaded.
As for the second hypothesis, it is possible that some police forces are looking into having their own DNA forensic lab. Other forensic work done in-house has brought savings and may be considered a model to emulate:
Two police officers from, Gloucestershire, UK whose forensic examination of mobile phones saved the force around a third of a million pounds have received a prestigious award. DC Adrian Stratton and PC John Loveridge were presented with the Richard Somers Award in recognition of their work interrogating the devices. [...]
Supt Bridget Woodhall, who nominated them, said earlier: "Analysis of mobile phone data is now a key part of evidence gathering - particularly in cases involving the exchange or sale of drugs.
"Thanks to the work of these officers the monetary savings are plain to see, but there are hidden benefits such as quicker results, shorter bail dates for the more serious offences, and the potential to extract a wealth of new of intelligence."
If some DNA analysis was done in police labs, independence of the police technicians from the investigating detectives would be both essential and difficult to monitor.
The ministerial announcement leaves several questions open, none of which seems to have even been asked in the many press articles covering this news.
Location breadcrumbs left by mobile phones, along with other communication traffic data, are kept as part of a mass surveillance operation. They are collected by the mobile networks, retained for a year, and handed over to the police and other bodies on request. This is such an accepted fact of life that lack of traffic data has become suspicious. As shown in Voluntary electronic tagging, not carrying a mobile phone was considered a ground for arrest in Germany in 2007 and in France in 2008.
The mobile networks want to share this trove of personal data with more than just the police, for both security and commercial applications. Lee Epting, Director of Content Services at Vodafone, told the audience of the RSA keynote The Future of Mobile (the following extract starts at 16'26" in the mp3) how we'll be lulled into abandoning our right to privacy:
In terms of people tracking, over the next ten years, we expect growing acceptance by consumers that you can be tracked by your mobile, and increased adoption of ticketless transport systems surveillance, and financially successful location based services, and the ability to locate friends and family, for example. Moving forward, as mobile phones are used to enable ticketless travel by charging the owner when they get on or off the public transport networks, the use of the location of a personal mobile device as a reliable surrogate, if you will, for the individual is stimulating lots of new applications in areas such as healthcare, financial payment among many others. However it's not all just about mobiles, the EU is mandating the incorporation of this technology in every new car from 2012, and soon the whole vehicle fleet and hence drivers will be tracked. Not only does this allow for better emergency assistance but it also acts as a catalyst for the introduction of pervasive road pricing and the like without the need any further for tollbooths.
I want to make a comment here. Although this seems a bit daunting, it does to me as well, but it is somewhat our reality. And there are real concerns around the potential impact this will have on our right to privacy, the benefits of information sharing are still very considerable. And as we become more comfortable with sharing information, and our search histories and our locations, more relevant information will be provided more quickly and the power of innovation will actually start to shift into the public domain. And I think this is one of the key things we want to consider because just talking about the fact that we're monitored and people know where we are, what we've done is daunting, but when you consider the power when things start to shift, it could be quite a big shift. Clearly this technology has to be managed sensitively and wisely as it's rolled out more widely, but looking into 2020 we can see a world where whether we want it or not and whether we seek to avoid it or not, we're no longer just tracked by the border control when we leave or enter/exit a country but we are constantly tracked for both security and commercial applications.
If that's not the world you want, support organisations which call for an end to compulsory telecommunications data retention.
Bootnote: the German working group on data retention AK Vorrat published, in English, a FAQ explaining the current blanket data retention policy on the entire EU population's communications and the alternative, proposed by civil society, of expedited preservation and targeted collection of traffic data. See also its information page.
Terri Dowty from Action on Rights for Children (ARCH) and Dr Helen Wallace from GeneWatch UK, two exceptional campaigners on civil liberties, will be talking about children's databases and the National DNA Database (NDNAD) at a free event organised by No2ID this Monday 22nd November, 7pm in the Bertrand Russell Room, Conway Hall (25 Red Lion Square, London WC1R 4RL).
To coincide with her appearance in the film Erasing David, Terri Dowty published earlier this year a Privacy guide for parents (pdf) detailing the information collected about children from the moment they are born. Even though this document does not yet reflect the latest successes of ARCH's campaigns such as the end of ContactPoint in August or the recent promise that schools will no longer take children’s fingerprints without consent, it's worth browsing through it to fully realise the extent of data collection going on. To ensure its continued future, ARCH is building a new network of supporters. To support ARCH's work on children's civil liberties and data protection rights, join as a Supporter on its recently revamped website.
GeneWatch UK is calling everyone to write to or visit his or her MP to ask him or her to support the forthcoming Freedom Bill, which will introduce new legislation on DNA and to make sure it includes all the necessary safeguards. The coalition government promises that this bill will change the rules for DNA retention by following the Scottish approach. I explained what this means in Adopting the Scottish approach to DNA retention (all those arrested and not charged, and most of those charged but not convicted, would not have their DNA retained anymore).
The necessary safeguards GeneWatch is demanding are:
- The destruction of all DNA samples once the computerised DNA profiles needed for identification purposes have been obtained from them;
- The deletion of all police computer records and photographs when DNA and fingerprint records are deleted;
- Time limits on the retention of records from people given cautions or convictions for minor offences;
- Independent oversight of the removal of records;
- Stricter controls on how stored DNA records and samples can be used.
There's a wide consensus for the destruction of the DNA samples and such a measure could be effected immediately; see Interim situation to continue a bit longer for DNA retention for details of this and some of the options for change.
The second point is important not just as a future necessary safeguard but also as a useful reminder for those exceptional individuals who succeed in reclaiming their DNA using the current exceptional case procedure. Usually fingerprints (and palm and other prints) are destroyed at the same time as DNA samples and profile when a chief constable eventually agrees to such a request. However, the police have been lobbying to retain the associated Police National Computer (PNC) record; it is essential that this record is deleted as the PNC can be accessed by many organisations and having a PNC record may affect one's job and visa prospects among other risks. The last item, photographs, is in the experience of many innocents surprisingly difficult to get back or destroyed. Only this month a correspondent who after successfully reclaiming his DNA and subsequently specifically querying whether the police was still holding on to some pictures of him was told 'we still hold details of the incident, including photos of you, on some of our systems'. In my case the police relented to return the photographs it took of me and at my flat only after they agreed to settle, two years after they destroyed my DNA and prints. Innocents, on the occasions that they do succeed in getting off the National DNA Database, should not have to be so thorough and have to make multiple formal requests for the destruction of each and every piece of personal information that the police may have collected on them.
Time limits on the retention of DNA for minor offences and for cautions is necessary to ensure rehabilitation, otherwise it is in essence a life sentence which can affect jobs and visas prospects. The longer DNA samples are stored and profiles held, the more they are at risk of being lost or unlawfully accessed; I have compiled a list of those documented instances I could find at DNA database unauthorised use and data loss, and incorrect storing of DNA samples. Independent oversight is an obvious necessity. I suggest you discuss with your MP how it can be effective as well as independent. As for GeneWatch's demand for stricter controls on the use of DNA samples and profiles, consider that today –if you have been arrested for one of the many recordable offences– research can be done on your DNA profile or sample without needing your consent. You won't even be informed that your DNA information was used.
A briefing document, The DNA Database: Contacting your MP (pdf), supporting these demands and offering further points of information to have an informed discussion with your MP is published on GeneWatch's website. Read it and contact your MP! (If your DNA is already on the National DNA Database, for help to get off, check out the Reclaim Your DNA website.)
The United Families and Friends Campaign (UFFC), a coalition of families and friends of those who have died in the custody of police, prison and psychiatric hospital officials, organised a procession to Downing Street to give a letter to the Prime Minister. The police refused to let Samantha Rigg-David in Downing Street and they refused to accept it. The letter was taped to the gate; a copy will be sent by post; it is reproduced below. Whether the decision not to accept the letter was entirely a police operational one or a political one, it showed a shameful lack of respect to those families seeking justice and peace. The last conviction of a police officer following a death in custody was in 1971.
The Rt. Hon. David Cameron MP
Prime Minister
10 Downing Street
London30th October 2010
Dear Prime Minister
We write from the United Families and Friends Campaign (UFFC), which is a coalition of families and friends of those that have died by the hands of the police, prison officers and psychiatric nurses in suspicious circumstances. All of us have lost loved ones at the hands of the state and for the past 11 years have been seeking justice by marching to Downing Street to hand deliver a letter to the Prime Minister. This year is our 12th year and we hope this year will make a difference.
To date there has been little accountability for the controversial deaths of our loved ones. We have been betrayed by the current inquest system, which is frankly not fit for purpose and feel that our needs and quests for answers have been ignored. Collectively, we insist that you, as the Prime Minister of the new coalition government address these very grave and serious issues personally.
The deaths such as those of Christopher Alder, Roger Sylvester, Brian Douglas, Azelle Rodney, Ian Tomlinson, Jean Charles De Menezes, Joy Gardner, Rocky Bennett, Mikey Powell, Jason McPherson, Ricky Bishop, Harry Stanley, Leon Patterson, Sean Rigg, and the very recent death - only 2 months ago - of Olaseni Lewis to name but a few, have overwhelming issues of concern to the individual families and their communities and is a matter of great public interest.
Families’ confidence in the judicial system is completely broken-down and deaths are still too often occurring, unbeknown to the public at large. Even after families have campaigned vigorously for justice, after numerous reviews, parliamentary reports and inquiries, the following issues we raise surely call for an overhaul of the system:
- The vital need for open, transparent and robust genuine independent investigations and public inquiries into these controversial deaths. The IPCC to date have failed to inspire public confidence, and is not fit for purpose.
- Unlawful killing verdicts in Inquests are being over-turned with no recourse.
- Officers should not to be allowed to collude their statements of fact.
- Cameras need to be in all police vehicles in the interest of both the officers and the public.
- Immediate interviewing of police and prison officers in cases of this type.
- All families are being scrupulously means tested and often asked to contribute from their properties and life savings. There is a lack of funds for family legal representation at Inquests, whilst officers get full free non-means tested legal representation from the public purse - surely this is unfair treatment to families who are already struggling and grieving.
- There continue to be voluminous judicial reviews and legal battles with only 'no case to answer' verdicts.
- There is a strategy of long drawn out investigations, which go on for years in order to wear families down.
Murder, manslaughter, violent and brutal behaviour by state officials is totally unacceptable and we will not give up our pursuance of justice for our basic human right to life. We say that the behaviour of previous governments is shameful. Any moral member of the public with a heart would fail to understand why the government allows such blatant injustices to continually occur, with walls of silence and closed doors in our faces.
In light of the new coalition government’s announcement to change this country for the better, we urge you to immediately change the current institutionally flailing system on deaths in custody. Deaths in custody have to stop. If there is no justice, there will be no peace from the families concerned, and we will never give up, shut up, nor go away.
We await hearing from you with a positive response.
Yours faithfully
Marcia Rigg and Samantha Rigg-David
On behalf of the United Families and Friends Campaign
Update: Peter Marshall has published, with his photographs of the event, stories of some of those who have died on his excellent My London Diary.
First published on 2010-10-30; last updated on 2010-11-08.
The coalition government included in its May Conservative-Liberal Democrats coalition negotiations agreements, the following item in the Civil Liberties section:
Ending of storage of internet and email records without good reason.
In its Strategic Defence and Security Review – Securing Britain in an Age of Uncertainty (pdf) published earlier this week, the government announced it has apparently found a good reason:
We will: [...] introduce a programme to preserve the ability of the security, intelligence and law enforcement agencies to obtain communication data and to intercept communications within the appropriate legal framework. This programme is required to keep up with changing technology and to maintain capabilities that are vital to the work these agencies do to protect the public. Communications data provides evidence in court to secure convictions of those engaged in activities that cause serious harm. It has played a role in every major Security Service counter-terrorism operation and in 95% of all serious organised crime investigations. We will legislate to put in place the necessary regulations and safeguards to ensure that our response to this technology challenge is compatible with the Government’s approach to information storage and civil liberties.
This programme, formerly known as the Interception Modernisation Programme (IMP), was estimated to cost £2bn. Chris Williams, over at El Reg, gives some context in Green light for spooks' net snoop plan.
(This is obviously is in addition to the existing data retention programmes in place under the European data retention directives. See Voluntary electronic tagging for some thoughts on these.)
A 15-year old who had been locked up overnight in January in a case of mistaken identity received a written apology from the Chief Inspector Humberside Police and his DNA samples back. This is most unusual as when an innocent who has been arrested manages to convince the police that his or her case should be considered an ' exceptional case' –the only way to get off the DNA database–, the normal procedure is for the DNA samples to be destroyed and all the associated records (DNA profile, fingerprint, Police National Computer entry, etc.) deleted. This is the first case I am aware of where the police returns the DNA samples.
This case has been reported in detail by this is Hull & East Riding. Here are extracts about the DNA retention aspect from three articles published about this case (emphasis added):
Innocent boy locked up in identity mix-up, Friday, January 08, 2010
[...] Joshua, described by teachers as "a lovely lad" spent the night in a cell at Priory Road police station, had his fingerprints taken, a DNA sample swabbed from his mouth, and was photographed for a mug shot.
He was not released until yesterday morning, at about 10am.
Joshua said: "It was horrible – being treated like a criminal when I knew that I had done nothing wrong whatsoever, but no-one would believe me." [...]
Teen's apology from Humberside Police over DNA sample, Monday, January 25, 2010
[...] Mr Lever said: "Further enquiries revealed this boy was not involved and was released from custody.
"We are sorry he was arrested and kept in a cell overnight. For this I apologise."
Mr Lever, who issued the statement on behalf of Chief Constable Tim Hollis, who is currently in New Zealand, also confirmed Joshua's DNA sample would be destroyed without the need for the family to make a formal application to the force. [...]
Boy was held in cells 'unlawfully': Family's anger over case of mistaken identity, Wednesday, September 15, 2010
Joshua Stevens, 15, and his father
Alan with a letter from the police and
Josh's DNA samples.[...] Despite the ongoing claim, the Stevens family are claiming a victory after receiving a written apology from the force and they have been given back Joshua's DNA samples – an unprecedented move by Humberside Police.
Chief Inspector Kai Adegbembo wrote: "I personally apologise on behalf of Humberside Police for the negative impact that has resulted from the arrest." [...]
It remains extremely difficult for innocents to get off the National DNA Database. For help, check out the Reclaim Your DNA website created by GeneWatch UK and other organisations. If you succeed in getting off the DNA database, it is most likely your DNA samples will be destroyed and not returned to you.
Bootnote Hat tip to SC.
In December 2008, the European Court of Human Rights (ECtHR) found the UK was was in breach of the human rights of innocents when keeping their DNA and associated records. For the million or so innocents on the National DNA Database, the situation is still the same. Police and the courts can ignore the ECtHR ruling. To get off the DNA database, innocents have to follow the exceptional case procedure with limited chance of success. New legislation, which may eventually put an end to the breach and prevent any further violation in the future, is now scheduled for late 2011.
Two years ago, a unanimous grand jury at the ECtHR concluded:
[T]he Court finds 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, as applied in the case of the present applicants, 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. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.
This judgement was final and the UK must abide by ECtHR judgements by (as succinctly put by the Joint Committee on Human Rights):
The previous government dealt immediately with the obligations of reparation and to make just satisfaction, but there still has been no effective progress on the obligations of cessation and non-repetition. For some more details about these obligations see Don't delay: Delete your DNA today. For more on the previous government's response see Home Office still wants your DNA profile, and your PNC record; its last proposals received royal assent in the Crime and Security Act 2010 but none have come into force.
The current government promised it will follow the Scottish approach (explained in Adopting the Scottish approach to DNA retention) to change the rules for DNA retention.
Domestic law unchanged until changed
A recently-published High Court ruling from July ([2010] EWHC 2225 (Admin)) explored whether the police and courts are bound by the Strasbourg ruling or whether they should follow the earlier House of Lords ruling:
It is contended that the continuation of the policy upheld in the House of Lords but successfully impugned in Strasbourg is itself proportionate and legitimate. That temporary maintenance of the policy, so it is contended, affords a legitimate period of time in which the domestic law can be changed. But as the claimants point out, neither the Commissioner nor the Secretary of State as members of the executive can speak for the legislature. There can be no certainty as to when or what, or even whether legislation will be passed or, if it is passed, what it will contain by way of measures relevant to the retention of biometric samples and the time during which those samples can be held. This case must be judged, so the claimants contend, on the basis of the policy as it has been applied to them. Certainly, this case must be judged in the light of the question as to whether the decision of the House of Lords binds this court in the conclusion it reaches.
Lord Justice Moses ruled that 'this court is bound by the decision of the House of Lords. The doctrine of precedent and the legal certainty which that doctrine protects demands that this court follows the decision in S and Marper.' Until something changes domestically, nothing changes for all those on the DNA database.
Chief constables have continued to follow the Association of Chief of Police Officers (ACPO) guidance about DNA retention, the 'exceptional case procedure', which applied before the decision of the ECtHR. Chief constables will continue to do so until new legislation is introduced. A flow chart illustrating how a case is deemed exceptional is included in Innocents are exceptional.
Lord Justice Moses granted permission to appeal directly to the Supreme Court. In the ruling he has 'not expressed any view on the underlying merits' and the outcome of the case when it goes back to the House Lords (now the Supreme Court) is 'far from a foregone conclusion':
No one can properly predict the conclusion that the Supreme Court might reach. It is far from a foregone conclusion. In particular the Supreme Court will have to consider the relevance of the government's contention that continuing the policy at the moment is merely temporary, pending the introduction of new legislation, which will take into account the decision of the European Court of Human Rights and their contention that time should be given to make such changes in an area of great public concern, where legitimate views as to retention and use of biometric data may differ.
The case is not (yet) included in the Supreme Court's lists of current cases or judicial sittings.
Political reform and campaigning
In July as well, the government announced in its Political reform draft structural reform plan (pdf) that it will use its Freedom Bill to implement its agenda to '[r]estore the rights of individuals in the face of encroaching state power, in keeping with Britain’s tradition of freedom and fairness'. Changing the law on DNA retention is part of this civil liberties agenda:
Implement Freedom Bill to adopt the protections of the Scottish model for the DNA database, outlaw fingerprinting of children at school without parental permission, further regulate CCTV, restore rights to non-violent protest, and consider additional areas in response to ideas from Your Freedom website
Start: Jun 2010. End: Nov 2011. Lead: Home Office. Milestones: Freedom Bill passed Nov 2011
November 2011 is later than many campaigners had hoped for. That gives you, dear reader, plenty of time to lobby your MP. Of particular concern is whether when a DNA profile will be deleted, the associated Police National Computer (PNC) record will be deleted as well. This has happened so far under the exception case procedure, however the police had successfully lobbied the previous government to change this practice. The position of the coalition government on this issue remains unclear.
A response from the Ministry of Justice to the Joint Committee on Human Rights (pdf) dated from July (busy month) suggests, for the first time, that the government may in the interim bring into force some of the sections of the Crime and Security Act 2010, which received royal assent under the previous government:
The Government also intends to bring the retention of historic samples and profiles into line with the judgment of the Court as soon as possible. A number of potential options to do this as soon as possible are being explored, including commencing some or all of the DNA provisions of the Crime & Security Act 2010 where that would assist us in achieving early implementation of our policy objectives and the judgment in S & Marper.
One uncontroversial section, which could be commenced immediately, is section 64ZA about the destruction of the physical DNA samples stored in private labs' freezers as soon as a DNA profile has been derived from the sample, or if sooner, before the end of the period of 6 months beginning with the date on which the sample was taken. Such a measure would be welcomed by anyone on the DNA database and would reduce some of the costs. The only voice I have every heard opposed to this measure has been from someone working for a private lab having a direct financial benefit in the status quo.
While successive governments work out their intentions, the law and policies have remained the same and it continues to be extremely difficult for innocents to get off the National DNA Database. For help to get off, check out the Reclaim Your DNA website created by GeneWatch UK and other organisations as official help is lacking.
Bootnote Hat tip to Matthew Hill and Adam Wagner at the UK Human Rights Blog for their respective posts Courts entitled to ignore European Court decision on DNA and fingerprint retention and Courts entitled to ignore European DNA and fingerprints ruling… for now on the High Court case.
Correction: The number of innocents who have their DNA profile on the DNA database was incorrect when first published. (Thanks to ML for spotting this mistake.)
First published on 2010-09-01; last updated on 2010-09-02.
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.
Further information:
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
Speakers:
- 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.
The Metropolitan Police Authority (MPA) is having an open public meeting on the National DNA Database (NDNAD) and the use of DNA in policing on 2010-07-01. Organiser Victoria Borwick, Chair of the Civil Liberties Panel, wrote: 'We would particularly welcome firsthand accounts of those who have had their DNA taken by police and have requested that their DNA be removed from the database. In order to cover the range of topics and avoid repetition we shall be grouping the morning into six broad areas of discussion.' Here is a list of the seven areas of discussion:
- What informs your views and knowledge of the DNA database and the use of DNA in policing?
- How do you think the taking and / or retention of DNA affects individuals and families?
- How do you think particular communities are impacted e.g. ethnic minority and / or religious communities?
- What information is provided by the police and other bodies?
- How confident are you about the security of the DNA database?
- What do you know about the process of requesting removal from the DNA database and do you think this is fair?
- What do you think are the positive aspects of the database?
For more information and to register to participate check out the full agenda on the MPA website. Registration closes on 2010-06-21. See you at City Hall in July!
Update Webcast of the public meeting.
Update You can share your view with the MPA about the use of DNA in policing by completing and submitting this questionnaire by 2010-08-31.
First published on 2010-06-16; last updated on 2010-07-20.
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 (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:
Bloodspots
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:
http://newbornbloodspot.screening.nhs.uk/FAQs#1c
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:
http://tiny.cc/y7or0What 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?
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.
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.
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.
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.
Nearly two years ago I met with the producer (Ashley Jones) and researcher (Rebecca Lloyd-Evans) for the film Erasing David. At the time the project was introduced to me as:
The director, David, is going to attempt to disappear in the UK to test the boundaries of our police, surveillance and database state, while being traced by our countries top private investigator. This 'stunt' will be used as a way of exploring the larger issues surrounding privacy.
I expressed reservations about the disappearance 'stunt' part of the project. It felt like too many constraints were needed to make it work. I saw the film last week, and they have managed to pull it off successfully. The presentation as a detective story with both the points of view – of the chased (David Bond) and of the chasers (Cerberus Investigations) – makes for an interesting thriller. One change from the early brief is that the film tests aspects of private surveillance and the database state, but the police and their many databases are left out. The team from Cerberus slowly builds a vast profile of David Bond mainly through querying online information and using traditional sleuthing techniques such as checking the bins of David and his parents (for which they had prior consent). The experiences of being under surveillance and of realising how much data is held on us by commercial companies and public organisations has affected David Bond and his family beyond the film.
One particularly interesting aspect of the film is that it explores privacy issues that are not always easy to represent visually. Too often privacy is depicted in films solely with CCTV. A CCTV control room does feature in the film but only briefly. One instance where the documentary is particularly efficient is in communicating both the mass of data held on us and how one can figure out what is held on them. There is a scene where David goes through the piles of responses to subject access requests he had sent (using the Data Protection Act). The thickest response was from Amazon. Another response describes his mood when he contacted that organisation.
A number of privacy experts are interviewed in the film. Terri Dowty from Action on Rights for Children (ARCH) in addition to her interview has published, on the film's website, a Privacy guide for parents (pdf) detailing the information collected about children from the moment they are born. It's worth browsing through it even if you don't have kids to fully realise the extent of data collection going on. The website hosts more information such as education packs. If after seeing the film you decide to send a few subject access request, you may also find my simple guide to the Freedom of Information and Data Protection Acts useful.
The cinema première is on 2010-04-29 and there will be a live Q&A from the Brixton Ritzy that will get beamed to other simultaneous screenings. It will also be shown on More4 on 2010-05-04 at 10pm.
Note that if you plan to attend this free public debate on Thursday, I just learnt that you must register for it. Here are further details from the registration page:
Public Debate
‘Surveillance, Politics and Civil Society’Featuring Shami Chakrabarti, Directory of Liberty, Professor Clive Norris, University of Sheffield, Anna Minton, Writer/Journalist and David ‘Panda’ Mery, Writer/Activist
Chair: Professor Dr David Murakami Wood, Queen's University, Canada
Thursday 15th April 2010 at 7pm - 8:30pm, Oliver Thompson Lecture Theatre, City University London**
** Despite the event being free to members of the public, individuals MUST register in advance to guarantee a space in the auditorium.
Surveillance has become a topic of central importance for citizens, academics and governments alike as new space-time transcending monitoring technologies flood the market, pre-emptive, at-a-distance governance becomes the new logic of contemporary institutions, organisations seek to streamline and better administer their everyday practices, individuals perform and search for meaning within the spaces created by surveillance processes and the world becomes overlaid by a dense series of increasingly interconnected electronic flows. Several important questions are raised by these developments: how, for example, should relations between citizen and state, citizen and commerce and among citizens themselves be understood? In what ways might Human Rights principles be threatened by global flows and exchanges of data? How are concepts like personhood, identity, trust and privacy being transformed and shaped through surveillant practices? How might such developments be challenged and struggled over? What implications does national security policy have for individually situated notions of human security?
‘Surveillance, Politics and Civil Society’ seeks to address such questions by drawing on the views of a number of high profile, expert speakers and input from members of the audience. In particular, the session will explore what the role of civil society should and can be in regulating surveillance growth and expansion. Topics of debate will include: whether or not the state has become more authoritarian via its data collection practices and activities; what issues are raised by surveillance cultures embedding themselves into the everyday fabric of social life and social organisation; whether there are constitutional tools available to citizens to challenge surveillance protocols and processes, and a host of other related subject matter.
The event will be followed by a short wine reception, kindly sponsored by the Centre for Law, Justice and Journalism, City University London.
Details of other events this week, on hostile reconnaissance, police monitoring and privacy were posted earlier in Surveillance, hostile reconnaissance and legal observation.
Why is it that the topic of the National DNA Database (NDNAD) brings the worse crassness out of politicians? Two days ago, the Tories changed their mind on what they had long claimed to be a 'point of principle', allowing the Crime and Security Bill to become an Act with its DNA clauses intact. Today, Gordon Brown went a few notches up by misleading the public about DNA retention in the presence of the family of Sally Anne Bowman, at a campaign event in Stevenage. His arguments, that retaining the DNA profile of anyone arrested is essential to bring to justice criminals, including the killer of Sally Anne Bowman, has been debunked before, many times.
Retention of DNA profiles of innocents does not improve crime detection. What helps is retention of DNA profiles of crime scenes. More details in the post: Home Office gets DNA database funding priorities wrong. Tables of the detection rates for the past two years are in this post: Sorry Affairs Committee; it has remained over the years close to 0.36%.
The Home Office has still not published data supporting the claims by ministers of cases where DNA evidence has been essential. What has been published by the Home Office has times and again proven to be unreliable: the research by the Jill Dando Institute published with the Home Office consultation was from my reading of it an estimation based only on approximately 18 cases taken over three days at one year interval; more about this in the post: Sentenced to genetic probation (the research was later disavowed by the Institute's director). The research published alongside the summary of responses to the consultation is of little use as it 'does not provide evidence to inform the length of any general DNA retention period'; more details in the post: Home Office still wants your DNA profile, and your PNC record. When the Home Office listed five case studies in a letter to a Committee scrutinising the Crime and Security Bill, two of these five were in fact one and the same; more details in the post: Home Office: five equals four.
In the specific case of Sally Anne Bowman, Mark Dixie's DNA was profiled after a pub brawl and then matched to the DNA profile of the crime scene. There was no need for DNA retention of individual profiles in this case. This case and a few others are listed on Liberty's Busting the Myths. Gordon Brown also mentioned how Sally Anne Bowman's boyfriend was eventually exonerated thanks to the arrest of Mark Dixie. What he didn't say is that another innocent man, Kevin Reynolds, whose DNA profile was on the DNA database, was also arrested for this murder and had a second DNA sample taken when his first retained sample should have been enough to prevent his arrest. More details, published two years ago, in the post: DNA retention of unconvicted people.
The National DNA Database has more than five million records including those of close to one million innocents. What happens to their personal and intimate data should get more respect from politicians.
See also reactions from GeneWatch UK and Liberty, and the election fact checking of The Guardian and The Times.
Several events next week may be of interest to some readers of this blog. I will be delivering one of the keynotes on Thursday and will be attending the training workshop on Sunday. I look forward to meeting some of you.
Hostile Reconnaissance, Tuesday 2010-04-13 at 7pm, Friends Meeting House in Euston
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.) This rally on Terror Laws, Civil Liberties & Press Freedom is organised by the London Photographers’ Branch:
Update: an audio recording of the debate as well as the video commissioned for the event are available online.
Surveillance, Politics and Civil Society, Thursday 2010-04-15 at 7pm, City University, Oliver Thompson Lecture Theatre
Surveillance, Politics and Civil Society is the title for a set of four public keynotes that will close the three day conference A Global Surveillance Society? The conference itself is registration-only, but these closing keynotes are part of a public event for which the organisers look forward to attract a healthy representation from the public for the Q&A discussion.
Update: Despite the event being free to members of the public, you must register in advance to guarantee a space in the auditorium. (The event will be followed by a short wine reception.)
My keynote will focus on the role of the citizen in confronting and challenging surveillance protocols. I intend to briefly explain the facts of my arrest, to give some context, and then spend most of the keynote talking about the instances of surveillance and data collection I faced and how to proceed to find out what the state has on you, how to get off the databases and other more general measures.
Erasing David, Friday 2010-04-16, 6.30pm, Free Word Centre, Farringdon
Erasing David is a film about another David, its director David Bond documenting the meaning of privacy and the loss of it. In his film David Bond decides to find out how much private companies and the government know about him by attempting to disappear. This screening will be introduced by Jo Glanville, the editor of Index on Censorship, who will also will lead a Q&A afterwards with the director and the private investigators who hunted him. Email to book your free place.
Police Monitoring and Legal Observation Training, Sunday 2010-04-18 from 10:30am to 4:30pm, Friends Meeting House in Euston
If you're worried about abuse of police powers at protests and in your community, but don't know what to do about it, this training should provide practical answers. It will give you skills to be a legal observer and monitor protests such as those that will happen on May Day in Central London. Sessions will include police powers, stop and search and surveillance, as well as workshops on legal observation and police monitoring.
The organiser Network for Police Monitoring is a new organisation made up of individuals involved in Campaign Against Criminalising Communities, Climate Camp Legal Team, Fit Watch, Legal Defence and Monitoring Group and Newham Monitoring Project. To have an idea of numbers, they would appreciate an email if you're planning to attend.
(Updated with details of the screening of Erasing David, with registration information for the debate 'Surveillance, Politics and Civil Society' and the recording of the hostile reconnaissance event.)
First published on 2010-04-07; last updated on 2010-04-25.
This afternoon in the Lords, Baroness Neville-Jones said 'Systematic reform is needed and a new approach focused on the guilty and on those who pose most risk. This is a fundamental root and branch change that we will not achieve today but which must be achieved by a new Government. For now, we take the view that it is important that we have in law acceptance of the proposition that the indefinite retention of innocent people’s DNA is unacceptable and illegal.'
Only three weeks ago on the closing panel at a conference on Stop and Search at Kings College, Crispin Blunt MP, Shadow Home Affairs Minister for Counter-Terrorism agreed to pledge that during the wash-up the Conservatives would not go further than the Scottish approach in relation to the DNA retention clauses in the Crime and Security Bill. This had been the position of the Conservatives until today. This afternoon, the Conservatives have accepted that this is no longer a 'real point of principle' for them as they have withdrawn their opposition to the bill. That means accepting the retention of the DNA profiles of innocents for six years (possibly more 'for reasons of national security').
Baroness Neville-Jones made another pledge: 'A Conservative Government if in office will do the following: they will legislate in the first Session to make sure that the DNA database includes permanent records only of people who have been convicted of an offence and, for a more limited period, those charged with sexual or violent offences. Secondly, we will focus efforts on collecting the DNA of all existing prisoners, those on probation, on licence or in prison or under the supervision of the criminal justice system, which the Government have failed to do. Thirdly, we will introduce new guidelines so that those wrongly accused of minor crimes and who have volunteered their sample have an automatic right to have their DNA removed from the database—one thing that this House most strongly objects to.'
Here's the full text of this short debate:
Amendment 2
Moved by Baroness Hamwee
2: Before Clause 14, insert the following new Clause—
“Retention, destruction and use of fingerprints and samples
For section 64 of the Police and Criminal Evidence Act 1984 (destruction of fingerprints and samples) there is substituted—
“64 Destruction of fingerprints and samples
(1) Unless provided otherwise in this section, where fingerprints, impressions of footwear or samples are taken from a person in connection with the investigation of an offence, the fingerprints, impressions of footwear or samples or any DNA profile may not be retained after they have fulfilled the purposes for which they were taken and shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom a body part came.
(2) In subsection (1) above—
(a) the reference to crime includes a reference to any conduct which—
(i) constitutes one or more criminal offence (whether under the law of a part of the United Kingdom or of a country or territory outside the United Kingdom); or
(ii) is, or corresponds to, any conduct which, if it took place in any one part of the United Kingdom, would constitute one or more criminal offences; and
(b) the references to an investigation and to a prosecution include references, respectively, to any investigation outside the United Kingdom of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside the United Kingdom.
(3) A DNA sample must be destroyed—
(a) as soon as a DNA profile has been derived from the sample, or
(b) if sooner, before the end of the period of six months beginning with the date on which the sample was taken.
(4) Any other sample to which this section applies must be destroyed before the end of the period of six months beginning with the date on which it was taken.
(5) Fingerprints, impressions of footwear and DNA profiles are not required to be destroyed if they were taken from a person convicted of a recordable offence.
(6) Where any fingerprint, impression of footwear or sample has been taken from a person who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall not be destroyed—
(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the “initial retention date”; or
(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken, such date being the “initial DNA retention date”; or
(c) if an application is made to the court under subsection (7), until such later date as may be provided by subsection (8) or (10) below.
Provided always that if the person is convicted of a recordable offence, subsection (5) shall apply.
(7) On application made by the responsible chief officer of police within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.
(8) An order under subsection (7) shall not specify a date more than two years later than—
(a) the initial retention date in relation to fingerprints or impressions of footwear, or
(b) the initial DNA retention date in the case of a DNA profile.
(9) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.
(10) A fingerprint, an impression of footwear or a DNA profile shall not be destroyed where—
(a) an application under subsection (7) above has been made but has not been determined;
(b) the period within which an appeal may be brought under subsection (9) 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.
(11) Where—
(a) the period within which an appeal referred to in subsection (9) has elapsed without such an appeal being brought; or
(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (8);
the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.
(12) Subject to subsection (13) below, where a person is entitled to the destruction of any fingerprint, impression of footwear or sample taken from him or DNA profile, neither the fingerprint, nor the impression of footwear, nor the sample, nor any information derived from the sample, nor any DNA profile shall be used in evidence against the person who is or would be entitled to the destruction of that fingerprint, impression of footwear or sample.
(13) Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention, in the case of a fingerprint or impression of footwear or the retention of any DNA profile—
(a) that fingerprint, impression or DNA profile as the case may be need not be destroyed;
(b) subsection (12) above shall not restrict its use; provided that—
(i) no DNA profile may be retained on any child under the age of 10 years; and
(ii) consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible following receipt of such written application.
(14) For the purposes of subsection (13), it shall be immaterial whether the consent is given at, before or after the time when the entitlement to the destruction of the fingerprint, impression of footwear or DNA profile arises.
(15) In this section—
“DNA profile” means any information derived from a DNA sample;
“DNA sample” means any material that has come from a human body and consists of or includes human cells;
“the responsible chief officer of police” means the chief officer of police for the police area—
(a) in which the samples, fingerprints or impressions of footwear were taken; or
(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken;
a “sexual offence” or “violent offence” shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.
(16) Nothing in this section affects any power conferred by paragraph 18(2) of Schedule 2 to the Immigration Act 1971 or section 20 of the Immigration and Asylum Act 1999 (c. 33) (disclosure of police information to the Secretary of State for use for immigration purposes).
(17) An order under this section must be made by statutory instrument.
(18) A statutory instrument containing an order under subsection (17) shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””
Baroness Hamwee: I shall speak also to the amendments grouped with this one and to our objections to Clauses 14 to 23 standing part.
With this amendment we come to the subject of DNA. In the first debate in which I spoke on the Home Affairs portfolio, I said that for Liberal Democrats, civil liberties are in our DNA. The Minister protested that they were in his too, and I do not for a moment doubt it. Unfortunately, although they might be in his DNA, they are not in this Bill.
The current law on DNA retention has been held by the Grand Chamber of the European Court of Human Rights to breach the European Convention on Human Rights. The “blanket and indiscriminate nature”, to use its words, of the law under which the police may retain indefinitely the DNA of the person arrested, whether or not convicted or even charged, failed to,
“strike a fair balance between the competing public and private interests”.
Following the case of S and Marper the Government have got to do something. However, what they are choosing to do in this Bill is only a marginal improvement. Those arrested but not charged or convicted will still have their DNA profile kept on the national DNA database for at least six years. In our view, the retention of the DNA profile of an innocent person for six years is six years too long.
I spoke at Second Reading of the importance of the presumption of innocence over guilt holding in our technologically advanced world; of arrest not being confused with conviction; and of the stigma attached to DNA retention. Evidence of that was debated not only in this House but in the Commons and given to the Home Affairs Select Committee, which has recently published a report on the matter.
The Home Office has relied on research which itself relies on the flawed premise that arrest is an indicator of the risk of offending—arrest not conviction—and it measures the risk of offending by the risk of rearrest. So it appears that two arrests are evidence of criminality. I could go on but I shall not do so because I am aware of how much business the House has to get through—I was going to say tonight but perhaps I should say before we start business again tomorrow.
Members of the Commons discussed the matter at length—they went on because they had more opportunity—and the Conservative Member Mr Brokenshire said that,
“the measure fails to take account of one of the fundamental principles of our liberal democracy: the presumption of innocence before the law unless one has been proven guilty. That principle should be an important guiding factor in framing the debate on retention, rather than being an inconvenient anomaly, as the Government appear to view it, given their historical approach to DNA retention”.—[Official Report, Commons, 8/3/10; col. 41.]
He said that when introducing an amendment that is exactly the same as the amendment we have tabled. I do not often flatter the Conservatives—either sincerely or insincerely—but they will recognise the imitation on this occasion.
I made it clear at Second Reading that the amendment is a compromise. The Scottish model, which this is—or, one might say, the model of my noble friend Lord Wallace of Tankerness—self-evidently is more proportionate than the provisions in the Bill. Innocent people are treated as innocent but there is an allowance for a three-year retention of data in the case of those suspected of sexual or violent offences. I have flattered the Conservatives and now I shall quote the noble Baroness, Lady Neville-Jones. At Second Reading—which seems a long while ago—she said:
“In the absence of a much better put together case than the assertions that we heard this afternoon, the Scottish system has shown that it is capable of delivering. It is the reason why we on these Benches prefer that model. We believe that the state should not retain the DNA profiles of those not convicted of an offence, except in circumstances where the charges relate to a crime of violence or of a sexual nature”.—[Official Report, 29/3/10; col. 1234.]
That is quite right.
In winding up for the Conservatives, the noble Lord, Lord Skelmersdale, said:
“Suffice it to note that both the Joint Committee on Human Rights and your Lordships’ Constitutional Committee doubt whether Clauses 14 to 21 really are Human-Rights-Act-proof”.—[Official Report, 29/3/10; col. 1268.]
He said that predicting what would happen with the Bill was above his pay grade, although it was obvious from his speech that he expected it not to see Royal Assent. I therefore trust that the noble Baroness will not now support the Government in view of her own and her party’s clear position previously. I await to hear her views with interest, but if she tells the House that this is a matter for review and if her party finds itself in a position to conduct a review it will do so, why not on the basis of the Scottish model rather than the regime which her party and she have condemned and which may well be—following high legal costs and much emotional agony—condemned by the European court? I beg to move.
The Earl of Onslow: My Lords, I am a member of the Joint Select Committee on Human Rights; I shall leave it the day after tomorrow, or whenever Parliament rises, because I have done my four years. The committee looked at this issue and did not think it would pass the Human Rights Act hurdle. When you take a horse racing, it is silly to put up an overscoped fence so that it falls flat on its face, and then put up another fence which is too big for it and, bang, down it comes again. That is an exact parallel to what the Government are doing in this case.
DNA is one of the greatest aids we have had in modern times to assist in solving crimes, particularly unpleasant and nasty ones—I totally concede that. However, we must never lose sight of the liberties of the subject. That means that the DNA collected from innocent people who volunteer to give it in a murder inquiry should automatically be destroyed; the DNA of people who have been arrested but against whom charges have not been brought should be destroyed; and the DNA of people who are charged and acquitted should also be destroyed. I do not know whether the amendment goes far enough or whether it is comprehensible—I looked at it, tried to read it but could not understand it—but I was efficiently briefed by Liberty. I believe that that sums up Liberty’s position, as well as I can remember it, and also the position of the Joint Committee on Human Rights. We were unanimous on this issue, as we are on quite a few matters, and there was no question of any split or vote on it.
When a case is lost in the European Supreme Court, it is stupid of the Government, instead of accepting that the case is lost, to produce legislation which will lead to them losing again. I fear that the provisions in the Bill will produce another fall at the second hurdle. The amendment should at least be taken seriously, if not accepted.
Baroness Kennedy of The Shaws: My Lords, I, too, support the amendment. I can always be relied upon to be consistent on this issue. From the point where the law was changed to allow the retention of the DNA of those who were arrested but subsequently not charged, I have opposed that retention. People feel quite seriously that there is a stigma attached to the retention of DNA. If they have been arrested and no subsequent charge follows, its retention on the database makes them feel that a terrible wrong is being done to them by the state. That might be different if everyone were on the database from the word go, but it is not the situation that we are currently facing.
I was saddened that the Government did not accept, in light of the European Court’s decision, that there were breaches of human rights principles. While I was not particularly accepting of the Scottish formula, I felt that it was a compromise that the Government should have willingly accepted. It is a great regret to me that they have not done so. I, too, shall support the amendment. It seems to me that a case will go up through the courts, and it is very likely that it will be found that the Government’s new formulation will, like the old one, offend against human rights standards. I would have thought that this was a moment to say, “Enough. Let’s reflect on this over the next period and see what a new Parliament, in whatever form it is, might feel about all these matters in a fresh dawn”.
Lord Judd: My Lords, having spoken on this subject at Second Reading, I feel compelled to say that I have a good deal of good will towards the drift of the amendment put forward by the Liberals. I find it very sad that, at the end of this Parliament, we should be endorsing the erosion of one of the fundamental principles of justice in this country as I have understood it, which is the presumption of innocence.
There will be those for whom there is no question of their presumption of innocence; there will be some who have a qualified presumption of innocence because their name is on a register or record even though they have not been found guilty of any crime. This is not an acceptable situation. I also find it very sad that we should at this stage be dragging our feet not only on what our own Joint Committee on Human Rights and Select Committee on the Constitution have said but on what the European Court has been so firm about.
The issues of proportionality, too, are central to our whole tradition of justice, and this is what has raised anxiety. I would have liked to feel at this stage that we were in the vanguard of defending these principles. I am really concerned about the erosion of everything that we have understood to be the cornerstones of our system of justice.
I am sorry to have to say these things this evening, but, having spoken at Second Reading, I think that it would be pretty feeble just to walk away and not put on record my feelings about the amendment. I shall be very sad if my noble friend is not in some way able to meet them, because I have the highest regard for him and all the responsibilities that he carries so cheerfully and willingly on our behalf. I regard myself as one of the firmest supporters of the Government, but I can put it no other way than to say that I am very sad to find myself in this predicament this evening.
Lord Avebury: Your Lordships might be interested to hear a story which I am about to tell of a person who had his DNA taken when he had no criminal record. Having gone through the immigration process at Heathrow Airport—he was a British citizen—he was stopped by Special Branch on the land side, taken aside, detained and made to give a sample of his DNA and fingerprints. When I was asked to assist him in getting the samples removed from the database, I wrote to the relevant Minister in the Home Office and was told there was a procedure whereby one could appeal to the relevant chief officer of police for a special review. I wrote to the chief officer of the Metropolitan Police; I gave him the details of what had happened and asked him to conduct a review. After a while, he wrote back and said that he was not the chief officer concerned because he did not deal with Special Branch cases. I therefore had to write another letter to a different chief officer of police.
To cut a very long story short, it took 14 months for that review to take place, during which the man concerned had, as noble Lords have said, a stigma hanging over him because his samples were taken on the database. People would say, “Well, surely he must have been guilty of something if they felt so certain that the DNA was required to be kept in this way”. I subsequently discovered that only three people had been successful in making a special appeal and getting DNA samples removed from the database. Everything that has been said about the violation of our human rights and the ignoring of the European Court is reinforced by what one knows about these cases.
I sincerely hope that the Minister will pay close attention to the amendment and, if not agree to it, at least guarantee that we will take steps to bring ourselves into conformity with our commitment to European human rights legislation.
Baroness Neville-Jones: My Lords, the retention, destruction and use of DNA samples have been the subject of much debate over several years. The controversy has centred on the indefinite retention of the DNA profiles of those who have committed no crime or who have been cleared of allegations against them, which has been found to be illegal. We on these Benches, with others, have successfully pushed the Government to end the permanent retention of innocent people’s DNA. Hence we now have these government proposals in the Bill.
I said at Second Reading that we still preferred the Scottish model, under which the state would retain for a limited period of three to five years the DNA profiles of those not convicted of an offence only in circumstances where charges relating to a crime of violence or of a sexual nature had been brought. The Home Secretary says that the police in Scotland do not think that their model works well; the Minister said the same thing when we last debated this matter. However, this is not borne out by the evidence, which shows that the Scottish system has a higher detection rate than that in England and Wales. Moreover, Labour Members of Parliament supported the Criminal Procedure (Scotland) Act 1995 which put that system in place. I therefore beg leave to take issue with those who claim, as the Home Secretary has done, that to take the Scottish system seriously is not to take the issue seriously.
The problem is that we are out of time for proper discussion, so we have to look at the essentials. First, we now have cross-party acceptance of the principle that the indefinite detention of the DNA profiles of those who are innocent is wrong and ineffective. We need to get this principle into law. It is also a requirement of the ECHR’s judgment, which we agree with and respect. Secondly, the legislation offers some control over one of the other most obnoxious features of current system, which is the postcode lottery involved in getting off the database the profiles of those who should not be on it.
At this late stage, the Liberal Democrat Benches have put forward an amendment which in some respects travels back from the rather uncompromising position that they have taken hitherto. Sadly, it is too late for proper discussion. Were we able to have that, there would be a number of changes that we would want to try to make. The amendment fails for instance to provide for getting on to the database the profiles of those who have been convicted of criminal offences but who have never been put on it. There are a significant number of people who should now be on that database, if we regard the database as being a way of usefully detecting crime.
The position of my party is absolutely clear. We do not resile from the view that the entire system needs to be overhauled, not piecemeal but systematically. A Conservative Government if in office will do the following: they will legislate in the first Session to make sure that the DNA database includes permanent records only of people who have been convicted of an offence and, for a more limited period, those charged with sexual or violent offences. Secondly, we will focus efforts on collecting the DNA of all existing prisoners, those on probation, on licence or in prison or under the supervision of the criminal justice system, which the Government have failed to do. Thirdly, we will introduce new guidelines so that those wrongly accused of minor crimes and who have volunteered their sample have an automatic right to have their DNA removed from the database—one thing that this House most strongly objects to. It is not about one party being soft on crime and one party being tough on crime, as the Home Secretary said; that is absolute nonsense. We all agree that DNA is an important and useful tool. The issue is one of creating a DNA database that works and that has public trust, given that detections have fallen although the number of profiles has ballooned. This is a point that should not be missed. In fact, the prison system is not working very well because, although we have increased numbers put on it, the actual number of detections is falling.
Systematic reform is needed and a new approach focused on the guilty and on those who pose most risk. This is a fundamental root and branch change that we will not achieve today but which must be achieved by a new Government. For now, we take the view that it is important that we have in law acceptance of the proposition that the indefinite retention of innocent people’s DNA is unacceptable and illegal.
Lord West of Spithead: My Lords, I certainly did not understand wash-up before, and I am still not sure that I do understand it. However, it seems to me to be an agreement between the main parties about finding a way ahead, so I was rather taken aback by the noble Baroness, Lady Neville-Jones, listing a great long list of proposals for what is intended to be done. My understanding was that it was only because of an agreement that this has come through—but clearly I have been taken flat aback on that one and do not understand what is going on. But that was my understanding of it.
In any event, as has been said, the proposed amendments would replace our proposal with a variant of the Scottish retention model. It was discussed, of course, in the other place, where it was pressed to a Division and defeated by some 79 votes. As the Committee will be aware, Scotland has a very different approach to the retention of fingerprints and DNA from the one that the Bill proposes. The Scottish model is that DNA samples and resulting profiles must be destroyed if the individual is not convicted or granted an absolute discharge, and DNA may be retained for those not convicted only if they are suspected of certain sexual or violent offences, when it may be retained for three years. That can be extended at perhaps two years at a time with the approval of a sheriff. While there was some support for the Scottish retention model during the Bill’s earlier stages in the other place, it should be noted that the Scottish Executive, as with so many other things that the Scottish Executive do, arrived at their model with no research whatever. It was just plucked out of the air. The model also has significant operational limitations. As the noble Baroness, Lady Neville-Jones, says, it is not just the Government’s view that the Scottish model poses problems for the police; the Scottish Association of Chief Police Officers said in February 2008:
“Our position is that we should move into line, after discussion with Scottish Government, with England and Wales and DNA samples should be taken and retained under strict guidelines from offenders. We are in favour of mirroring any legislation in the UK Parliament allowing the taking and retention of DNA samples from persons arrested for an offence”.
It is interesting to note the talk about higher detection rates in the Scottish example. That is not the case. The Scottish DNA database does not have a higher success rate. The figures quoted on one occasion look at 2005–06 figures and do not compare like with like. The latest like-for-like data, from 2008–09, show that the England and Wales database has a 13 per cent higher success rate than Scotland, so the Scottish Association of Chief Police Officers is correct and our system is somewhat better.
More significantly, consideration also needs to be given to the underlying principal question in this amendment of whether the biometric data of those not convicted of an offence should be treated differently depending on the nature of the offence under investigation. Potentially, that could create different levels of innocence, depending on what it is that someone has not done. We propose a single retention period regardless of the seriousness of the offence for which a person has been arrested. The best available evidence indicates that the type of offence for which they are first arrested is not a good indicator of the seriousness of the offence that he or she might subsequently commit. The Scottish model, proposed in the amendment, therefore risks missing many detections of serious offences due to the nature of the offence originally under investigation. For example, in 2008–09 alone, there were at least 79 rape, murder or manslaughter cases in England and Wales that were matched to the DNA database from DNA profiles that belong to individuals who had been arrested but not convicted of any crime. Of that number, in 36 cases the matches were found to have had a direct and specific value to the investigation. If we had applied the Scottish retention regime and retained DNA profiles only from those arrested but not convicted of a serious crime, at least 23 victims of the most serious crimes, and of course their families, could have been denied justice last year alone.
In the light of the above, and as the retention of DNA is not punitive but a measure to facilitate the detection of future offences, we believe that a single retention period is the correct way forward. Indeed, on the point of it not being punitive, a number of speakers have talked about being on the database as being a stigma. I believe that it is a stigma only if people know that someone is on the database. I personally have no concern about being on it. Almost nobody knows that someone is on the database. It is a stigma only if someone knows that you are there.
On the Motions that Clauses 14 to 23 should not stand part of the Bill, I point out that if these Motions were carried we could be no further forward than we were at the beginning of last year. We would still be in breach of the European Court’s ruling, as a number of noble Lords have said, and we would not have a legislative framework for the retention of DNA profiles and fingerprints. We consider that our DNA retention proposals represent an appropriate balance between public protection and protecting individuals’ rights and liberties, based on the best available research. We also believe that it will meet ECHR requirements and the ECHR judgment. While some have criticised elements of our research evidence, I remind your Lordships of the key points that the evidence points us to. We can justify retaining the DNA of people who have been arrested but not convicted while the risk of offending is higher than that of the general population. Our analysis suggests that that risk, as measured by the risk of rearrest, is higher than the general population for six years following the first arrest. While arrest is only a proxy indicator of the risk of offending, the nature and volume of data currently available to us mean that a more precise arrest/conviction analysis is likely to be less reliable. Yes, we can do more work, but at least we have done some analysis, unlike under the Scottish system. The precise length of time to equalise the risk may vary in either direction due to the uncertainties in the analysis and data. On balance, these uncertainties are more likely to extend the time that it takes for these risks to be equal, which would argue in fact for a longer retention period. But we must do analysis and look at this in much more detail.
The noble Earl, Lord Onslow, referred to samples being taken from volunteers. Those samples can and must be removed from the database on request, and DNA from a volunteer is put on the database only in very exceptional circumstances, at the explicit request of the volunteer.
Ultimately, the evidence can only go so far to answering the question of what is an appropriate retention period. When there are statistical uncertainties around the estimate, the final decision must be one based on judgment—it is not precise yet—and not evidence alone. But we are trying to build up more evidence to get a better database. That is how we arrived at a retention period of six years, the point at which our research tells us that the risk of rearrest returns to the risk of arrest in the general population. We consider that our proposals are a cogent and considered package and represent a huge change from the situation as it stands, as was touched on by the noble Baroness, Lady Neville-Jones, taking us from a blanket indefinite retention, whereby innocent and guilty are treated alike, and whereby DNA profiles are kept as long as DNA profiles—two finite periods based on research and differentiating between different categories of individual. We further believe that the safeguards outlined in Clause 23 relating to the national DNA database strategy board provide sufficient scrutiny and oversight of the process and will result in clear and consistent guidance being issued in future on the destruction and deletion of profiles. A number of speakers touched on that point.
I am particularly disappointed that, after all the consensual work done in the other place to put into place a new role for the strategy board, noble Lords wish to remove Clause 23. I also put on record my gratitude to the official Opposition for agreeing, as part of the wash-up, that our proposed retention framework should be put on the statute book. That agreement means that we can bring an end to the somewhat protracted process of responding to the judgment of the European Court, giving some certainty to both the police service and the public at large that biometric data will be held under a specific and detailed statutory regime. On that basis, I ask that Amendment 2 be withdrawn and that Clauses 14 and 23 should stand part of the Bill.
Baroness Hamwee: My Lords, I am very grateful to those noble Lords who have supported my amendment and my opposition to certain provisions in the Bill. I hope that they will forgive me if, in the interests of time, I do not go through all the points that they made. The Minister said that he still does not understand wash-up; he had thought that only what was agreed went forward. He said that after listening to the noble Baroness, who seemed to be opposing the Government’s proposals. All I would say is: indeed.
On having no research of the Scottish model, the Home Office research, by all accounts, seems to have been—what can I say?—a bit dodgy. It is certainly not as substantial or as useful as those looking for a solution to all of this would want to find. I understand, of course, that the police want the most extensive tools possible. The Minister talked of detection rates; my response is that the Home Affairs Select Committee, in one of its conclusions to the report that it published only recently, on 8 March, said:
“It is currently impossible to say with certainty how many crimes are detected, let alone how many result in convictions, due at least in part to the matching of crime scene DNA to a personal profile already on the database, but it appears that it may be as little as 0.3%”.
It went on that,
“we note that the reason for retaining personal profiles on a database is so that the person can be linked to crimes he/she commits later”.
Yes, the Government are proposing a single retention period—but one which is too long.
The noble Lord gave examples of where DNA has been used to solve crimes. We all know about hard cases and bad law. As I have said, the general view is that there is a poor evidence base for what is proposed. He said that if the clauses do not stand part of the Bill, we will be no further forward in responding to the European court. Indeed, that is absolutely my point; it would then be necessary to reconsider the matter.
For the Conservatives, the noble Baroness says that we are out of time for proper discussion, that it is too late for that and, in effect, that the amendment—she did not use this word—is inadequate. I thought that I could have done no better than using the Conservatives’ own amendment. If it is inadequate—in my view it would be a compromise, but one which I hoped would take the noble Baroness and her troops with us—better to start from the inadequate than the bad. The Conservatives, if they do not support these Benches on these amendments, must accept responsibility along with the Government for the bad. I wish to test the opinion of the House.
Division on Amendment 2
Contents 53; Not-Contents 159.
Amendment 2 disagreed.
Division No. 2
CONTENTS
Addington, L. [Teller]
Alderdice, L.
Alton of Liverpool, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Chidgey, L.
Clement-Jones, L.
Dholakia, L.
D'Souza, B.
Erroll, E.
Falkland, V.
Finlay of Llandaff, B.
Garden of Frognal, B.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Jones of Cheltenham, L.
Kennedy of The Shaws, B.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Livsey of Talgarth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Miller of Chilthorne Domer, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Loan, B.
Palmer, L.
Phillips of Sudbury, L.
Razzall, L.
Rennard, L.
Roberts of Llandudno, L.
St. John of Bletso, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Tyler, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Wilson of Tillyorn, L.
NOT CONTENTSAndrews, B.
Anelay of St Johns, B.
Archer of Sandwell, L.
Astor of Hever, L.
Attlee, E.
Bach, L.
Bassam of Brighton, L. [Teller]
Bates, L.
Best, L.
Bilston, L.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Bridgeman, V.
Brooke of Alverthorpe, L.
Brooke of Sutton Mandeville, L.
Brookman, L.
Brooks of Tremorfa, L.
Butler-Sloss, B.
Byford, B.
Campbell-Savours, L.
Cathcart, E.
Christopher, L.
Clark of Windermere, L.
Clinton-Davis, L.
Colwyn, L.
Cope of Berkeley, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
De Mauley, L.
Dubs, L.
Elder, L.
Elton, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fookes, B.
Forsyth of Drumlean, L.
Foster of Bishop Auckland, L.
Freud, L.
Gale, B.
Gardner of Parkes, B.
Geddes, L.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goodlad, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greenway, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hanham, B.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Henig, B.
Henley, L.
Hilton of Eggardon, B.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howarth of Newport, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Inglewood, L.
Jones of Whitchurch, B.
Jordan, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Lea of Crondall, L.
Luke, L.
MacGregor of Pulham Market, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mancroft, L.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Mayhew of Twysden, L.
Montrose, D.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Bolton, B.
Morris of Handsworth, L.
Morrow, L.
Neville-Jones, B.
Nicholson of Winterbourne, B.
Noakes, B.
Northbrook, L.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Clackmannan, L.
Onslow, E.
Paisley of St George’s, B.
Patel of Blackburn, L.
Pendry, L.
Perry of Southwark, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Quin, B.
Rawlings, B.
Richard, L.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Seccombe, B.
Selsdon, L.
Sewel, L.
Sheikh, L.
Shrewsbury, E.
Slim, V.
Soley, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Taylor of Holbeach, L.
Thornton, B.
Tomlinson, L.
Trefgarne, L.
Trenchard, V.
Tunnicliffe, L.
Verma, B.
Waddington, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Waverley, V.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilcox, B.
Wilkins, B.
Williamson of Horton, L.
Young of Norwood Green, L.
Update: On April 8th at 5:22pm, Mr Speaker announced that the House has been to the House of Peers where a Commission under the Great Seal was read, authorising the Royal Assent to twenty Acts including the Crime and Security Act 2010.
The Home Office proudly confirmed:
The Act contains the following provisions:
- a new DNA retention regime to hold the DNA profiles of convicted offenders indefinitely and keep the DNA profiles of those who are arrested but not convicted of a recordable offence for a fixed amount of time;
- powers for police to retrospectively take DNA samples from violent and sexual offenders returning to the UK following conviction overseas, and to collect DNA from such convicted offenders who are no longer in prison;
- a mandatory parenting needs assessment when young people aged ten to 15 are being considered for an antisocial behaviour order (ASBO) and parenting orders where they have breached their ASBOs;
- powers for police and local authorities to apply to a county court for an injunction against young people over 14 to prevent gang related violence, for example prevent a gang member from meeting other named gang members or going into a particular 'territory';
- domestic violence protection orders requiring an alleged domestic violence perpetrator to leave the home for a fixed period of time;
- a licensing scheme for wheel clamping companies and an independent appeals process for motorists who feel they have been wrongly clamped;
- financial compensation for British citizens who have been injured or bereaved by a terrorist attack overseas;
- powers for licensing authorities to make an order restricting the sale or supply of alcohol between the hours of 3am and 6am;
- reduced amounts of information that police must collect when stopping and searching an individual;
- powers for police to search individuals subject to control orders and to seize items of concern where appropriate;
- a new offence of possession of an unauthorised mobile phone or other electronic communications device in prison; and
- a new offence of failing to prevent minors from having access to air weapons.
First published on 2010-04-07; last updated on 2010-04-08.
On Thursday morning, a one minute silence will be observed at Cornhill by Threadneedle Street at 11am to remember the death of Ian Tomlinson a year earlier.
The following open letter to the Director of Public Prosecutions is published in the Thursday issue of The Guardian:
A year on, we still wait for answers about Ian Tomlinson's death
It has now been one year since the tragic death of Ian Tomlinson during the G20 protests in the City of London on 1 April. While we appreciate a fair and thorough investigation takes time, Ian's grieving family has been left in limbo for a year waiting for a full explanation about the circumstances of his death. There is now very real concern as to whether the Crown Prosecution Service (CPS) proposes to charge anyone in respect of the assault and death of Ian.
The CPS has been in possession of the provisional Independent Police Complaints Commission investigation findings since August 2009. We understand that these findings, at least in part, will provide the basis for a decision on whether to prosecute anyone for Ian's death. We also note that the director of public prosecutions said in a Guardian interview (21 September 2009) that he hoped the CPS would reach a decision "within a few months".
Delays in the investigation and charging decisions increase the suffering for families of victims leaving them unable to gain closure and move on with their lives. Families are greatly concerned not to prejudice the process and are therefore effectively silenced from expressing their views publicly about the death of their loved one. They are desperate to ensure any potential future legal proceedings are not undermined nor an excuse found to abandon any cases that might be brought. The Tomlinson family has endured a year of public scrutiny unable to respond to questions about Ian's death, with little they can do but wait for the outcome of a decision. The delay however is now intolerable.
The policing of the G20 protest caused widespread public concern around use of excessive force by police officers. Proceedings against many protestors arrested on the day, as well as a number of reviews and investigations into the events of the day, have all been concluded. In the case of Ian Tomlinson, there is a heightened need for the statutory investigating body to be seen to be carrying out justice in a robust, transparent and timely manner to address public confidence. One year later the public, like the Tomlinson family, are still left with unanswered questions about how and why Ian died at the G20.
In the absence of any updates from the CPS, we have growing concerns about the investigation into Ian's death. There has been a complete lack of communication and transparency about the delay into concluding the investigation into Ian's death that calls the CPS's credibility into question.
As we have already set out, we do not wish to prejudice any investigation or potential proceedings but believe that either a decision or public explanation is due. We call on the CPS to fulfill its public duty regarding the investigation into the death of Ian Tomlinson.
Julia Tomlinson, Ian Tomlinson Family Campaign
Estelle du Boulay, Newham Monitoring Project
John McDonnell MP
Dr Caroline Lucas MEP
Jean Lambert MEP
Bob Crowe, RMT
Mark Serwotka, Public and Commercial Services Union
Shami Chakrabarti, Liberty
Deborah Coles, Inquest
Vivian Figueiredo, on behalf of the family of Jean Charles de Menezes
Samantha Rigg-David, on behalf of the family of Sean Rigg
Penny Green, professor of law and criminology, King's College London
Samantha Patterson, sister of Jason Mcpherson
Terry Stewart, The Friends of Blair Peach
Jenny Jones, Green party Metropolitan Police Authority member
Peter Herbert, Society of Black Lawyers
Cllr Duwayne Brooks, Liberal Democrat for Downham Ward
Pete Firmin and Andrew Fisher, Labour Representation Committee
Darren Johnson, Member of London Assembly
Frances Wright, Camp for Climate Action
Val Swain and Emily Apple, Fit watch
Pragna Patel, Southall Black Sisters
Sukhwant Dhaliwal, Women Against Fundamentalism.
Christine Shawcroft, Labour Briefing
David Rosenberg, Jewish Socialists' Group
Patrick Ward, United Campaign Against Police Violence
Estella Schmid, Campaign Against Criminalising Communities
Professor Gargi Bhattacharyya, sociology and public policy, Aston University
Councillor Romayne Phoenix, London Green party campaigns co-ordinator
Joseph Healy, Green party regional councillor for London
Andy Hewitt, co-chair of the Green party trade union group
Teresa Delaney, co-chair of the Green party trade union group
Frances Webber, human rights lawyer
Harriet Wistrich, solicitor at Birnberg Peirce
Ronan Toal, barrister, Garden Court Chambers
Hossein Zahir, barrister, Garden Court Chambers
David Watkinson, Garden Court Chambers
Anya Lewis, Garden Court Chambers
Richard J Harvey, Garden Court Chambers
David Emanuel, Garden Court Chambers
Yasin Patel, 25 Bedford Row Chambers
Rajiv Menon, Barrister, Garden Court Chambers
Professor Mick Ryan, former chair of Inquest
Zoe Mercer, When No One is Watching Campaign
Dr Emma Williamson, Research Fellow, Centre for Gender and Violence Research, University of Bristol
Professor Phil Scraton, Queen's University, Belfast
Dr Sacha Darke, senior lecturer in socio-legal studies and criminology, Department of Social and Historical Studies, University of Westminster
Mohan Ambikaipaker, University of Texas
Yasmin Khan, War on Want
Camilla Graham Wood
Alastair Morgan
Doctor Sheila Preston
Nick Moseley
Zareena Mustafa
Jill Phillips
Guy Williams
Simon Mercer
Lochlinn Parker
Sally Stanton
Jack Gordon Harris
Rachael Horner
Chris Heatley
David Mery
Sam Walton
Fiona Harrington
Bruce Benjamin
The CPS was already considering whether to press charges at the time of a candlelight vigil last December.
Update:The DPP has published a statement regarding CPS decision on the death of Ian Tomlinson:
I readily accept the responsibility of the CPS to fulfil its duty regarding the investigation into the death of Ian Tomlinson. That investigation must be thorough, effective and impartial. And, I am afraid, in this particular case that means that it is taking longer than originally expected.
As we have previously explained, the CPS and the IPCC are currently trying to obtain some further information. This relates to the expert medical evidence which is crucial to the proper determination of this case. Both the CPS and the IPCC are working as quickly as is compatible with a careful investigation in this difficult and complex case.
But I acknowledge the frustration and anxiety that Mrs Tomlinson must be experiencing. In the circumstances, I will be writing to her privately today.
Keir Starmer QC, Director of Public Prosecutions
The Guardian's coverage of the G20 protest anniversary includes comments of the New York banker who shot the video of Ian Tomlinson being assaulted by the police: 'My motive was and remains to aid truth and closure for the family, though in hindsight it has become much more than that. As the press coverage went on following the Tomlinson incident, it felt more and more clear that the circumstances of the death were being covered up. Given a few weeks, Mr Tomlinson would have become another tragic footnote and then forgotten. His family deserved more than that.'
The BBC has a detailed report of this morning's vigil. (See Harpymarx for a more illustrated report.) The news article concludes with an interview of Samantha Rigg-David, whose brother Sean Rigg died in police custody in Brixton, in August 2008, commenting on the 'need to bring about a prosecution for one reason in particular: "It will show police officers that they aren't above the law."'
First published on 2010-03-31; last updated on 2010-04-01.
The Home Office sent a letter to MPs sitting on the Committee
scrutinising
the Crime
and Security Bill 2009-10 describing five case studies allegedly
supporting their arguments for retention of the DNA profiles of
innocents. It turns out that two of these five cases studies are one
and the same! From the description of this letter by Shadow Home Affairs
Minister James
Brokenshire during
the Committee
stage, the error should have been easily spotted by anyone reading
the details of the letter and not just stopping at the number of cases
included. After the irrelevant Jill Dando Institute research based on
a few
days of data
and disavowed
by the Institute's 'you might as well just stick your finger in the
air and think of a number' director, the
ACRO research
that 'does not provide evidence to inform the length of any general
DNA retention period', the many cases mentioned where retention of the
individual profiles
made no
difference, comes the duplicated case in a document describing
only fivefour cases:
James Brokenshire: The hon. Gentleman makes a fair point about the interrelationship between other evidence, other more general policing issues and the data that might be available. [Interruption.] Before I give way to the Minister and my right hon. and learned Friend the Member for Sleaford and North Hykeham, I should like to refer to case study 5.
In 2006 a Dutch male was arrested on suspicion of robbery. This was investigated and his DNA was taken before he was released without charge. In 2008 that same male was further arrested for rape after being identified by the victim. The DNA crime scene samples taken at the time were found to match the suspect’s DNA profile, already held on the national DNA database, and he was later tried and convicted in court. Abdirahman Ali Gudaal was Dutch. He was arrested for robbery in 2006. He was said to have raped somebody in 2008. I therefore submit that case studies 1 and 5 are one and the same case. Could the Minister look into that? It seems strange that two Dutch people were arrested for robbery in 2006, committed a rape in 2008 and were subsequently convicted.
James Brokenshire: [...] Now that we have had our lunch break, is the right hon. Gentleman able to respond to a point that I raised in relation to the case studies that he cited in the letter that was handed to the Committee? He did not seem to disagree with my comment that case study 5 and case study 1 might be one and the same case. That is quite important because obviously the letter has been put before the Committee. The facts in case study 5 are quite limited, and I made my assumption based on the limited facts. I do not know whether the Minister has sought clarification over the lunch break. Perhaps he can respond on that point.
Mr. Hanson: I will happily cover that point now, in an intervention. Having checked the matter, I can say that case study 1 and case study 5 are the same case. One reason why there is some difficulty is that we have been seeking to ensure that we get victim approval when victims’ names are put into the public domain. Every name that I have mentioned in my contributions has had the victim’s approval of it being put into the public domain. There was some confusion over those cases. I will clarify the matter if necessary by letter for the Committee, but we have many more cases that we have permission to use, and I will do so during the debate.
Deliberate misleading or incompetence? The Home Office must be pretty desperate.
A correspondent, who also went through the
process of complaining to the Independent Police Complaint Commission
(IPCC), suggested on several occasions that I request my IPCC case
file by sending a Data Protection Act subject
access request. I followed his advice and I sent a request on 2009-11-04.
The act specifies that the organisation must respond within forty days,
however the IPCC has only two staff dealing with all the Freedom of
Information and Data Protection requests they receive, and obviously this
means requests can end up delayed. The IPCC press
office contact page lists six phone numbers indicating that the
budget to manage information they want to make public must be much
bigger than that for the department providing information that people
do want and ask for. (Heather Brooke found that police 'forces spend nearly ten times more on PR (what police want us to know) than on FOI (what we want to know).')
The request was completed today. I received two bundles of A4 pages each stapled in the top left corner : one approximately 21 mm thick of 'documents received by the IPCC from the Metropolitan Police Service', and the other, 16 mm thick, composed of IPCC correspondence and some more MPS documents. The cover letters explain that these are all the documents that 'you are entitled to receive under the provisions of the Data Protection Act contained in your IPCC case'. 'The documents have been redacted under section 7(4)(a) of the Data Protection Act' and documents containing legal advice are not included as 'these documents are exempt from disclosure under schedule 7 paragraph 10 of the Data Protection Act 1988.' The amount of redactions means someone must have spent days blacking out the documents. Some of the redactions are over-zealous. For instance some of the questions the officer who conducted the search of our flat asked my wife are redacted in his witness statement but included in the copy of his scene notes. There are no page completely blacked out, but there are pages obviously missing, possibly because they've been entirely redacted.
Many documents I had not seen. Some make for very interesting reading, especially the statements my solicitor tried to obtain in vain during our civil action against the police. Here are a couple of highlights spotted in the little time I've spent so far browsing through.
Below are a few extracts from the statement of a DS. This transcript is 49-long with page 1 and 49 missing.
[...] get a phone call to say man coming in for terrorism, suspected terrorism. [...] He's been arrested for public nuisance, I said 'he should be arrested for terrorism then'. I was told that the Superintendent doesn't want terrorism on the custody record in case it frightens people. Go in there, see the fella standing at the counter speaking to the PS, officers are giving the facts for public nuisance, custody officer accepts the facts, my remit was is this man a terrorist. It was said to me then that Mr Mery should have his clothing taken, white suit and hands bagged, all the things, I said 'he needs to be arrested for terrorism then'. [...]
Uniformed officers who brought the prisoner back, they told me that this was the case and he was a suspected terrorist and they were using public nuisance to bring him in. [...]
I was told by uniformed officers who briefed me that that's what we should be doing [seizing clothing] and I said 'well let's arrest him for terrorism, take him to Paddington Green and call out SO13 [the Anti-Terrorist Branch]'. They said the Superintendent doesn't want that, so I said, I made the decision, 'well we're not seizing his clothing, [some words redacted] If they had been interested in him, they would then have said, 'let's go'. Soon he was brought in, done that, placed in a cell. [Rest of paragraph redacted]
[emphasis added]
That's the first time I realise how close I have been to have been bundled up to Paddington Green police station. Another statement below, worth retyping in full, shows that during the IPCC supervised enquiry, the Met fully realised their errors. Unfortunately the investigation report did not acknowledge these findings, necessitating two more years of fighting before eventually getting a formal apology.
Statement of [redacted]
Police Officer [redacted]
Signature: [missing]
Date: [missing, but most likely end of 2006 during investigation by the the Met's Directorate of Professional Standards]
I have been asked to review the custody record and CRIS reports relating to the arrest of David Mery on the 28th of July 2005.
CUSTODY RECORD
Opened by PS T.
The reason for arrest is given as 'Causing a public nuisance. Caused a major evacuation of three mainline railway stations after his deliberate actions caused police to believe he had explosives'. This is not borne out by any of the evidence presented by the officers. There are grounds for stop and search but I can see nothing to substantiate the deliberate actions, the closure of the underground network and evacuation were the decision of the police and not caused by the suspect.
The legal database quotes the offence as: -
A person is guilty of the offence if he/she
(a) Does an act not warranted by law, or
(b) omits to discharge a legal duty,The reason for detention is given as to obtain evidence by questioning.
Item 2 on the front page indicates that Mr Mery made no comment when the facts of arrest were explained, however the first entry in the custody log of events at 21:08 is a comment made by Mr Mery. This has been correctly endorsed and signed.
The second entry is timed 21:53 stating that Mr Mery arrives in custody handcuffed, there is no explanation for the time gap between these two entries but it may be that all of the normal booking in procedures were completed before this entry was made.
A request for someone to be informed of his arrest is recorded at 21:53 and given at 22:09.
At 23:00 Inspector L authorises a Section 18 PACE search of the home address, I cannot read the handwriting giving the grounds or nature of the evidence sought. S.18 PACE gives police the power to search for evidence relating to that offence or a similar offence, as the suspect had aroused suspicion by his dress and demeanour it is hard to understand what further evidence could be obtained from a search. Also the only reason recorded for his detention was to interview.
The first review of detention was due at 02:57 but was not carried out until 04:20 with no explanation as to why it was delayed, but as interview started at 03:06 this could be the reason.
At 04:27 Mr Mery was released on bail to return on the 31st August 2005 at 09:00, the reason given on the circumstances page was 'Forensic checks on his computers and CCTV needs to be viewed'
There is no mention on the custody record of what happened on the 31st August 2005 when Mr Mery was due to return to answer his bail. The custody record should have been updated with details of a rebail or disposal.
The activity log does not show anything for the day.
[3 paragraphs redacted] There is no record that any of Mr Mery's property has been restored to him. It would appear from the nature of the items marked that they were restored to Mr Mery on his release on the 29th July 2005 [they were restored on 2005-10-13].
[3 paragraphs redacted] the OIC [officer in charge] must complete form 60C bail cancellation notice and send it to the Mr Mery. OIC should also inform the custody officer of the decision so that they can close the record. According to the custody record activity log none of these things happened until the 5th of October 2005 when the custody record was opened and the bail record cancelled. On the 13th October 2005 the form 60C was printed along with the property sheets 57G and H.
[1 line redacted]
The circumstances of finding states that the items were "Left at above location following call to suspect package and susp person" The above location being Southwark LT [London Tube] station. This is completely at odds with the evidence provided by the arresting officer who states that an officer removed the rucksack from Mr Mery and then moved it away from him in the underground station.
CRIS [Crime Report Information System] REPORT 3029675/05
The allegation is recorded as 'Bomb Hoax' this is incorrect and should have been corrected. A bomb hoax requires the dispatch or placing of an article or communication of false information, none of these things happened. Mr Mery was arrested for causing a public nuisance, not causing a bomb hoax.
The crime is screened in as a suspect has been arrested but then the report is "No crimed" the next day with no reason given, the no crime is confirmed on the 5th of August 2005.
The method shown on the classification page is "The suspect evaded officers at an underground station, causing a major terrorist incident alert. Thus causing a public nuisance" this is misleading and not borne out by any of the evidence provided. [Entering a closed space, such as a tube station, with lots of police officers around, but not looking at them is 'evading officers'!]
DS B records the results of the S.18 PACE search and the interview of Mr Mery following a briefing from DS W. He notes that there was no evidence visible of causing a public nuisance but the computers will have to be examined. He also records the fact that Mr Mery was bailed to 31st August 2005 so that the computers and CCTV could be examined.
Although DS W was assigned the case at the time of arrest on the 28th July 2005 the CRIS was not allocated to him until 28th September 2005 and he did not acknowledged this until the 4th of October 2005.
[1 paragraph redacted]
In light of this and the account given in the interview he believes that Mr Mery's action do not amount to an offence, he considers this suitable for no further action [NFA]. This has been discussed with DI C.
There's no separate entry from DI C confirming the NFA authorisation.
There's no mention of any forensic analysis of the various items of computer equipment that were seized from Mr Mery nor of the viewing or seizure of the CCTV evidence from Southwark Underground station, both of which were given as the reason for Mr Mery bail to return.
There's no mention of what happened on the 31st of August when Mr Mery returned on bail.
On the 14th of October DS W makes an entry in the DETS [‘Details of the Investigation” section of a crime report] page to show that Mr Mery has attended with his legal rep and has had his property restored. There is no record of the property being restored or signed for on the custody record property receipts.
[1 line redacted]
CCTV EVIDENCE
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.
[2 paragraphs redacted]
CONCLUSION
In my opinion Mr Mery's actions at the underground station were reasonable grounds for the stop and search of him and his bag. The fact that officers at the scene made the decision to elevate this to a full evacuation and closure of the rail network in order to have the bag examined by explosive officers was one for them and should have been recorded elsewhere.
I do not feel that the court would accept that to walk into the tube station as a dark skinned male wearing a baseball cap and a heavy jacket carrying a rucksack and stand on the platform would constitute an unlawful act. The reaction of the police officers caused the disruption to the public and is understandable in the circumstances; to make it the fault of Mr Mery is not.
Given that the reason for detention was to obtain evidence by interview this should have been done as soon as possible so that Mr Mery could account for his actions that were observed.
There is no mention as to what evidence it was hoped would be obtained from the forensic analysis of the various items of computer equipment seized from Mr Mery and his home address, however it is at odds with the fact that it appears that a USB memory stick and an I-Pod were restored to him on his release without being submitted for forensic examination, both being large digital memory storage devices.
None of the property on the custody record has been signed for when restored either at bail stage or at the finalisation of the case.
[1 line redacted]
The CRIS report should not have been no crimed as there was a suspect on bail and further lines of enquiry had been identified.
[2 paragraphs redacted] before Mr Mery was due to return to answer his bail.
[2 paragraphs redacted]. Having decided to NFA the matter Mr Mery should have been informed of his bail being cancelled [several words redacted] NFA letter to inform him of the reason and to arrange for the restoration of his property. [Rest of this paragraph redacted]
The custody record should have been opened on the 31st of August 2005 to record what happened and whether a new bail date was set or the case the case is NFA'd. From Mr Mery's statement he was told on the 31st August 2005 that the matter was NFA's but no paperwork was served nor was the custody record updated.
[emphasis added; name of the officers anonymised; some obvious typos corrected when retyping this statement, some possibly added]
Other threads apparent in these documents include the news that, though the Met claims never to have obtained the CCTV footage, the British Transport Police did request it the next day (I never received a substantive answer to the subject access request I sent them on 2005-08-31); how my normal usual behaviour, termed 'eccentric' by one officer, is what many couldn't accept as normal and hence had to be suspicious; how some of the police actions and decisions appear to be media-driven... Topics to be explored further on the blog.
The IPCC still has to inform me on its retention policy, i.e., when my case file will eventually be deleted.
On a cold evening last week I went to the London Action Resource Centre to be interviewed by Chickpea for Dissident Island Radio. We talked for an hour about my arrest, how to get off the national DNA database, stop and search and other aspects of policing in London. The hour went by very fast and we only covered a few of Chickpea's very good questions and part of what I had prepared. This interview has been edited down to about 20 minutes and will be streamed tonight as part of the 52nd live edition of the programme. Chickpea was also going to interview Pennie Quinton, the film maker who was stopped and searched, under Section 44 of the Terrorism Act 2000, in 2003 close to the Defence Systems and Equipment International Exhibition and eventually won a European Court of Human Rights judgment (though the Home Office has indicated it will likely appeal). Here's what's scheduled for tonight:
On the show this week we have with us a motley crew of dissidents. Two people who've fought 'The Man' and won respect for their rights talk to us about stop and search and DNA retention as well as the broader assault on our civil and human rights.
Our Northern correspondent has swung into action and grabbed us some words from SAEAB about all things animal rights in Bradford including their upcoming days of action. We'll also have words about the Stop the Traffic campaign and their plans for the UK's biggest traffic jam and how you can help.
With us live in studio we will have some spoken word madness from Pete the Temp and another in our series of DJ sets from Sasquatch and his friends at Senseless Records.
Tune in live tonight from 9pm till late or subscribe to the podcast. Live shows are on the first and third Fridays of every month.
Update: The 'Fighting the law, and winning' audio is now available on Dissident Island Radio and my full interview is available on London Indymedia.
Note that there are more DNA profiles on the database than was mentioned in the live programme. From the NDNAD annual report: 'At 31 March 2009, 5,617,604 subject profiles were retained on the NDNAD [...] it was estimated that approximately 13.5% of subject profiles held on the NDNAD were replicates. The number of different individuals represented on the NDNAD [...] was approximately 4,859,934 (for all UK forces).'
One issue we didn't have the time go into much detail is the racial bias of the NDNAD. As it happens, Black Mental Health has just launched a petition to raise awareness of this very issue on the Number 10 website.
First published on 2010-02-05; last updated on 2010-02-08.
The Home Office ran a review on the Police and Criminal Evidence Act (PACE) from 2008-10-13 til 2008-11-28. One of its proposals is about police use of short term holding facilities (STHF) located in shopping centres or town centres to detain suspects in order to take their fingerprints, photograph and DNA samples. A summary of responses to this specific proposal would be useful in the context of the current parliamentary debates and committees' investigations into the measures of the Crime and Security bill.
For some unstated reason, the responses to this consultation appear to be extremely difficult to summarise! Here's the 'What's new' section of the PACE Review consultation progress page as it was first created in July 2009:
What's New
10 July 2009
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.
In September 2009, I queried when the Home Office was realistically expecting to publish these summaries. The Policing Powers and Protection Unit (PPPU) of the Home Office responded that '[t]he draft document is currently being considered by the PACE Review Board and we will look to publish as soon as possible.' The website was then silently updated:
What's New
10 July 2009
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 autumn.
Earlier this month (January 2010), I queried the Home Office, again, about the publication of these summaries and was informed that '[t]he Summary of responses is currently with Ministers and PACE Strategy Board Members. As soon as we have received feedback on the document we will make it available on the Home Office website. In the mean time I will ensure that the website is updated to reflect the delay.' Last week, the page was silently updated:
What's New
10 July 2009
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 in early 2010.
A Freedom of Information response revealed that 187 organisations and 18 individuals responsed to this PACE Review consultation. Of the twelve Home Office consultations for which I received data, it's only in seven position for the total number of respondents, so nothing that should overwhelm the Home Office. With more than twice the total number of respondents, it took just three months to publish the summaries of responses for the Keeping the right people on the DNA database consultation (which closed eight months later).
It is awfully nice of the Home Office to update its website every time I contact them about this consultation. It's curious that they're so forgetful about updating the date of the what's new section. It would, however, be even more helpful for the summary of responses to emerge from the reviews by the PACE Review Board, the PACE Strategy Board, the Ministers, etc. and get published for all to read.
Update: the Home Office has eventually published a Summary of responses to the public consultation on the Review of the Police and Criminal Evidence Act 1984 (PDF). The document is dated March 2010. Its Annex A contains six pages of proposed legislative changes. Among these, a draft guidance about the Short Term Holding Facilities will be circulated in Spring 2010; 'Proposals to arrest [and obviously take a DNA sample] without warrant, detention, transportation and bail between home jurisdictions' are 'Awaiting a suitable legislative vehicle'. The PACE Review consultation progress page has not yet been updated and still displays its July 2009 news.
First published on 2010-01-25; last updated on 2010-03-05.
On one of his blogs, professional photographer Peter Marshall neatly summed up the experience of too many when taking photographs in public places in the UK with the call to arms:
If you’ve got a camera, use it. Otherwise soon you won’t be able to.
This Saturday, the campaign I'm a photographer, not a terrorist! (phnat) is calling everyone who values visual imagery, not just photographers, to a mass gathering at noon in Trafalgar Square in defence of street photography. (A few related posts: Stop'n'search gets touchy-feely, Hostile reconnaissance - no conviction yet but trials coming, Snap a copper and get ten years in the slammer - (mis)interpretations.)
Also on Saturday, London NoBorders is having two demonstrations on the theme of Life is too short to be controlled! The first one, at 2pm St. Pancras International, to protest against the e-Borders controls put up by the UK Border Agency. The second, at 4.30pm in Piccadilly Circus, is against the constant remote CCTV observation by security and police. (Some related posts: A web of indifferent watching devices, Missing CCTV footage - again, Sean Rigg - no justice, no peace, no CCTV footage.)
Update: Look at some pictures I took at the phnat and NoBorders demonstrations. Read Peter Marshall's excellent photo reports on the phnat and NoBorders protests. Read the NoBorders' report on London Indymedia and see the press clippings for the phnat gathering on Marc Vallee's blog.
First published on 2010-01-21; last updated on 2010-01-27.
The Home Affairs Committee was having another evidence session about the National DNA Database (NDNAD). This time, it was short as the committee had only two witnesses and they talked about their personal experience, so there was none of that litany of errors and misunderstandings that riddled the previous session.
Greg
Hands, a Tory MP, had his DNA taken when his 80-year-old uncle
died two months after he had been found at his home with a 14 inches
barbecue skewer in his neck. Mr Hands was not close to his uncle and
had never visited his home. He also had a very strong alibi as he was
in Parliament when it happened. He was not arrested and doesn't
recollect whether he volunteered his DNA sample or just didn't refuse
a request. It's not clear why it was necessary for the police to take
his DNA sample. More surprising is that according to Greg Hands, as
far as he's aware, the police did not have a DNA sample from
the crime scene. Even though the police didn't have a crime scene DNA
profile to compare the DNA profiles of the individuals sampled in
connection with this death, they travelled all over England to get
DNA samples from all the relatives of Mr Hands' uncle, including that
of old relatives who'd been incapable of using a skewer in such a
way. At the inquest, which returned an open verdict, the police
admitted it could have been a freak accident. Mr Hands asked the
chief constable of the West Midlands Police for his DNA profile to be
deleted and his DNA sample to be destroyed on several occasions, but
in two years didn't get satisfaction. He had more success putting
down a Parliamentary Question, a process only accessible to MPs. He
was told by the Home Office that his DNA profile had been removed,
but he still has not had any confirmation from the police and won't
be convinced until he gets confirmation of when it happened.
Jonathan Leighton, a computer science student in Oxford, had his DNA taken when he was arrested on suspicion of littering. At a protest against the expansion of a shopping centre he tried help an activist who had been in a tree for ten days by throwing him a bottle of water, but missed. When the bottle fell to the ground, a police officer rushed to arrest him. With the help of a solicitor, it took him close to a year to reach a settlement with Thames Valley Police (TVP) and get his DNA profile removed and DNA sample destroyed.
These cases are further evidence of the effort and expense the police go through to collect DNA of individuals, at a time when funding for what makes a provable difference in crime detection, getting more DNA profiles of crime scenes, may be cut. The police appears, at least in some cases, to be driven more by its willingness to add DNA profiles of individuals than by any other operational matter. This has been denied by the police, however a retired police officer wrote in a response to a Human Genetics Commission consultation that 'It is now the norm to arrest offenders for everything if there is a power to do so ... It is apparently understood by serving police officers that one of the reasons, if not the reason, for the change in practice is so that the DNA of the offender can be obtained: samples can be obtained after arrest but not if there is a report for summons. It matters not, of course, whether the arrest leads to no action, a caution or a charge, because the DNA is kept on the database anyway.'
The experience of these two witnesses was interesting, but hopefully the committee members realise that these two cases are exceptional as both witness did manage to reclaim their DNA. There was little more than an average of one DNA profile deleted a day in 2009; it was much less in the five preceding years.
From a brief chat after the evidence session, Mr Leighton is unsure whether his Police National Computer (PNC) record has been deleted as well. PNC records should be deleted at the same time as DNA profiles, fingerprints and palm prints happen are deleted, and DNA samples destroyed, under the current 'exceptional case procedure'. The government and the police are apparently keen to retain PNC records even when DNA profiles are deleted, hence the Crime and Security bill being silent about PNC records. Andy Handley, a photographer who also reached a settlement with TVP, after being unlawfully arrested for taking a picture from behind a police cordon, did 'receive notification from TVP that all records have been deleted including on the PNC'. The deletion of his DNA profile and fingerprints has been widely reported.
In related news, the Crime and Security bill had its second reading on Monday. Home Secretary Alan Johnson introduced the bill to a mostly empty chamber (as is common, MPs came in just at the end when it was time to vote). Most of the interventions were in opposition to the bill solely because of its clauses about the NDNAD. Ex-Home Office minister Tony McNulty MP and Tory David TC Davies MP were lone voices in support the Home Office current proposals; Labour Keith Vaz MP, Diane Abbott MP and Neil Gerrard MP all spoke out against the DNA clauses. The Conservatives were supportive of adopting a legislation similar to that of Scotland, and the Lib Dems favoured getting all innocents off the NDNAD. David Davis MP, in his interventions, mentioned several times the excellent submission to the Home Affairs Committee by GeneWatch UK and Unreliable evidence? Time to open up DNA databases, an article in the New Scientist questioning how many random probability matches really happen. The bill was 'read a second time' with 272 Ayes and 197 Noes.
Bootnote
If you're innocent and your DNA profile is on the NDNAD, find help to get off the NDNAD at Reclaim Your DNA. If you succeed, request a detailed list of what has been deleted and destroyed. You can check if your DNA sample, profile, fingerprints, palm prints, photographs, PNC record, etc. has been retained by sending a data subject access (Data Protection Act) to the police force that arrested you asking for any personal information you believe they may still have retained.
GeneWatch UK has published two excellent documents which should be on on the reading list of everyone with an interest in the government's plans for the National DNA Database. Below are the recommendations concluding the 5-page GeneWatch UK Parliamentary Briefing on the Crime and Security Bill (doc). This document is timely as the second reading of the bill has been tabled for this coming Monday.
The Human Genetics Commission (HGC) has recommended that the Government establishes a Royal Commission to “give focus to, and to learn from, the public debate, and to ensure that its outcomes will be taken forward and reflected in future framework legislation”. The HGC, Nuffield Council on Bioethics and others have recommended that the DNA Database be put on a statutory basis. However, the need to ensure that innocent people’s DNA profiles in order to ensure that the Database is compliant with the judgment of the European Court of Human Rights is also urgent. GeneWatch UK therefore recommends that:
- In the Crime and Security Bill 2009/10:
- The destruction of all DNA samples within 6 months is adopted;
- The provisions for retention of innocent people’s DNA are amended to implement automatic immediate deletion of most DNA profiles unconvicted persons, with an exception allowing temporary retention of DNA profiles and fingerprints for some persons arrested for serious or violent sexual offences, based on Scotland’s approach;
- The Bill is amended to ensure that Police National Computer (PNC) records are deleted at the same time as DNA profiles and fingerprints;
- Deletion of all records is applied retrospectively to all innocent persons on the relevant databases;
- The provisions relating to the expansion of DNA collection are deleted, pending review (see below).
- A Royal Commission is established with a view to putting the National DNA Database on a statutory basis. It considers:
- DNA collection, including whether this should take place on arrest or charge, or for a narrower range of offences; whether collection should apply retrospectively and/or to some persons convicted overseas; and whether there should be special provisions for children.
- Uses and restrictions on uses.
- Retention guidelines for convicted persons (including persons given cautions, reprimands and final warnings).
- Governance, including a process for appeal against retention of data.
The Commission’s proposals should be followed by a public consultation before further legislation is drafted.
The parliamentary briefing refers to the 26-page GeneWatch UK submission to Home Affairs Committee: the National DNA Database (doc). If you read Sorry Affairs Committee, my notes of the committee's last evidence session, you are aware that some elements of the evidence given were erroneous and that the committee members showed a poor understanding of the workings of the NDNAD and knowledge of the Crime and Security Bill. GeneWatch's submission is a clear and comprehensive document that addresses all these issues. Another evidence session is scheduled for this Tuesday. Below are excerpts to give you a taster:
[...] GeneWatch has consistently argued that new legislation governing the DNA Database could be adopted which significantly improves protection for human rights, is compliant with the European Court of Human Rights’ judgment on this issue, regains much of the loss of public trust in policing, and does not have an adverse impact on crime detection or prevention. [...]
Number of solved crimes
Chief Constable Sims, of the Association of Chief Police Officers (ACPO), stated in evidence to you that 33,000 crimes (0.67% of recorded crimes) had been solved last year “solely or largely by the DNA database”. This claim was reiterated by the minister. This claim is incorrect: it is a significant overestimate of the number of solved crimes. [...]
Thus we can estimate that, in 2008/09, 2006 direct DNA detections and 1660 indirect detections might have been lost or delayed if a DNA database of individuals’ profiles did not exist at all. Using the Home Office figure cited above, about half of these detections (1883) could be expected to lead to convictions. This is 0.033% of recorded crimes (Table 1), more than an order of magnitude lower than the figure provided to you by ACPO. Moreover, a high proportion of these crimes would be solved later rather than not solved at all because, provided the crime scene DNA profile is still stored, the same individual’s profile could be matched later if they are arrested or charged on suspicion of committing another future crime. It should be noted that the vast majority of these will be volume crimes such as burglary and theft (discussed further below).
Solved crimes due to retaining innocent people’s DNA profiles
[...] We can therefore estimate that somewhere between 40 and 200 convictions may have resulted from the retention of DNA profiles from innocent people in 2008/09. It should be stressed that this is very much an estimate, due to uncertainty in the figures provided by the Home Office and gaps in information. Most of these convictions would relate to volume crimes (only 1% of DNA detections relate to rapes and 0.4% to murder/manslaughter, see below) and most detections would be delayed rather than lost because, provided the crime scene DNA profile is stored, the DNA match will occur if the individual is arrested or charged with another offence in the future. This figure includes both direct and indirect detections. [...]
Impact of changes in legislation on DNA detections
[...] Thus, the available data allows us to conclude that neither the Criminal Justice and Police Act 2001, nor the Criminal Justice Act 2003 have led to a noticeable increase in the number of crimes detected using DNA, despite a massive increase in the number of individuals’ DNA profiles that have been collected and retained. In contrast, the policy decision to collect DNA from scenes of volume crimes, such as burglaries and thefts, has been successful. This is because the number of crimes detected is driven primarily by the number of crime scene DNA profiles loaded, not the number of individuals’ profiles loaded or retained. [...]
Role in volume crimes and breakdown by crime type
Chief Constable Sims stated that 40% of burglaries were solved using DNA. This is incorrect. [...]
Role in murder and rape
In his evidence, Chief Constable Sims claimed that 83 murders and 163 rapes had been solved in 2008/09 by the DNA database. He also stated that the DNA database plays a much more significant part in solving serious crimes than it does in volume crimes. Both claims are incorrect. [...]
GeneWatch UK has been unable to identify any murders that have been solved as a result of the retention of innocent people’s DNA profiles since 2001. We have examined every Parliamentary Question on DNA since 2005, all published reports, and the Government’s evidence to the European Court of Human Rights. A figure of zero solved murders to date as a result of retaining innocent people’s DNA profiles is consistent with our statistical analysis.
In total, five rape cases have been cited by the police as having been solved due to the retention of an innocent person’s DNA profile (these are described further below in the section on Scotland’s legislation). One of these was a cold case which could have been solved more rapidly if old crime scene DNA evidence from serious cases was analysed more promptly (this is also explained below, in the section on cold cases). The other cases may be addressed by a targeted approach, similar to Scotland’s legislation. Our statistical analysis suggests that these are probably the total number of solved rapes that involved the retention of an innocent person’s DNA profile, not a subset of a much larger number of crimes. It seems likely that considerably more crimes involving violence against women could be prevented or solved if the money spent on expanding the DNA database was spent differently (see the section on costs, below).
Misleading claims about the figures for murders and rapes
A long series of misleading claims have been made by ministers, including the Prime Minister, about the number of murders and rapes solved due to retaining innocent people’s DNA profiles on the Database. [...]
Misleading claims about individual cases
The minister cited the Wright case in the Westminster Hall debate held on 9th December 2009, and it was used in cross-examination by Committee members as an example of a case that was solved as a result of the retention of an innocent person’s DNA profile on the DNA Database. This case (and many other high profile cases cited by ministers) did not rely on the retention of an unconvicted person’s DNA. [...]
Home Office Research
The minister stated in evidence that research commissioned by the Home Office had shown that innocent persons whose profiles will be retained on the DNA database for six years had been shown to have a greater risk of offending than the general population. This is not the case. [...]
Link to Police National Computer Records
[...] For innocent persons on the DNA Database, the provisions in the Crime and Security Bill 2009/10 are worse than the current ‘exceptional cases’ removal procedure followed by Chief Constables, because records of arrest on the Police National Computer (PNC) will be retained indefinitely. Retention of these records gives rise to stigma and discrimination and can lead to refusal of a visa or a job. [...]
Racial bias
The minister claimed that the proposals in the Bill would have neither and an adverse nor a positive effect on disproportionality and that the answer to this problem lies elsewhere. This is incorrect. [...]
The decision not to include deletion of Police National Computer (PNC) records at the same time as DNA and fingerprint records in the Crime and Security Bill 2008/09 will have a particularly negative impact on members of black and ethnic minority communities who are disproportionately represented on these databases. It is the PNC record that the police use when they ‘name check’ someone, and which can lead to stigma and discrimination, including refusal of visas or a job. [...]
Priorities and costs
The minister stated that no assessment of cost-effectiveness of expanding the DNA database compared to other approaches had been carried out. This is one of the few claims that is correct. [...]
We noted above that the cold case review of serious crimes has solved many important cases, but that this may be axed due to lack of money.40 In GeneWatch’s review, cold case reviews should be prioritised, since obtaining crime scene DNA profiles from these cases could continue to produce important benefits for victims and their families. This may include the exoneration of innocent persons (who, as explained above do not need to have their DNA profile on a DNA database, but do need the crime scene DNA profile to be available). The more quickly this is done, the better. [...]
False matches and data sharing across the EU
[...] Neither the minister nor the police discussed concerns about the increasing likelihood of false matches between crime scene DNA profiles and stored individuals’ profiles. There is significant concern within the Home Office and amongst forensic scientists about the potential for false matches to occur once sharing of DNA profiles across the EU beings in 2011, as a result of an extension of the Prüm Treaty Europe-wide. [...]
Threshold for arrest
The minister stated that the threshold for arrest is high and that “we are talking about serious offences”. This is not the case. [...]
Volunteers
The minister urged Committee members to consider amending the Bill to allow the inclusion of volunteers on the DNA Database. PACE was in fact amended to allow the inclusion of volunteers on the Database by the Criminal Justice and Police Act 2001 and 36,093 profiles on the database are estimated to have come from volunteers. [...]
Get GeneWatch's submission to the Home Affair Committee and its parliamentary briefing, from its web page on the Crime and Security Bill 2009.
The illegal prison camp at
Guantánamo Bay opened on 2002-01-11. Today, eight years later,
there are still 198 persons detained. President
Obama pledged
to close down the camp by 2010-01-22; this deadline will not be met
next week.
A demonstration organised by the London Guantánamo Campaign was held today outside the US embassy to commemorate this eigth anniversary, and to call for liberty and justice for prisoners held in Guantánamo Bay and to close down the detention facility there. Read the excellent photo-reportage by Peter Marshall published at Indymedia and, with more pictures, on his My London Diary site. (The picture in this post is from his report).
To find out details of the 779 prisoners held at Guantánamo since the prison opened eight years ago, check out Guantánamo: The Definitive Prisoner List (Updated for 2010), the authoritative work by Andy Worthington.
Some actions you can take: write to your MP and to David Miliband, Foreign Secretary to put more pressure on the Foreign Office to demand the return of Shaker Aamer, a Saudi national who was resident in London, and of Ahmed Belbacha, an Algerian asylum seeker who was living in Bournemouth. Neither man has been charged or tried. Encourage your friends in other European countries to lobby their governments to provide homes to those still detained in Guantánamo.
Innocent detainees, the majority, must be released to safety as soon as possible, and the few who have been charged must have a speedy trial (although it may be difficult for them to receive a fair trial after the years of abuse they have suffered and if 'evidence' obtained from torture is introduced).
First published on 2010-01-11; last updated on 2010-01-12.
On Tuesday, the Home Affairs Committee was taking evidence on the National DNA Database (NDNAD). Unfortunately, this was a sorry show of how politicians work. The committee members showed an poor understanding of the NDNAD and of the Crime and Security bill. This was exemplified even before the start of the proceedings in the one page leaflet present on the chairs in the room where the evidence session was held at Portcullis House:
Today's evidence session–The National DNA Database
This is a one-off evidence session. The purpose of the session is to examine the allegations of over-representation of young black people on the National DNA Database, and in particular to inquire why the police think it necessary to retain samples [sic] from those never charged or subsequently found not guilty of any offence.
The proposed plan is to destroy DNA samples after DNA profiles have been produced and no later than six months after they were taken. The debate is about the retention of DNA profiles of innocents. The DNA samples are the buccal swabs (or sometime hair) taken at arrest containing the full genome of individuals. The DNA profiles are a series of 20 numbers produced from the analysis of DNA patterns (from what is today considered non-coding regions of the genome) of one of the sample. DNA samples are kept in fridges in the forensic labs contracted to do the analysis, while DNA profiles are held in the National DNA Database. For more on DNA profiles see Information retained in the National DNA Database profile records. The prompt destruction of the DNA samples is the one measure that everyone, but the forensic labs (who are paid to maintain the freezers), is happy with.
This confusion between samples and profiles was common, however it is rather inoffensive as one can usually guess what is it that is talked about solely from the context. A much more embarrassing confusion was between the loading of DNA profiles on the NDNAD and the retention of these profiles. A clear understanding of the difference between the two is essential to review the proposed legislation. The government has helped create this confusion by regularly highlighting examples of horrific crimes solved where a criminal was identified when his DNA profile matched, just after it was loaded on the NDNAD, that of an earlier crime scene, and then using that anecdote as a justification for the retention of DNA profiles. When matches happen as the DNA profile is just loaded on the NDNAD, retention is irrelevant.
For instance, Mark Dixie, convicted for the murder of Sally Ann Bowman, was identified when, following his arrest for a pub brawl, his DNA profile was uploaded to the NDNAD and matched that recovered from the murder scene. This case can be used to justify the taking of DNA at arrest, but is irrelevant in a debate about retention of DNA profiles. (Ironically, this case also illustrates that retention of the DNA profile of an innocent, Kevin Reynolds, was not used to eliminate him immediately from the investigation.) During the evidence session, David Winnick MP mentioned the case of Steve Wright several times. What no-one explained, unfortunately, is that this case didn't rely on DNA evidence at all to identify this murderer. Steve Wright was linked to the five Ipswich prostitute murders during the investigation, not by his DNA, but by his car figuring in CCTV footage in proximity to several victims. Liberty has debunked the reporting of some of these cases, including those of Dixie and Wright.
The NDNAD Annual Report 2007-09 explains that:
The average match rates between crime scene and subject profiles when:
- a crime scene profile was loaded to the NDNAD during 2008/09 was 58.7%
- a subject profile was loaded to the NDNAD during 2008/09 was 2.3%.
In most cases, what is useful is the check against unsolved crimes for which DNA has been recovered when the individual's DNA profile is loaded, the further retention of the DNA profile is of little help. In a recent post, Home Office gets DNA database funding priorities wrong, I explored this further.
Leaks or stitch-up? 0.67% or 0.36%?
After a question is answered, Keith Vaz MP, the Committee's chairman turns to the MP whose question is next. Chief Constable Chris Sims, the Association of Chief Police Officers' (ACPO) lead on the NDNAD revealed that he had received the list of questions he was going to be asked, the previous day:
- Chis Sims: Sorry, we're jumping to the last question?
- Keith Vaz: Have you had a list of questions?
- Chis Sims: I have, yes, is that wrong?
- Keith Vaz: It is unusual.
- Chis Sims: Oh, I do apologise.
- Keith Vaz: How did you get them?
- Chis Sims: It's arrived in my email system.
- Keith Vaz: Right, how extraordinary!
- Chis Sims: How extraordinary!
- Keith Vaz: Do you know who sent them to you?
- Chis Sims: I could find that out, I've no doubt.
Keith Vaz MP appeared shocked. Not being familiar with the working of these committees, it is unclear whether his apparent surprise at this unusual revelation was genuine or for the records. Without Chris Sims' blunder, I would not have even known the questions were prepared before the session, especially from the apparent lack of preparation of the MPs on this topic. From their answers, it was obvious that Diane Abbott MP and Isabella Sankey, Policy Director, Liberty who were first to give evidence, had not been given sight of the questions.
Some MPs were trying to find out how useful the NDNAD is and whether money spent on it could be more useful for other policing activities. This lead Chris Sims to state that 33,000 of the 4.9 million crimes the police recorded last year were solved solely or largely because of the DNA database. At Keith Vaz MP's request, committee's staff helpfully calculated that this represented 0.67% of the recorded crimes – negligible was the general reaction. Chris Sims, helped by Gary Pugh, Chair, NDNAD Strategy Board, added that DNA matches play a much more important role in solving certain type crimes. That the percentage was around 40% of for burglaries. These figures have been widely reported, without any questioning, by the press.
Based on the official data on recorded crime (Table 2.04
of Crime
in England and Wales 2009/09) and on the NDNAD (Tables 2 and 3
of NDNAD Annual
Report 2007-09), it is easy to find that these numbers don't add
up. The mention of 4.9 million recorded crimes shows that Chris Sims
was referring to 2007/08. As data is also available for 2008/09, I've
made the calculations for both years! The second number mentioned,
33,000 crimes solved as a result of a DNA match, doesn't seem to be
correct [see update below]. The number of matches for that year was slightly higher,
however number of matches are not very interesting in this
context. 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'. More interesting is the
number of detections where a DNA match was available. In these cases,
the crimes has been solved. Even then, it does not mean that it is
the DNA match that helped solved the crime. As can be seen from the
tables below, even when you look at the much larger, but not much
relevant, number of matches, it is nowhere near 40%.
Update: An attentive reader pointed out that '[t]he 0.67% is because they have included "indirect" detections (e.g. extra crimes that the suspect confesses to after a DNA detection with the first crime). The main problem with this figure is it is NOT the number of detections made due to their being a database, only a minority of these detections would disappear if there was no database of individuals at all (let alone if you only took innocent people off).' The figure for total DNA-related detection – DNA detections and additional detections – was 33,034 (0.67% of recorded crimes) in 2007/08 and 31,915 (0.68% of recorded crimes) in 2008/09. (The NDNAD Annual report doesn't even bother to break down these numbers by types of crime).
What the committee should have found out by itself when preparing for this evidence session, what Chris Sims should have answered, and what journalists should have written, is that 17,463 crimes (0.37%) of the 4.7 million crimes the police recorded in 2009/09 were solved in which a DNA match was available.
GeneWatch UK had been highlighting this percentage for a long time and found that '[s]ince April 2003 [to 2006], about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA [as a percentage of recorded crimes] has remained constant, at about 0.36%.' As explained in an earlier post in more details, this data shows that retaining DNA profiles of individuals indiscriminately does not help solve crime.
| 2007/08 | Recorded crimes | Crimes
with a DNA scene-subject match |
Detections
of crimes in which a DNA match was available |
||
| Homicide | 784 | 363 | 46.30% | 83 | 10.59% |
| Other Violent Offences | 960,391 | 1,766 | 0.18% | 849 | 0.09% |
| Rape | 12,639 | 540 | 4.27% | 184 | 1.46% |
| Other Sex Offences | 40,838 | 163 | 0.40% | 64 | 0.16% |
| Robbery | 84,751 | 1,432 | 1.69% | 617 | 0.73% |
| Domestic Burglary | 280,708 | 8,043 | 2.87% | 3,443 | 1.23% |
| Other Burglary | 303,006 | 7,211 | 2.38% | 3,886 | 1.28% |
| Theft from Vehicle | 432,387 | 3,544 | 0.82% | 2,201 | 0.51% |
| Theft of Vehicle | 170,016 | 4,223 | 2.48% | 1,379 | 0.81% |
| Criminal Damage | 1,036,236 | 5,432 | 0.52% | 3,180 | 0.31% |
| Drugs Offences | 229,903 | 1,000 | 0.43% | 321 | 0.14% |
| All other recorded crime | 1,399,845 | 3,659 | 0.26% | 1,407 | 0.10% |
| Total of 12 crime types | 4,951,504 | 37,376 | 0.75% | 17,614 | 0.36% |
| 2008/09 | Recorded crimes | Crimes
with a DNA scene-subject match |
Detections
of crimes in which a DNA match was available |
||
| Homicide | 648 | 252 | 38.89% | 70 | 10.80% |
| Other Violent Offences | 903,345 | 1,819 | 0.20% | 861 | 0.10% |
| Rape | 13,133 | 580 | 4.42% | 168 | 1.28% |
| Other Sex Offences | 38,355 | 175 | 0.46% | 106 | 0.28% |
| Robbery | 80,104 | 1,462 | 1.83% | 603 | 0.75% |
| Domestic Burglary | 284,445 | 8,188 | 2.88% | 3,702 | 1.30% |
| Other Burglary | 296,952 | 7,110 | 2.39% | 3,830 | 1.29% |
| Theft from Vehicle | 396,990 | 3,484 | 0.88% | 2,036 | 0.51% |
| Theft of Vehicle | 147,470 | 3,699 | 2.51% | 1,298 | 0.88% |
| Criminal Damage | 936,729 | 5,149 | 0.55% | 2,886 | 0.31% |
| Drugs Offences | 242,907 | 1,110 | 0.46% | 397 | 0.16% |
| All other recorded crime | 1,362,736 | 3,699 | 0.27% | 1,506 | 0.11% |
| Total of 12 crime types | 4,703,814 | 36,727 | 0.78% | 17,463 | 0.37% |
Minister forgets his bill
Could it get any worse? It did when Alan Campbell MP, Parliamentary Under-Secretary of State for Crime Reduction, Home Office got the proposals, in the Crime and Security bill concerning children who have been convicted, wrong. He failed to remember them! None of the committee members came to his rescue so they probably didn't have a copy of the bill, or of the much shorter standard note published by the House of Commons Library (SN/HA/4049 Retention of fingerprints and DNA data). Eventually, several of the minister's minders jumped up from their seats to provide him with this basic and essential information (see picture). If you need to refresh your memory see the preceding post: Home Office still wants your DNA profile, and your PNC record.
Alan Campbell was very clear about his willingness to get rid of the presumption of innocence. He sees three distinct categories of people: those who are guilty, those who are convicted and those who are arrested but not convicted. Having their DNA profile retained for a certain number of years is a price those in this latter group have to pay as 'our research says [...] they are more likely to offend in the next six years'. The minister remains convinced that this bill will be completed before the next general election. He promised that the second reading of the Crime and Security Bill would happen very soon, but wouldn't commit as to whether it'll happen this month or when a date will be set.
Just before the end, there was a rather surreal moment. David TC Davies, Conservative MP (not to be confused with David Davis MP) expressed that his views are 'fairly close to those of the minister on this' (less than a week after his party launched a 'Return my DNA' campaign!). He went on to suggest, 'as a fellow supporter, that the minister would 'allow people to opt-in to get on this database.' He also attempted to get Alan Campbell to agree with him that, 'if there's an issue that young black men are over-represented [on the NDNAD], surely that may be because they're committing more crime?' The minister didn't 'accept this rather simplistic account'. (Home Office research indicates 'people from BME groups are over-represented at each stage of the criminal justice process from initial contact to sentencing. Evidence also suggests that it is not because people from BME groups are more likely to offend.')
Not having much experience of evidence sessions and as the leaflet introducing this session stated this was 'a one-off evidence session', I can only hope that regular sessions are conducted in a more professional manner. You can watch the session now on Parliament TV; uncorrected transcripts will eventually be published on this page. Even though, this was a one-off session, Keith Vaz MP announced that there would be another session next week with Sir Alec Jeffreys and possibly another mystery guest.
Bootnote: If anyone from the Home Affairs Committee is reading this post and didn't get the email I sent to the generic email address of the committee, some answers to the question, by Tom Brake MP, of how many requests for deletion of DNA profiles were received by police forces and how many were acted upon can be found in the article Don't delay: Delete your DNA today I wrote a year ago.
First published on 2010-01-06; last updated on 2010-01-07.
After facing opposition from all quarters to its initial plan to establish new rules to regulate the sampling and retention of DNA via secondary legislation, the Home Office belatedly introduced clauses about DNA in the Crime and Security Bill 2009-10. Opposition to a blank check for the Secretary of State was so predictable that introducing these clauses, among many other unrelated ones, close to a year after the European Court of Human Rights (ECtHR) ruling against the UK appear the result of deliberate delaying tactics. There's no date set yet for when the bill will progress to the second reading stage.
One change introduced in the bill got most of the attention: the proposition to retain DNA profiles of innocents for six years instead of 12. Another figure picked out of thin air with little justification. Missing in the bill is any mention about retention rules of the associated Police National Computer (PNC) records, and it would seem that the Home Office is now keen to hold on to these even when it will relent and delete DNA profiles, fingerprints and palm prints. Here are high level details about what's in store, extracted from the Explanatory notes accompanying the Crime and Security Bill 2009-10:
30. Subsection (6) re-enacts the existing power to take non-intimate [DNA] samples after conviction. But it also now includes a power to take non-intimate samples following a caution, reprimand or warning (which is already possible in the case of fingerprints). [...]
31. The power [to take non-intimate samples after conviction] may be exercised in relation to convictions, cautions, reprimands and warnings occurring before commencement. [...]
46. The retention periods for the various categories of data depend on a number of factors including the age of the individual concerned, the seriousness of the offence or alleged offence, whether the individual has been convicted, and if so whether it is a first conviction. The different categories can be summarised as follows:
- Adults - convicted: indefinite retention of fingerprints, impressions of footwear and DNA profile (see substituted section 64(2));
- Adults - arrested but unconvicted: retention of fingerprints, impressions of footwear and DNA profile for 6 years (see new section 64ZD);
- Under 18 year olds - convicted of serious offence or more than one minor offence: indefinite retention of fingerprints, impressions of footwear and DNA profile (see substituted section 64(2));
- Under 18 year olds - convicted of single minor offence: retention of fingerprints, impressions of footwear and DNA profile for 5 years (see new section 64ZH);
- 16 and 17 year olds - arrested for but unconvicted of serious offence: retention of fingerprints, impressions of footwear and DNA profile for 6 years (see new section 64ZG);
- All other under 18 year olds - arrested but unconvicted: retention of fingerprints, impressions of footwear and DNA profile for 3 years (see new sections 64ZE and 64ZF);
- Persons subject to a control order: retention of fingerprints and DNA profile for 2 years after the control order ceases to have effect (see new section 64ZC);
- All DNA samples: retained until profile loaded onto database, but no more than 6 months (see new section 64ZA).
49. The clause also contains provision in new section 64ZB for material which has been given voluntarily to be destroyed as soon as it has fulfilled the purpose for which it was taken, unless the individual is subsequently convicted, has previous convictions or consents to its retention.
50. In addition, where fingerprints or DNA profiles would otherwise need to be destroyed because of the expiry of a time limit set out in the above clauses, new section 64ZK enables a chief officer of police to determine that, for reasons of national security, those fingerprints or DNA profiles may be retained for up to two further years on that basis. It is open to chief officers to make further determinations to retain material where the necessity continues to exist.
62. Clause 19 requires the Secretary of State to make a statutory instrument prescribing the manner, timing and other procedures in respect of destroying relevant biometric material already in existence at the point this legislation comes into force. This will enable the Secretary of State to ensure that the retention and destruction regime set out in this Bill is applied to existing material, while recognising that this exercise may take some time to complete; there are some 850,000 profiles of unconvicted persons on the National DNA Database. The statutory instrument will be subject to the negative resolution procedure. [emphasis added]
As can be seen, innocents will have their DNA profiles (as well as their fingerprints, palm prints and possibly footwear impressions - held on the IDENT1 database) retained for at least six years (reduced to three years for those who were arrested when under 18 and only for a minor offence). Furthermore, a chief constable would be able to extend this every two years, indefinitely, on the basis of 'national security'. This is extremely pernicious, as the opaque concept of national security prevents any scrutiny or objection. Even the judiciary system does not have the competence to scrutinise matters of national security, as was pointed out at a recent SIAC hearing. It is curious that a national security decision rests with chief constables and not the Home Office as this is essentially a political matter. Deleting the DNA profiles of innocents already on the NDNAD will require further secondary legislation and so will be delayed even further.
Policy-based evidence
The Home Office has again attempted to justify its plans by including irrelevant research of unknown quality. In Sentenced to genetic probation, I showed many holes of the research by the Jill Dando Institute that was included in the consultation document; even the Institute's director later disavowed the findings. The Home Office published alongside the summary of responses to the consultation: DNA Retention Policy: ReArrest Hazard Rate Analysis, a paper authored by the Association of Chief Police Officers (ACPO) Criminal Records Office (ACRO). It was not peer-reviewed either. It's 22-page long, and one wonders why it was published at all, after reading its first page:
However, the research does not take account of when the samples were originally taken, and hence cannot say how much increasing the retention period above zero might reduce the number of DNA matches – and hence possible detections – which are lost. It also does not say anything about the possible impact of DNA and retention periods on other offence types. Therefore, although providing a prima facie justification for a policy, the ACRO research does not provide evidence to inform the length of any general DNA retention period. [emphasis added]
Another example of policy driven evidence. Chose your statistics wisely and reach any number: using Ministry of Justice data I found that the '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.' Using UK National Statistics, Chris Pounder found 'a three year retention period for DNA appears optimal in that it would allow most reoffending (82%) to be caught (assuming that the DNA was the only means of identifying the offender)'. Note that both Chris Pounder and my analysis are about 're-offending', i.e., individuals who had been previously found guilty.
The ‘state’ should not hold personal information on innocents says everyone else
The Home Office has demonstrated its willingness to ignore the responses to its own consultation as well as the Strasbourg ruling. As many as 402 individuals (and 101 organisations) took the effort to respond to the Keeping the right people on the DNA database consultation. (See my response). A high number when compared to other recent Home Office consultations. This shows that, although the National DNA Database is a complex topic, there's widespread concern about it and a willingness to have a wide debate. Three hundred and eighty four respondents commented on the retention of profiles of those 'arrested but not convicted or no further action' (i.e. innocent):
This topic generated most responses with the significant majority opposed to any form of retention of profiles and fingerprints for persons arrested and against no further action was taken or acquitted. Most of those opposed to any form of retention considered that the ‘state’ should not hold personal information on an individual when they are innocent in the eyes of the law. It was entirely inappropriate that a person should be treated the same as a person who had been found guilty and it went against the principle of ‘innocent until proven guilty’. [emphasis added]
The Committee of Ministers of the Council of Europe, in charge ensuring compliance of states with ECtHR rulings, still remains critical of the government's general measures after seing the draft bill:
5. [The Deputies] welcomed that the new proposals foresee that all cellular samples should be retained for a maximum of six months from the date on which they were obtained and that time limits for the retention of fingerprints and DNA profiles should be introduced, with special provisions for minors;
6. nevertheless noted that a number of important questions remain as to how the revised proposals take into account certain factors held by the European Court to be of relevance for assessing the proportionality of the interference with private life here at issue, most importantly the gravity of the offence with which the individual was originally suspected, and the interests deriving from the presumption of innocence (see paragraphs 118 – 123 of the judgment), and requested, accordingly, that the Secretariat rapidly clarify such questions bilaterally with the United Kingdom authorities;
7. noted that further information was also necessary as regards the institution of an independent review of the justification for retention in individual cases;
MPs have had to deal with more complaints from their constituents and many are better informed about the NDNAD. (The House of Commons Library published a Standard Note, SN/HA/4049 Retention of fingerprints and DNA data, which is a good concise summary). In her opening speech of a parliamentary debate about the NDNAD on 2009-12-09, Diane Abbott MP summed up the single-mindedness of the Home Office position:
Of course, if somebody is proven guilty in a court of law, no one objects to their DNA being kept in principle. The issue is the indiscriminate collection of innocent people's DNA. I spell that out right at the beginning because, sadly, when Ministers talk about the DNA database, they tend to merge and elide innocent and guilty people. It is almost as if the Government have a third category: rather than someone being wholly innocent, they might be not really innocent. As a Parliament, we must stand firm on one of the oldest British traditions: innocent until proven guilty.
The Select Committee on Home Affairs has decided to hold an inquiry into the DNA database. Be sure to attend or watch, the first evidence session this Tuesday 2010-01-05 at Portcullis House.
Holding on to PNC records indefinitely
Currently, for those who have been DNA sampled by the police, the way to get off the NDNAD is to send a request to the chief constable of the force that arrested them. The chief constable must be convinced that the case is 'exceptional' enough before they may eventually relent. (See ReclaimYourDNA for some help.) Success means the DNA samples will be destroyed and the DNA profile, fingerprints, palm prints and Police National Computer (PNC) record will be deleted. The PNC record is created at arrest and contains details about the arrests and also details of the corresponding entry in the NDNAD, but not the DNA profile itself. (For details, see this blog post about NDNAD records.)
You may have noticed that the bill's explanatory notes quoted at the start of this post, do not mention the PNC record at all. According to The Observer, this is because the government wants to hold on to the PNC records – of innocents and criminals alike – indefinitely. The current retention rules about the PNC (and the NDNAD), are specified in an Association of Chief Police Officers (ACPO) guideline. The Equality and Human Rights Commission requested the ACPO to change the guidelines, but ACPO's response has not been made public and no change has been announced. With the bill being silent about the PNC, ACPO would be free to change its guidelines to extend the retention period of PNC records indefinitely, even if the associated DNA profile eventually gets deleted. The Observer:
The names of nearly a million people who have not been convicted or cautioned for any crime will continue to be stored on the police national computer, even though the government is changing the law so that their DNA profiles are deleted.
The revelation has provoked outrage among human rights groups who warn that it could affect the job prospects of the innocent. They fear that whenever an employer carries out an "enhanced criminal records" check on a potential employee, the system would flag up the fact that the person had been arrested. [...]
"Keeping permanent records of arrest is unprecedented in British history and is open to serious abuse," said Helen Wallace, director of the campaign group GeneWatch UK. "Failing to delete police records of people who are innocent means business as usual for the surveillance state."
The office of the information commissioner has warned: "All records held on the [police national computer] are readily accessible to any serving police officer acting in his or her official capacity and this access is frequently used to run a 'name check' on individuals who come into contact with the police. Given this level of access, the commissioner is concerned that the very existence of a police identity record created as a result of a DNA sample being taken on arrest could prejudice the interests of the individual to whom it relates by creating inaccurate assumptions about his or her criminal past."
The presence of information about a DNA profile on a retained PNC record can affect innocents not solely when revealed in an enhanced criminal record. For instance, the BBC published the story of a Mancunian who when stopped by the police, after a PNC check, was told 'You're on the [DNA] database. So you've obviously done something wrong. What are you trying to conceal now?' The PNC is accessible not only by the police, but also by 56 non-police bodies.
This tactic of changing an arbitrary large number (say 12 years) to another arbitrary large, but smaller, number (say six years) is obviously not a new one. When the government was pushing for 90 days pre-charge detention, and eventually getting the 28 days amendment through, many MPs claimed this compromise as a success apparently forgetting that innocents could be locked up for four weeks and have their life ruined. In the case of the NDNAD, the proposed change from 12 to six years for the retention period has at least succeeded in the editor of Sunday national newspaper cancelling a story about the NDNAD for which I had been interviewed. A small success for the Home Office.
With this bill, the Home Office is single-mindedly pushing for an abandon of the principle of ‘innocent until proven guilty’ by proposing to retain DNA profiles of innocents for six years or more and their PNC record indefinitely, for an abandon of the principle of rehabilitation by proposing to keep retaining DNA profiles of convicted adults indefinitely, for avoiding parliamentary scrutiny of its (unannounced) plans to deal with the existing records of innocents and for getting more people's DNA profiles on the NDNAD in the first place by getting a DNA sample when someone receives or has received a caution, reprimand or warning. The creeping up of national security purposes in general legislation is dangerous as it creates powers that can't be checked. In addition to the impact on people's life, the cost of storing these DNA profiles (about £4.50 per profile per year) would be better spent on measures for which there's evidence they improve crime detection, or even on prevention.
There's a wide consensus that adding DNA profiles of crime scenes has a direct impact on detecting crimes. However views differ widely as to what is achieved by retaining the DNA profiles of millions individuals, including that of many innocents, when there's a lack of evidence demonstrating this helps detect crimes. Hence, it is surprising to learn that while the Home Office is keen to waste money on retention of DNA profiles of millions of individuals, it is to stop funding and put at risk Operation Stealth, a national operation to review unsolved murders. Detectives have had great successes when loading the DNA profiles of such cold cases. Continued funding of Operation Stealth should remain a priority.
The Times revealed that Police spending cuts may spell the end for unsolved murders unit:
Cold case units are frequently staffed by retired detectives, who can be laid off more easily than serving police officers. With the cutbacks looming, The Times has also been told that the Forensic Science Service (FSS) is reducing its charges for cold case work to try to encourage police forces to continue the work. FSS labs, which are reviewing more than 200 cases, have assisted in most cold case convictions since 1999.
The success of historic inquiries, which has spawned a spate of TV dramas such as New Tricks and Waking The Dead, is due largely to rapid advances in DNA technology. Two decades ago large amounts of DNA material had to be found at a crime scene to obtain a profile; today offenders can be identified from a few microscopic cells.
Detectives have been able to reopen and keep under constant review unsolved cases from the 1970s, 1980s and 1990s. [...]
The bulk of successful cold case convictions have been for rapes and sex assaults but since 2007 there has been a concerted drive to re-examine murders. Operation Stealth provides financial and investigative help to forces to reopen murder files. Some 46 murders are under review.
The police service’s national lead on homicide inquiries, Jon Stoddart, Chief Constable of Durham, has been been pleading with the Home Office to continue the project until 2012. As yet, however, no agreement has been reached to finance it beyond April next year.
Geoff White, project manager for Stealth, said: “It’s about equality of service. For today’s victim, the police respond with the 2009 toolbox — DNA and telephone evidence are available. Why not look at yesterday’s victim and where material still exists allow detectives to use today’s toolbox to try to find the killer? It is a moral argument, a theoretical argument, but it’s a strong one.”
The Human Genetics Commission, in its Nothing to hide, nothing to fear? (November 2009) report, highlighted that money would be better spent by adding more DNA profiles of crime scenes than that of individuals:
Improved composition – Efforts have been made to calculate an optimum size for the NDNAD [National DNA Database]. In its strategic plan Confident Communities in a Secure Britain: The Home Office Strategic Plan 2004-08, the Home Office estimated that half of all crime in England and Wales was committed by a stable pool of 100,000 offenders, with just 5,000 offenders being responsible for 9% of all crimes.7 It went on to say, however, that “most of these [100,000] offenders are known to the police and other agencies” and are therefore, by implication, already recorded on the database, although there is a 20% turnover each year, with 20,000 new offenders estimated to join the pool of prolific offenders to replace a similar number who leave it. (We note that this is a substantial number in relation to the number of new profiles added to the database each year – around 700,000 in the two most recent years for which data is available.8) It is not clear where the data on which the claim about the 100,000 core offenders was sourced (the source is described as ‘Home Office’) nor whether those who commit the remaining half of crimes are ‘occasional’ or ‘one-off ’ offenders. However, we can infer from these figures that half of all crimes are committed by approximately 2.2% of the people who are currently recorded on the database (assuming that those who are ‘known to the police’ have previously been arrested and their profiles stored on the NDNAD). In this connection we note that others, for example GeneWatch UK and the Nuffield Council on Bioethics, have concluded that putting more effort and resources into the recovery of DNA samples from crime scenes could yield significantly better detection rates than the indiscriminate expansion of criminal justice samples taken from arrestees; we share this view. [emphasis added]
The Home Office, along the years, has offered supporting views – when it's not been busy trying to expand the National DNA Database (NDNAD) by any means. Six months after publication of the National Policing Plan 2004-20079 (November 2003), the Home Office claimed in the Police Science and Technology Strategy: 2004 - 2009 (May 2004):
Significant milestones achieved since this strategy was first published include:
• The profiles of the majority of known active criminal population (2.5 million) on the national DNA database.
(The expressions 'criminal population', 'active criminal population' and 'known active criminal population' are used in several Home Office documents and websites without being clearly defined. I am awaiting an overdue response to a Freedom of Information request for definitions sent on 2009-11-09.)
The Home Office was most clear about retention of what kind of DNA profiles achieves detection of crimes, in the DNA Expansion Programme 2000–2005: Reporting achievement (October 2005, no longer online) by its Forensic Science and Pathology Unit:
Evaluation of the Programme has shown 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 [emphasis in the original]
GeneWatch UK looked at the data over four years in its background web page (2006) to the The Nuffield Council on Bioethics consultation and found that:
Since April 2003 [to 2006], about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA [as a percentage of recorded crimes] has remained constant, at about 0.36%.
In the Annex: DNA detection model: validation issues (Word) to its response to the Home Office consultation (2009), GeneWatch UK found that the percentage of recorded crimes which involve a DNA detection was again 0.36% in 2007/08.
The National Police Improvement Agency (NPIA), in its National DNA Database Annual Report 2007-09, makes the same point, again:
A crime is said to have been detected when a suspect has been identified for that crime and there is sufficient evidence to charge the suspect. DNA matches are a powerful aid to crime investigation and detection: where DNA profiles from crime scenes are added to the Database the rate of detection can be significantly increased. [emphasis added]
In the graphs below, the curves representing crimes with a DNA crime scene to subject DNA profile matches and crimes detected in which a DNA profile match was available show very close correlation with those for the number of DNA profiles from crime scenes loaded each year on the NDNAD. This is consistent with the consensus that loading DNA profiles of crime scenes is what drives detection. Adding millions of individuals' DNA profiles does not make that much of a difference.
(Source data for both these graphs: National DNA
Database Annual Report 2007-09.)
The annual report explains the correlations by a causal relation. When fewer DNA profiles of crimes scenes are loaded, irrespective of the number of DNA profiles of individuals added, there are fewer matches. The report also makes the point that the vast majority of matches happen when DNA profiles of crime scenes are added, reinforcing the position that core offenders are already on the NDNAD and adding DNA profiles of innocents or those committing minor offences does not help detect crimes.
During 2007/08, one or more subject profiles were matched with 40,406 crime scene profiles. The total represents a decrease of 8.6% of the total number of crime scenes for which one or more suspects were nominated in the previous year. The fall is due to fewer new crime scene profiles being loaded within the period. [...]
A key objective in recent years has been to ensure that the majority of the active criminal population is represented on the NDNAD, and this has led to a steady increase in the likelihood of a crime scene profile matching to a subject profile already held on the NDNAD upon being loaded. This is referred to as the crime scene to subject match rate.
Matches to crime scenes also occur when, upon being loaded, a subject profile matches to a crime scene profile already held on the NDNAD. This subject to crime scene match rate is a much lower figure. As previously explained, this is because the majority of recorded crimes do not have a crime scene (for example, minor assault, drugs offences, theft, fraud etc.) and consequently there is no crime scene examination. [emphasis added]
In time of tight budgetary constraints, the Home Office and the police can afford not to retain DNA of innocents. Their priority must be to load DNA profiles from crime scenes whether new or old.
Vocabulary note (based on definitions in the NDNAD annual report):
‘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 as well as cases where the individual is eventually convicted.
A ‘DNA detection’ means that the crime was cleared up and a DNA match was available.
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.)
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."
Home Secretary Jacqui Smith delivered a speech titled 'Protecting rights, protecting society' to the Intellect Trade Association on 2008-12-16. It is one of her most perverse speeches that demonstrates either a lack of understanding of the issues she's dealing with or dangerous vacuous doublespeak policy statements, or both. I recommend you check out the following excellent analysis:
'Balance' is mentioned eight times, 'balancing' once; here's a word frequency analysis of the speech (created with Wordle):
Two weeks earlier, on the same day the ECtHR ruled against the UK, Thomas Hammarberg, CoE Commissioner for Human Rights presented a rather different view in the issue paper 'Protecting the right to privacy in the fight against terrorism':
7. Conclusions
We are rapidly becoming a “Surveillance Society”. This is partly the result of general technical and societal developments, but these trends are strongly reinforced by measures taken in the fight against terrorism.
In the context of the fight against terrorism, this means individuals are at risk of being targeted for being suspected “extremists” or for being suspected of being “opposed to our constitutional legal order”, even if they have not (yet) committed any criminal (let alone terrorist) offence.
“Targets” of this kind are moreover increasingly selected through computer “profiles”. Even if some may be caught, there will always be relatively large numbers of “false negatives” - real terrorists who are not identified as such, and unacceptably high numbers of “false positives”: large numbers of innocent people who are subjected to surveillance, harassment, discrimination, arrest - or worse. Freedom is being given up without gaining security.
In addition, increasing use is made of non-criminal, yet effectively punitive, “administrative” measures against identified suspected “extremists” or new-type “enemies of the State”. This robs them of fundamental safeguards, both against the specific measures taken against them and, as groups, against such discrimination. It leads to alienation of the groups in question, and thus actually undermines security.
In the process, all of us are increasingly placed under general, mass surveillance, with data being captured on all our activities, on-line or in the “real” world. Such general surveillance raises serious democratic problems which are not answered by the repeated assertion that “those who have nothing to hide have nothing to fear.”
<snip>
Now that a European Court has decided that the retention of the DNA of
innocent people is illegal - what should you do now?
Earlier this month, 17 judges on the Grand Chambers of the European Court of Human Rights (ECHR) ruled unanimously that the UK is in violation of the right to respect for private and family life (Article 8) by retaining the fingerprints, DNA samples and profiles of Messrs S and Marper. Mr S was arrested at the age of 11 and charged with attempted robbery. Mr Michael Marper was arrested and charged with harassment of his partner. Both were arrested in 2001, and both had their fingerprints and DNA samples taken. Later that same year Mr S was acquitted and the case of Mr Marper was formally discontinued, as he and his partner had become reconciled and the charge was not pressed.
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, as applied in the case of the present applicants, 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. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.
Let's look at the consequences of this ruling. What you can you do - as soon as you've finished reading this article - and what is the likely impact on legislation and policies?
Don't delay - delete your DNA today
The ruling clearly affects the retention by England, Wales and Northern Ireland police forces of fingerprints and DNA samples, and derived DNA profiles of both those who have been acquitted and those for which a decision of no further action (NFA) was taken. 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.
Writing to the chief of police
The first step is to write to the chief of police of the force that arrested you. This may seem obvious, but several responses to freedom of information (FOI) requests we sent out as part of the research for this article, before the outcome of the S and Marper UK case was known, reveal that few individuals have gone to the trouble of asking.
At one extreme, the Warwickshire Police force has not received any requests in the last three years even though they contributed 12,263 DNA profiles to the NDNAD in the same period. At the other end of the scale, the Metropolitan Police, which in the past three years has contributed 85,305 DNA profiles, close to a fifth of the DNA profiles added by all English and Welsh forces to the NDNAD, received only 23, 64 and 110 requests for the removal of DNA profiles from the NDNAD, and granted 11, 18 and 21 of these respectively for 2006, 2007 and 2008 (up to the end of November).
Even though the West Midlands Police has in recent years arrested for recorded crimes about a third the number the Met has, it has received a similar number of requests for removal: 58, 49 and 83, and granted 25, 7 and 28 of these respectively for 2006, 2007 and 2008 (to November 21). For forces with fewer arrests such as the Cheshire, Durham or Gwent Constabularies, you can count the number of requests granted, since recording them started, on one hand. Police guidelines (the Retention Guidelines for Nominal Records on the Police National Computer) ensured that received requests to get off the NDNAD were granted only exceptionally. As a consequence of the ruling, the exceptional will have to become the norm.
Several forces do not keep a tally of the requests they receive. For example, the Northamptonshire Police responded to our request for details: "There is no single database holding the information requested. Some information may be held on individual custody records but manual examination would take the request over the cost limit and any results would not be conclusive in any case." One force, the Derbyshire Constabulary decided "As a result of your request [I] have asked the staff who deal with exceptional cases to consider making a record of requests and decisions."
Dr Helen Wallace, Director of GeneWatch UK, a not-for-profit organisation that monitors developments in genetic technologies from a public interest perspective, which provided expert evidence on behalf of Messrs S and Marper to the ECHR, commented on the ruling: "[This] landmark decision vindicates all those innocent people who have struggled to get their DNA destroyed. It means that there must be strict new rules to limit DNA retention and prevent misuse."
How to write a formal request
Having decided to write to request destruction of your fingerprints and DNA samples, deletion of your DNA profile and deletion or updating of any other database records linking to this information, the next step is to figure out what you should write. You need to include enough information so the police can identify you, the circumstances in which you were arrested (and your fingerprints and DNA samples were taken), details of the NFA decision or of your acquittal, and the reason you are requesting your records to be deleted and your samples to be destroyed.
This initial letter doesn't have to be long but it must be precise otherwise the police won't be able to deal with it. In its FOI response, the Cheshire Constabulary explained that it "receives numerous 'requests' for the removal of DNA, [t]he majority of which could not be considered formal request as when asked why we should consider their request, they simply do not respond or they actually mean something different. We would seek to clarify requests to establish the identity of the requestor and the reasons why they are requesting removal of data. This is well before we can actually consider the merits of a request and whether or not it fits the requirements of the Exceptional Cases procedure."
GeneWatch suggests this as a reason to "[a]sk for them to remove your records and destroy your DNA in the light of the judgment of the European Court of Human Rights". You may want to send a copy of the letter to your MP and a copy of any reply to GeneWatch (and let us know how it goes as well).
Another suggestion is that you may also want to argue for the police to remove your records and destroy your DNA samples in "other cases (e.g. cautions, final warnings, spent minor convictions)". Although the ECHR decision only covers people who have not been convicted, it makes clear that an interference with personal informational privacy such as the retention and use of profiles and samples must be indispensable and proportionate with the legitimate aim of the criminal justice system (i.e., the seriousness of the offence).
The Court cannot, however, disregard the fact that, notwithstanding the advantages provided by comprehensive extension of the DNA database, other Contracting States have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life... The Court considers that any State claiming a pioneer role [as the UK is] in the development of new technologies bears special responsibility for striking the right balance in this regard.
If you're in a situation where you find this balance has not been achieved, for example the indefinite retention for children given reprimands, then you may also benefit from this ruling.
Taking into account the ECHR ruling, the police are now likely to accept all legitimate requests as they would be in a very weak position if an innocent person were to seek a judicial review in case of refusal. Due to the small number of requests granted prior to the ruling, the actual deletions from the NDNAD and the Police National Computer (PNC) and destruction of samples is a very ad-hoc process. The Met promised a process last year and eventually did publish one (pdf), but it was not worth the wait.
Here's the process they go through: "If the decision to delete has been made, the Exceptional Cases Unit will contact the respective departments and agencies to ensure that the DNA, fingerprints and PNC records are deleted/destroyed accordingly."
The National Police Improvement Agency (NPIA) realises that "following the judgement last week in the S & Marper case heard at the European Court of Human Rights the DNA sample retention and destruction requirements are being reviewed." At least, once a DNA profile has been deleted from the database, it would appear that these transactions are propagated to all backups in short time:
The NDNAD has both a regular internal and a regular off-site back-up procedure. All transactions carried out on the NDNAD are backed up each working day. The deletion of profiles from the NDNAD would be treated the same as any other NDNAD transaction within this back-up procedure. Any record of a DNA profile will also be removed from all back-up media within 10 days of its deletion from NDNAD.
Until a comprehensive process is published giving stronger confidence in the deletion process, once you get confirmation that your request has been granted you may want to ask to be present when the physical samples are destroyed and electronic data is deleted and updated. If you go for this, ask speedily or possibly even with your request letter, as in my case the deletion process was started before informing me of the decision!
Observing the process by a large number of individuals would be costly in time and money; an easier alternative would be for the labs used by the police to generate DNA profiles from the samples taken from individuals to systemically destroy the DNA samples once a DNA profile has been derived. The DNA samples are not used for identification.
Changes of legislation and policies
What does the ECtHR ruling change for the government and the police? Article 44 of the European Convention of Human Rights (ECHR) states that the "The judgment of the Grand Chamber shall be final" and article 46 that "The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties" - so the UK government can't ignore this ruling. Jack Straw confirmed in Parliament that "The judgment... goes on to suggest that distinctions should be made between the nature of offences for which samples have been taken, and discusses whether they should be time-limited and whether there should be an independent review. Those matters will be considered by my right hon. Friend the Home Secretary in consultation across Government. We have an obligation to report initially to the Council of Ministers and the Council of Europe by March."
The Joint Committee on Human Rights explained the mechanism of abiding by such rulings in its 31st report:
The UK has undertaken to give effect to the ECHR and to give effect to the judgments of the ECHR. The UK must abide by ECHR judgments by: (1) putting an end to the breach identified by the Court (the obligation of cessation); (2) preventing any further violations in the future (the obligation of non-repetition); (3) repairing the damage caused to the individual (the obligation of reparation); (4) paying to an individual applicant any award of just satisfaction made by the ECtHR (the obligation to make just satisfaction).
The obligation of cessation
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" must cease. "The Court recalls that it has found that the retention of the applicants' fingerprint and DNA data violates their rights under Article 8. In accordance with Article 46 of the Convention, it will be for the respondent State to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to fulfil its obligations to secure the right of the applicants and other persons in their position to respect for their private life."
Solicitor Peter Mahy, a human rights specialist at Sheffield-based Howells LLP representing Messrs S and Marper, puts it succinctly: "It will be very interesting to see how the UK government respond. The government should now start destroying the DNA records of those people who are currently on the DNA database and who are innocent of any crime." Up to one in five of the more than five million DNA profiles may have to go.
A process has to be put in place to deal with the scale of this operation. The Scottish Police Services Authority (SPSA), a non-departmental public body (NDPB), centrally handles the removals of more than 20,000 Scottish DNA records every year. Police forces in England and Wales will likely look at this model. With its role of overseeing delivery of the NDNAD Service, the NPIA should be a candidate for a similar central function. In the meantime those innocents whose DNA is on the NDNAD should request removal as explained earlier.
The retention rules will have to change too. The legislation enables the police to take and retain fingerprints and DNA samples indefinitely, but it does not compel them. Section 64 of the Police and Criminal Evidence Act 1984 (PACE) as amended by the Criminal Justice and Police Act 2001 includes:
(1A) Where - (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.
The police may take samples and may retain them indefinitely, but it's up to them. The current rules were not decided by Parliament; they are established in the Retention Guidelines for Nominal Records on the Police National Computer, a document issued by the Association of Chief Police Officers (ACPO). This document also provides a template for the letter sent by chiefs of police when refusing requests for destruction of DNA records.
Chris Sims, ACPO lead on Forensics and Chief Constable of Staffordshire Police announced: "We will study this judgment carefully and consider in detail implications which could have a profound impact on the way in which the police service makes use of DNA technology to protect the public and tackle crime... It is important to stress that the existing law on the taking and retention of DNA and fingerprints remains in place. Police will continue to take DNA from those people arrested for crimes and will investigate crimes and bring offenders before the court using DNA evidence until such time as there is a legislative change."
This statement is overly cautious - no legislative change is needed for the ACPO to change its guidelines. What must change is the retention of records and samples. Taking DNA from those arrested for a crime is not the issue. Home Office minister Vernon Coaker, agreed in a Parliament debate in November that the "[ACPO retention] guidelines will need to be reviewed in the light of the outcome of the S and Marper case, and a PACE review is currently under way."
The obligation of non-repetition
The recent PACE review made it clear that it will be amended in line with the judgment. "The Government does not intend to make any proposals at this time in area. That is because of an outstanding case in the European Court of Human Rights... a response in respect of this area of policy will be made following consideration of the Judgement by the Court."
It is necessary for the legislation to change so that it is no longer possible for the police to create and follow policies that violate our human rights. However, effective change of current retention practices can happen much sooner with a change of policy.
The obligations of reparation to make just satisfaction
The Court considers that "the finding of a violation, with the consequences which will ensue for the future, may be regarded as constituting sufficient just satisfaction in this respect. The Court accordingly rejects the applicants' claim for non-pecuniary damage." Hence the reparation will consist of deleting the DNA profiles and destroying the DNA samples and fingerprints of Messrs S and Marper. The government has to pay within three months, ie by March 4, the sum of €39,387 awarded by the Court in respect of costs and expenses.
The Committee of Ministers has the responsibility to monitor the measures taken by the UK to comply with the judgment. "[U]ntil the state in question has adopted satisfactory measures, the Committee of Ministers does not adopt a final resolution striking the judgment off its list of cases, and the state continues to be required to provide explanations or to take the necessary action."
Some misconceptions
Retaining DNA of a large number of individuals has not proved helpful. A GeneWatch analysis shows 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%... The Home Office recognises that the increased number of crime scene profiles added to the Database drove the increase in DNA detections."
Nothing in the ECHR ruling affects the ability of the police to take DNA samples from those they arrest during their investigations. Nor does the ruling ask for wholesale deletion of DNA records of convicted criminals, though it does note that in other Council of Europe member States "[t]he retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person's death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons."
The Joint Committee on Human Rights in the conclusions of its report notes "[d]elays of upwards of five years in resolving the most significant breaches of the European Convention are unacceptable unless extremely convincing justification for the delay can be provided." This only serves to reiterate that those who are innocent and on the NDNAD should not delay requesting the removal of their DNA records. ®
(The full text of the judgement is available on the British and Irish Legal Information Institute website and you can download a six minutes video of the reading of the judgment's summary from a hard-to-find page on the Council of Europe's website.)
Read and comment on this article at El Reg...
After a four-year absence, the
Big Borther awards are back with Simon Davies
and Gus Hosein from Privacy
International as masters of ceremony. Traditionally
this event expose the
government and private sector organisations which have done the most to
threaten personal privacy. This year the emphasis was much more on
celebrating the individuals who have made outstanding contributions to
the protection of privacy.
A single Big Brother 2008 award - the golden statue of a boot stamping upon a human head - was won by New Labour.
Six individuals received virtual Winstons (due to timing there were no physical objects to give during the evening, which also meant as Simon pointed out that there was nothing to be seized by the Police in case of raids on any of the winners!):
Most of the short presentations were about the hope brought about by the recent ECtHR ruling in S. & Marper v. UK (GeneWatch UK, Privacy International and Liberty intervened with evidence or submission in this case.) The derailment of the attempt to extend pre-charge detention to 42 days, and the absence of the latest communication surveillance initiative, the interception modernisation programme (IMP), from the Queen's speech were others positive news this year.
Congratulations to Baroness Ludford, Phil, Helen, Gareth, Becky and David Davis.
The Jean Charles de Menezes family sums up the wider issue at stakes in their press statement: 'This case raises questions of critical constitutional importance. Should our armed police service be protected from meaningful criticism (let alone criminal sanction) or are the public entitled to go about their day to day business free from the fear that they could be shot dead without warning if mistaken for a suspected terrorist?
At 12:53pm today, the jury announced its verdict in the inquest into the death of Jean Charles de Menezes:
SIR MICHAEL WRIGHT: Mr Foreman, I think, if you don't mind, if I ask you to stand up, then everybody can see you and see that it is you who is speaking. I understand that the jury has reached a verdict and answers to all questions and that at least eight of you are agreed on all the answers given. Is that so?
THE FOREMAN OF THE JURY: That's correct, sir.
SIR MICHAEL WRIGHT: Thank you. I am now going to ask you to give your answer on each matter and to say in each case whether you are all agreed or whether the answer has been reached by a majority and, if so, the size of the majority in each case, the numbers in each case. The short form verdict is either lawful killing or open verdict. What is your verdict?
THE FOREMAN OF THE JURY: Open verdict.
SIR MICHAEL WRIGHT: Thank you. Question 1: did officer Charlie 12 shout the words "armed police" at Mr de Menezes before firing; yes, no or cannot decide?
THE FOREMAN OF THE JURY: No.
SIR MICHAEL WRIGHT: I should have asked you in relation to the verdict: is that a unanimous verdict or by a majority?
THE FOREMAN OF THE JURY: It's a majority.
SIR MICHAEL WRIGHT: How many agreed and how many disagreed?
THE FOREMAN OF THE JURY: Eight agreed, two disagreed.
SIR MICHAEL WRIGHT: In answer to question number 1, the one you have just given, is that unanimous or by majority?
THE FOREMAN OF THE JURY: That is unanimous.
SIR MICHAEL WRIGHT: The second question is: did Mr de Menezes stand up from his seat before he was grabbed in a bear hug by Ivor; yes, no or cannot decide?
THE FOREMAN OF THE JURY: Yes, and that's unanimous.
SIR MICHAEL WRIGHT: Thank you. Did Mr de Menezes move towards officer C12 before he was grabbed in a bear hug by officer Ivor?
THE FOREMAN OF THE JURY: No, and that's unanimous.
SIR MICHAEL WRIGHT: Thank you. Turning to the factors for consideration, do you consider that any of the following factors caused or contributed to the death of Mr de Menezes: (a) the suicide attacks and attempted attacks of July 2005 and the pressure placed upon the Metropolitan Police in responding to the threat?
THE FOREMAN OF THE JURY: Cannot decide, sir.
SIR MICHAEL WRIGHT: Again, is that inability to decide by a majority or unanimous?
THE FOREMAN OF THE JURY: That's a majority of eight to two.
SIR MICHAEL WRIGHT: Thank you. (b) a failure to obtain and provide better photographic images of the suspect Hussain Osman for the surveillance team?
THE FOREMAN OF THE JURY: Yes, that's unanimous.
SIR MICHAEL WRIGHT: (c) a failure by the police to ensure that Mr de Menezes was stopped before he reached public transport?
THE FOREMAN OF THE JURY: Yes, unanimous, sir.
SIR MICHAEL WRIGHT: Thank you. (d) the general difficulty in providing identification of the man under surveillance, Mr de Menezes, in the time available and in the circumstances after he had left the block at Scotia Road?
THE FOREMAN OF THE JURY: No, and that's unanimous.
SIR MICHAEL WRIGHT: (e) the innocent behaviour of Mr de Menezes which increased the suspicions of some officers?
THE FOREMAN OF THE JURY: No, that's a majority of eight to two, sir.
SIR MICHAEL WRIGHT: Thank you. The fact that the views of the surveillance officers regarding identification were not accurately communicated to the command team and the firearms officers?
THE FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: (g) the fact that the position of the cars containing the firearms officers was not accurately known to the command team as the firearms officers were approaching Stockwell station?
THE FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: (h) any significant shortcomings in the communications system as it was operating on the day between the various police teams on the ground and with New Scotland Yard?
THE FOREMAN OF THE JURY: Yes, unanimous again, sir.
SIR MICHAEL WRIGHT: (i) a failure to conclude at the time that surveillance officers should still be used to carry out the stop of Mr de Menezes at Stockwell station, even after it was reported that specialist firearms officers could perform the stop?
THE FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: That concludes your verdict. I am very much obliged to you, Mr Foreman, thank you.
The family's reaction:
Is the family pleased with the verdict? Do they feel justice has been done?
The decision today will not bring our cousin Jean back.
However, it goes at least some way to recognising the failings that led to his death. We thank the jury for the considerable time they contributed to this inquest and their careful review of all the evidence within the boundaries given to them.
Agencies and institutions involved in all aspects of this case must now demonstrate their own accountability and make fundamental changes to their practices and procedures.
In their conclusions, the jury have delivered a strong critique of the police and its failings. They have said that they do not believe that the police gave a warning before shots were fired, or that Jean advanced towards firearms officers in the tube train. The family appreciate this conclusion.
We have come a little closer to the truth during the course of the inquest. Nevertheless, the gagging of the options available to the jury constitutes a abject failure of the role of the inquest.
What will the family do now?
The family has consistently struggled for justice, which has not yet been delivered. We will continue to pursue this aim.
The next stage is a judicial review of the Coroner's decision not to allow an unlawful killing verdict. We will also be examining all other legal avenues because we feel that the Coroner has ensured that the inquest failed in its fundamental role to properly examine why our cousin Jean was killed.
As the legal situation stands today, another innocent member of the public could be shot and another family could go through the same ordeal as us.
Will the family be asking for compensation?
The family has not pursued this as a priority. Our central concern has always been to find out the truth about Jean's death.
When we buried Jean in 2005,we made a promise to him that we would make sure that justice was done. Jean was a great believer in justice, one of the things he most loved about living in Britain was respect for the rule of law and that nobody was above the law. We owe it to his memory to make sure that nobody else suffers the way that he did.
In light of the verdict, we would nevertheless hope that any issues around compensation to be settled in a dignified manner, without obstruction or delay.
What is your message to Sir Ian Blair?
Today's verdict confirms that Sir Ian Blair has repeatedly evaded any responsibility for the killing of an innocent man, by misleading the public in the aftermath of the shooting so that no-one in his police force is held to account over the killing of Jean Charles de Menezes.
However, having misrepresented the shooting as simply a 'tragic mistake' rather than the result of terrible policy and procedural failures, it is clear that Jean's death will always be Sir Ian's legacy, the judgement on his time as Commissioner that he will never escape.
Has the family any message to the jury?
We consider that the jury were given unacceptable restraints upon the verdict they could deliver and feel that, within the choices available to them, they tried their best to deliver a fair verdict. We thank them for their handling of this difficult task.
We feel that in light of the evidence heard, a free decision by the jury would have at least have left a possibility of a verdict of unlawful killing.
It is disappointing that the Coroner made clear attempts to exclude the public, media and the family's campaign from the inquest.
The family would also like to express their appreciation for the many messages of support from the British public during this difficult time.
The family staged a protest in court. Do they stand by their actions? Do they feel these actions made a difference?
The family stands by our actions because we feel that we were left with no choice. We wanted the jury to know that they could have the freedom to make their decision, despite the limitations placed upon them.
Do you think Cressida Dick should resign?
The family should not have to carry the responsibility of this decision. Public bodies have a responsibility to hold her accountable and they have failed to do so.
In light of DAC Dick's direct involvement as the designated senior officer of a disastrously handled operation that led to the shooting of an innocent man, her promotion in the aftermath of the shooting was considered by us to be a deliberate slap in the face for our family and our view on this remains unchanged.
We once again call on the Independent Police Complaints Commission, the Crown Prosecution Service and the Metropolitan Police Authority to review the inquest evidence and to see what appropriate action needs to be taken to hold public servants to account.
Why did you ask your legal team to withdraw from the inquest?
The family felt that they were left with no other option. We felt the coroner's decision to restrict the jury's decision-making completely undermined their role to freely return whatever verdict they felt was correct based on the evidence. We could no longer participate in a process which was so clearly a whitewash.
More details on the views of the different parties on the choice of verdict and questions offered to the jury can be found the post inquest briefing and legal submissions on verdicts.
Last year British lawyer Clive Stafford Smith suggested that musicians use copyright law to hold the American government to account for its use of music to torture detainees in Afghanistan, Iraq and Guantanamo. I wrote about this idea, about the use of music as a weapon and moral rights for El Reg in Fighting torture with copyright - Moral musos work to rule. (See also the related posts on this blog: readers' follow-ups suggestions such as for the US Army to run its own music label, and the 'Bring Byam Home' song; Binyam Mohamed is still held in Guantanamo and a victim of music torture: 'I could not take the headphones off as I was cuffed. I had to sleep with the music on and even pray with it.') Earlier this year, Clive Stafford Smith wrote Welcome to 'the disco' in The Guardian about 'torture lite' - music played at excruciating volume over and over.
Yesterday, on human rights day, Reprieve, the legal charity of which Clive Stafford Smith is the director, launched the Zero dB project:
Zero dB – against music torture
On the 60th anniversary of the Universal Declaration of Human Rights musicians are uniting against the use of music to torture by joining www.ZerodB.org The Zero dB project (zero decibels = silence) was launched today by legal charity Reprieve which represents over 30 prisoners in Guantanamo Bay. Many of Reprieve’s clients - and hundreds more held in US secret prisons across the world - have been subjected to deafening music played for hours, days and often months on end in order to ‘break’ them.
Zero dB aims to stop torture music by encouraging widespread condemnation of the practice and by calling on governments and the UN to uphold and enforce the Convention Against Torture and other relevant treaties.
Zero dB is backed by the Musicians Union which is calling on British musicians to voice their outrage against the use of music to torture.
The UN and the European Court of Human Rights have banned the use of loud music in interrogations, but it is still being widely used. Prisoners describe the experience as harder to bear even than physical torture.
Reprieve’s client Binyam Mohamed from North London - still held in Guantanamo Bay - suffered 18 months of torture in a Moroccan secret prison. During this time his penis was routinely slashed with razor blades, yet he describes the sensation of feeling his sanity slip during psychological torture as even more horrific. He spoke to Reprieve Director Clive Stafford Smith, his lawyer, in Guantánamo Bay:
“They hung me up. I was allowed a few hours of sleep on the second day, then hung up again, this time for two days. My legs had swollen. My wrists and hands had gone numb.... There was loud music, [Eminem’s] ‘Slim Shady’ and Dr. Dre for 20 days.... The CIA worked on people, including me, day and night.... Plenty lost their minds. I could hear people knocking their heads against the walls and the doors, screaming their heads off.”
There is a long and growing list of supporters who are outraged by the use of music to torture: James Lavelle of UNKLE, Matthew Herbert, Tom Morello of Rage Against The Machine, Massive Attack, The Magic Numbers, Elbow and Bill Bailey have so far pledged their support of the initiative and made statements against the use of music to torture.
Musicians and the wider public are making their own silent protests against music torture which are being shown on zerodb.org. A series of silent protests and actions are planned through 2009.
Visit www.zerodb.org to record your silent protest now.
Music that has been used to torture includes:
• AC/DC - Hell's Bells
• AC/DC - Shoot to Thrill
• Aerosmith
• Barney the Purple Dinosaur - theme tune
• Bee Gees - Stayin' Alive
• Britney Spears
• Bruce Springsteen - Born in the USA
• Christina Aguilera - Dirrty
• David Gray - Babylon
• Deicide - Fuck Your God
• Don McLean - American Pie
• Dope - Die MF Die
• Dope - Take Your Best Shot
• Dr. Dre
• Drowning Pools - Bodies
• Eminem - Kim
• Eminem - Slim Shady
• Eminem - White America
• Li'l Kim
• Limp Bizkit
• Matchbox Twenty - Gold
• Meat Loaf
• Metallica - Enter Sandman
• Neil Diamond - America
• Nine Inch Nails - March of the Pigs
• Nine Inch Nails - Mr. Self-Destruct
• Prince - Raspberry Beret
• Queen - We are The Champions
• Rage Against the Machine - Killing in the Name Of
• Red Hot Chilli Peppers
• Saliva - Click Click Boom
• Sesame Street - theme tune
• Tupac - All Eyes on Me
Surprisingly not all musicians are opposed to this use of their music, James Hetfield, co-founder of Metallica said in an NPR Music interview: 'There's a pride also. It's culturally offensive to [Iraqis], freedom. [...] If they're not used to freedom, then I'm glad to be a part of their exposure'. (At that point of the interview he does appear serious). Most musicians prefer to remain silent on this issue, hiding behind the fact that they don't have much control on their music once published. Reprieve lists above some musicians outraged by the use of music as torture. Also, the Society for Ethnomusicology condemns the use of music as an instrument of torture, and the Musicians Union is backing the Zero dB project. British singer-songwriter David Gray is one musician who openly condemned such use: 'It's shocking that there isn't more of an outcry. [...] It's disgusting, really. Anything that draws attention to the scale of the horror and how low we've sunk is a good thing.'
Intriguingly, the expression 'torture lite', used for music played at excruciating volume over and over, evokes a scale ranging from no torture to torture heavy. Andy Smith pointed out, in Orwell's Sound of Silence, that Orwell had found non-stop muzak, played even at low volume well below anything used by torturer, was enough to affect everyone's thoughts:
“On a pleasure cruise or in a Lyons Corner House one already gets something more than a glimpse of this future paradise. Analysed, its main characteristics are these:
- One is never alone.
- One never does anything for oneself.
- One is never within sight of wild vegetation or natural objects of any kind.
- Light and temperature are always artificially regulated.
- One is never out of the sound of music.”
Items one and two are recurring themes throughout Orwell’s writing—most notably in the concept of “Big Brother is watching” in 1984. However, it is the fifth item that bears further examination because, for him:
“The music—and if possible it should be the same music for everybody—is the most important ingredient. Its function is to prevent thought and conversation, and to shut out any natural sound, such as the song of birds or the whistling of the wind, that might otherwise intrude.”
Back in contemporary London, 'Live music is now a threat to the prevention of terrorism'; this according to UK Music chief Feargal Sharkey comminting on the implementation of a risk assessment policy for vetting live music. Organisers must complete Form 696 with personal details of all artists, music style to be played and some information on the audience. This form has to be sent to the police at least 14 days in advance.
Every time I write up a submission to yet another consultation I wonder whether it is worth the effort. Here are some of the consultations mentioned in this blog to which I sent in a contribution:
I suggested earlier: 'It's unclear how much effect responses to these many consultations do have, but as these are rare occasions when the public at large are invited to voice concerns you may want to take the time to go through the 60-page document and write to the Home Office. The number of responses generally positive or negative may be as important as the detailed content of the responses.'
The European Court of Human Rights judgement in S. and Marper v. UK should be an encouragement to everyone who made the effort to contribute to the Nuffield Council on Bioethics consultation. The resulting report is cited in the section on 'Relevant law and materials' (sections 38-40) and in the 'Justification for the interference; The Court's assessment' (section 116 and 124).
In Appendix 2: Wider consultation of the report, the Nuffield Council on Bioethics wrote:
A consultation was held between November 2006 and January 2007. A consultation paper prepared by the Working Group contained background information and questions for respondents to answer if they wished. The document was disseminated to individuals and organisations relevant to the field and it was also available online. Approximately 135 responses to the consultation were received; 76 per cent from individuals and 24 per cent from organisations.
The Working Group and the Council are grateful for such a diverse range of responses and found them to be insightful and useful.
Everyone who contributed to this consultation (the list is available in the report) has in a small and indirect way helped inform the Grand Chambers of the ECtHR when it looked into the case of S. and Marper v. UK. That was a consultation worthwhile to contribute substantively to!
Lord Steyn in the House of Lords ruling in S. and Marper v. UK ([2004] UKHL 39) held that 'the increase in the database of fingerprints and samples promoted the public interest by the detection and prosecution of serious crime and by exculpating the innocent;' [Emphasis added]. The case of Kevin Reynolds contradicts this point.
Kevin Reynolds was first arrested in 2002, and the police took DNA samples from him. When he was acquitted, the Police retained his DNA samples and profile. Three years ago, Kevin was arrested a second time, this time on suspicion of murder. The police had DNA from the crime scene; if they had compared it to the DNA retained from Kevin's first arrest he would have been cleared immediately - but they didn't. See details in DNA retention of unconvicted people.
Kevin informed me that he just received the following letter, dated 2008-12-02, from SCD12 - AC Private Office and Business Services, Metropolitan Police:
Re: Request for deletion of fingerprints, DNA and PNC records
Dear Mr Reynolds,
I refer to previous correspondence regarding the above.
Your case has been subject to a review based on existing MPS records and the evidence and contention you have provided.
After consideration, Commander [name removed] (on behalf of the Commissioner), is of the opinion that your case should be treated as exceptional.
Based upon this, your records will now be destroyed
The deletion process takes a number of weeks to be fully completed, you will be informed when the deletion of all samples / records has taken place.
NB. fingerprints of an unsuitable quality would not have been retained.
Yours sincerely,
[name removed]
for Commander - Operational Information, Intelligence and Learning, on behalf of the Commissioner
Congratulations to Kevin. As this letter is dated two days earlier than the ECHR judgement in S. and Marper v. UK, the decision in Kevin's case could not have been affected by this ruling. It is likely that Kevin is one of the last innocents in England and Wales who had to fight the Police, often over several years, to have a chance to be among the happy few couple hundred individuals to manage to get their DNA records destroyed each year. Now that the ECHR has found the retention of S. and Marper's DNA breaches human rights law, it should be much easier for innocents who have had their DNA taken by the police to get their DNA samples and profile destroyed. GeneWatch UK recommends that you write now to the Chief constable of the police force that arrested you to request your DNA records to be destroyed.
The DNA profiles of innocents held in the National DNA Database (NDNAD) are found, by the European Court of Human Rights, to be in violation of the right to respect for private and family life (article 8). About one in five of the more than five million DNA profiles will now have to go. The judgment of the Grand Chamber is final (article 44 in Protocol No 11) and the UK by being a signatory of the European Convention of Human Rights (ECHR) undertakes to abide by the final judgment (article 46 in Protocol No 11).
125. In conclusion, the Court finds 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, as applied in the case of the present applicants, 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. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society. This conclusion obviates the need for the Court to consider the applicants' criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data.
126. Accordingly, there has been a violation of Article 8 of the Convention in the present case.
This is a fantastic result after a seven year hard fought battle against the UK government. We are obviously delighted that the European Court of Human Rights found in our clients’ favour. It will be very interesting to see how the UK government respond. The government should now start destroying the DNA records of those people who are currently on the DNA database and who are innocent of any crime.
The decision - which will affect people aged ten or above who have been acquitted or had charges dropped following arrest in England, Wales and Northern Ireland - was welcomed by campaign groups involved in the case. [...]
"It is now up to the British people to stand up for their rights and demand strict rules to limit DNA retention", said Dr Wallace.
Home Office figures show that keeping DNA indefinitely from innocent people has not helped to solve more crimes.
We will study this judgment carefully and consider in detail implications which could have a profound impact on the way in which the police service makes use of DNA technology to protect the public and tackle crime.
The existing law would remain in place while ministers considered the judgment
I was interviewed earlier on by Andy Bell for Five News. It should be broadcast at 5pm and 7pm today as part a series of reactions to the ECHR judgement. [Update: the Five News programm will lead with another topic.] We discussed how I felt about the police taking and keeping my DNA, how difficult it was for me to get off the NDNAD and what I think about today's judgement.
This is a superb news for all the other innocents, including those who contacted me directly, desperate to get off the NDNAD. Now we're awaiting the practical details of when and how the DNA and fingerprint records of innocents already on the system will be destroyed.
Most readers of this blog are hopefully keen on promoting human rights. For the many based in London, join the discussions at the event organised by CAMPACC, the London Guantánamo Campaign, London Against Injustice and others on December 10th, the International Human Rights Day.
Why Human Rights? ...And Where Now?
On the 60th anniversary of the signing of the Universal Declaration of Human Rights (UDHR) creating a global framework for the protection of the rights of everyone, and in this climate of multiple crises, we invite you to consider: do we really have human rights? What's right and wrong with them? Can 'rights' help us respond to the challenge of reconstructing society; so that justice, mutual respect and equality prevail? And if so, what concrete actions must we now take?
The 10th December free event at the LSE looks to mark the 60th anniversary by finding ways to make human rights relevant to all, and not just activists, lawyers and academics. Asking the question: how can a broad civil rights platform encompass the full range of relevant social movements in Britain today? We will explore beyond civil liberties and individual rights to consider: what are humanity's essential, and collective economic, social, political and environmental rights, for which we must fight?
15:00-17:00 Pre-conference seminar: Prison and Society (LSE, Room H102, Connaught House Building, on Aldwych)
- Politics of Detention - Aisha Maniar, Hicham Yezza, Massah Barnett and others
- Land, Housing and Lebfevre's Right to the City - Professor Michael Edwards, Teresa Hoskyns, Dave Wetzel [tbc] and others
- Action proposals, discussion and preparing questions for the evening conference
18:00-19:00 Building a movement - Panel (LSE, New Theatre, Building E, Houghton St)
- Head of State Immunity - Peter Tatchell
- Academic Freedom - Hicham Yezza
- Public Services - Anne Gray
- Lebfevre's Right to the City - Teresa Hoskyns
- Housing - Michael Edwards
- with guest appearance from Vivienne Westwood
19:00-20:00 Keynotes (LSE, New Theatre, Building E, Houghton St)
- Civil Liberties - Professor AC Grayling
- War on Terror - Andy Worthington
- The Environment - Asad Rehman
20:00-21:30 Audience Q&A, discussion and action proposals (LSE, New Theatre, Building E, Houghton St)
Speakers, panellists and questioners may wish to consider the history of the UDHR - successes, failures, shortcomings, opportunities - under six broad themes: Culture, Development, Dignity and Justice, Environment, Gender and Participation. They may also wish to refer to the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) aswell as the EU Charter of Fundamental Freedoms (Charter) and recent UK Cabinet proposal for a Bill of Rights and Responsibilities (announcement & JCRH report on the proposal). And in respect of any or all of these, and the various crises we find ourselves in: what concrete actions must we now take?
We want to come out of the day with concrete, shared ideas about how to move forward the human rights movement after our 60-year experience with the UDHR, and more recently the ECHR and HRA. We have chosen the topics, speakers and panellists to provide the potential foundation for a movement based on liberty, dignity and justice for all in the UK and beyond. Furthermore, both the timetable and Q&A format are designed to leave sufficient space to discuss and plan future actions together. We would therefore ask speakers to plan their presentations accordingly: what collective actions we must now undertake? And we would ask participants to do the same in relation to any questions, comments or concrete proposals they put forward.
Find your way around the LSE campus. Download, print and display A5 fliers. For more details on the event email humanrights2012@gmail.com.
The European Court of Human Rights will deliver its Grand Chamber judgment in the case S. and Marper v. United Kingdom at 11 am next Thursday. S. and Marper v. UK is viewed as a test case about whether the UK is breaching human rights by retaining DNA samples and profiles, and fingerprints of unconvicted innocent people. The hearing of this case by is available to watch online. Last week, Vernon Coaker, Home Office minister responded in a Parliamentary debate that 'The [DNA retention] guidelines will need to be reviewed in the light of the outcome of the S and Marper case'.
FORTHCOMING GRAND CHAMBER JUDGMENT
4 December 2008
The European Court of Human Rights will deliver its Grand Chamber judgment in the case of S. and Marper v. the United Kingdom (application nos. 30562/04 and 30566/04) in a public hearing on Thursday 4 December 2008 at 11 a.m. (local time) in the Human Rights Building, Strasbourg.
The press release and the text of the judgment will be available after the hearing on the Court’s Internet site (http://www.echr.coe.int).
S. and Marper v. the United Kingdom
The applicants S. and Michael Marper, were born in 1989 and 1963. They are both British nationals who live in Sheffield (the United Kingdom).
The case concerns the retention by the authorities of the applicants’ fingerprints, cellular samples and DNA profiles after criminal proceedings against them were terminated by an acquittal or were discontinued.
On 19 January 2001 S. was arrested and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted on 14 June 2001. Mr Marper was arrested on 13 March 2001, charged with harassing his partner. His fingerprints and DNA samples were also taken. The charges were dropped following reconciliation with his partner and the case against him was discontinued on 14 June 2001.
Both applicants unsuccessfully requested that their fingerprints, DNA samples and profiles be destroyed.
The applicants complain about the retention of their fingerprints, DNA samples and profiles after an acquittal or discontinuance of criminal proceedings. They are concerned in particular about possible current and future uses of those data. They further contend that the retention casts suspicion on people who have been acquitted or discharged of crimes and that they should be treated in the same way as the rest of the unconvicted population. They rely on Articles 8 (right to respect for private life) and 14 (prohibition of discrimination) of the European Convention on Human Rights.
The applications were lodged with the European Court of Human Rights on 16 August 2004 and declared admissible on 16 January 2007. The Chamber to which the case was assigned decided to relinquish jurisdiction to the Grand Chamber on 10 July 20071. The Grand Chamber held a public hearing in the case on 27 February 2008.
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
1 Under Article 30 of the Convention, where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects.
From theory to personal experience in a week.
As reported on this blog, only a week ago in a Commons debate on the Counter Terrorism Bill, shadow immigration officer Damian Green when summing up the DNA retention guidelines expressed: 'It is interesting that when a person's data are entered on to the PNC, they are owned by the police.' Damian Green was arrested yesterday as part of a police investigation into official information leaks from the Home Office, apparently by counter-terrorism police "on suspicion of conspiring to commit misconduct in a public office and aiding and abetting, counselling or procuring misconduct in a public office." Nothing to do with terrorism.
The Met released the following statement:
The investigation into the alleged leak of confidential government material followed the receipt by the Metropolitan Police Service (MPS) of a complaint from the Cabinet Office.
The decision to make today's arrest was taken solely by the MPS without any ministerial knowledge or approval."
And Damian Green today read:
I was astonished to have spent more than nine hours today under arrest for doing my job.
I emphatically deny I have done anything wrong.
I have many times made public information that the government wanted to keep secret, information that the public has a right to know.
In a democracy, opposition politicians have a duty to hold the Government to account. I was elected to the House of Commons precisely to do that and I certainly intend to continue doing so.
Such a police raid on an opposition MP is unprecedented in the UK. It has not been said whether he had DNA samples (and fingerprints, palm prints and mug shots) taken when he was processed.
UPDATE: Statement released on Home Office leaks by the Permanent Secretary, David Normington. (via Marc Vallee)
Parliament overturned by 277 votes to 209 a Lords amendment to the Counter Terrorism Bill 2008 which aimed 'to try to spark a national debate about the retention of samples and to inform the public about what information is being held on them'. Several MPs told stories of their constituents fighting the system in attempting to get their DNA off the National DNA Database (NDNAD). Reading through the several interventions, I find surprising how poorly briefed many MPs are on this very serious issue affecting millions of individuals in the UK.
House of Commons debates, Wednesday, 19 November 2008 - Counter-Terrorism Bill
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
[...] The changes are necessary because of the worrying nature of the guidelines under which we operate. They are produced for the police, and go under the spectacularly opaque title "Retention guidelines for nominal records of the police national computer", which could almost have been designed to stop anyone finding out what the guidelines are for the use of DNA—a rather important term that the document carefully refuses to mention in its title. Frankly, the guidelines are draconian. They state:"Chief Officers have the discretion to authorise the deletion of any specific data entry on the PNC 'owned' by them."
It is interesting that when a person's data are entered on to the PNC, they are owned by the police. The guidelines continue:
"They are also responsible for the authorisation of the destruction of DNA and fingerprints associated with that specific entry. It is suggested that this discretion should only be exercised in exceptional cases."
According to the guidelines, the discretion to destroy the information will rarely be exercised, which in itself is enough to raise eyebrows. The guidelines later state:
"In the first instance applicants should be sent a letter informing them that the samples and associated PNC record are lawfully held and that their request for deletion/destruction is refused".
Therefore, the standard guideline is, "Just say no, you can't have your records deleted." The last paragraph of this part of the guidelines states:
"It is not recommended that any proactive exercise is undertaken to determine potentially exceptional cases".
The police are therefore being told in their guidelines first that everything must be exceptional, and secondly that their first and standard response should be to say no. Indeed, elsewhere in the guidelines—I shall not detain the House by reading this out—is the standard template letter of refusal, in case the police cannot work out how to write a refusal letter. On top of that, they are instructed not to make any effort to tell people what they can do or what criteria they might have to fulfil to get their records out of the system. That approach is not satisfactory.
Compounding that, an example is given for those who want to know what an "exceptional case" is. It is the only such example in a 236-page document of what might be an exception. I shall quote it in full:
"For example, where a dead body is found in a multi-occupancy dwelling and the cause of death is not immediately obvious. All the occupants are arrested on suspicion of murder pending the outcome of a post mortem. All arrested persons are detained at the local police station and samples taken. It later transpires that the deceased person died of natural causes. No offence therefore exists, and all persons are released from custody."
That is the only example given in the guidelines of an allowable exception. The House will recognise that that is an absurdity and that the guidelines are clearly not an acceptable way in which to proceed.
This is a good summing up of the current situation (follow these links for a flowchart of the whole process and more details on getting off the NDNAD), but let's take a step back. These guidelines are issued by the Association of Chief of Police Officers (ACPO), a private company (hence not subject to the Freedom of Information Act). Should guidelines affecting so many individuals so intimately be decided by a private company behind closed doors?
Keith Vaz (Leicester East, Labour)
I do not disagree with anything that the hon. and learned Gentleman says. We do need a proper system, and the present system is totally inadequate. At the very least, if we had letters in reply to reasonable requests, providing information to the person who has asked for his or her profile to be removed, I could understand it. As it is, this is the first time that I have heard the guidelines as they were read out by the hon. Member for Ashford. I did not realise that although everyone is told that they have the right to have their DNA removed, it is only in very, very exceptional circumstances that it will be so removed. [emphasis added.] I am minded to vote for the Opposition's amendment, unless the Minister gives a clear sign to the House that the Government will radically alter the current guidelines on removal.
These retention guidelines replaced the 'ACPO General Rules for Criminal Record Weeding on Police Systems' on 2006-03-31 (according to the intro of version 1.3). They are the document describing what the Police are doing with our DNA. If you take out the cover page, blank pages, acknowledgment and the long lists offences, it's only 14 pages long of principles, guidelines, letter examples and flowcharts. (Most of the 236 pages, as mentioned above by Damian Green, is taken by Appendix 3, three long lists of offences.)
How come an MP attending a debate on amendments concerning the NDNAD has not read these 14 pages or been briefed about them? This is even more surprising for Keith Vaz considering he is the Chairman of the Home Affairs Committee and this Committee issued only last May a report including recommendations specifically about retention of the DNA profiles of innocents.
David Jones (Shadow Minister, Wales; Clwyd West, Conservative)
[...] In response to my request, I received a letter from the chief constable of North Wales police. The letter broadly followed the template that my hon. Friend the Member for Ashford mentioned—template A in appendix 2 to the ACPO guidelines. It followed the guidelines almost word for word, except that at one particular juncture the chief constable decided to ski off-piste. He said:"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 DNA samples and fingerprints, relating to persons following acquittal at court or other discontinuance of a case.
I must admit to being personally surprised by this decision and I am not sure parliament fully understood the implications of its decision. However, the Act is clear enough and I am bound to act by its provisions."
In other words, it would appear that the chief constable of North Wales police decided to enter the debate about the retention of DNA ahead of the House. He clearly thinks that the current legislation is nonsense. His letter continued:
There is, therefore, almost no circumstance in which a chief constable will exercise that discretion, which is a lamentable state of affairs. Clearly, the present arrangements are opaque and unsatisfactory."If I were to exercise my discretion in this case, then I would have to exercise my discretion in similar cases, thus it would not be a rarity."
Section 82 of the CJA 2001 amends PACE 1984 so that 'samples may be retained after they have fulfilled the purposes for which they were taken'. It is not an obligation and chiefs of police forces can legally exercise their discretion in each case. Now the ACPO guidelines effectively give them a framework where exercising their discretion should be done only exceptionally: 'They have the discretion in exceptional circumstances, to authorise the deletion of any conviction, penalty notice for disorder, acquittal or arrest histories, "owned" by them'. Chiefs of Police for England and Wales forces exercised their discretion on average 222 times per year over 2005-2007.
Vernon Coaker (Minister of State (Policing, Crime & Security), Home Office; Gedling, Labour)
[...] The text of the amendment would require the Secretary of State to issue guidance relevant to all agencies holding DNA and fingerprint samples on the operation of their retention, use and destruction of fingerprints and samples. Let me say why the guidelines contained in the amendment are unnecessary. The rights of individuals from whom fingerprints and samples are taken by the police under PACE or under the Terrorism Act 2000 are already contained in guidance, including PACE codes C and D, the ACPO retention guidelines for nominal records on the police national computer, and guidance on subject access requests. However, let me say to my right hon. Friend and other hon. Members that I admit there is work to be done to publicise those rights more widely.I undertake to work with the police to bring together the current guidelines covering the matters raised in the amendment, and to publish them more widely. The guidelines will need to be reviewed in the light of the outcome of the S and Marper case, and a PACE review is currently under way. However, I give my right hon. Friend an undertaking to ensure that the points that he and others have made are fed into the PACE guidelines review, so that we can improve the process.
Publicising the existing guidelines - especially among MPs - would be a good thing, but what is being asked by many including a majority of Lords, the NDNAD Ethics Group, the Human Genetics Commission, the Nuffield Bioethics Council, GeneWatch UK and Justice is a public debate with one possible outcome being to ensure that DNA profiles of innocents are not retained on the crime-related intelligence database that is the NDNAD.
Coincidentally, on the very same day, the Metropolitan Police Service Special Crime Directorate 12 (SCD12) issued version .2 of its 'Exceptional Case Requests - Consideration for the Removal of DNA, Fingerprints and PNC Records'. As its previous version (issued on 2008-06-27), these guidelines closely follow the ACPO ones. Slightly more interesting is the 'Roles and Responsibilities' section:
The Exceptional Cases Unit will process any request by preparing a report for the Commander for Operational Information, Intelligence and Learning for their consideration. This report will consist of information supplied by the applicant and the officer in charge of the case [or in some circumstances, the Criminal Justice Unit Manager]. The Association of Chief Police Officers [ACPO] designated Criminal Records Office will be contacted for their advice and recommendation.
So in the case of the MPS, the ACRO - an offshoot of a private company - will be consulted as to whether the case is exceptional enough that they don't feel they can refuse deletion.
If the decision to delete has been made, the Exceptional Cases Unit will contact the respective departments and agencies to ensure that the DNA, fingerprints and PNC records are deleted / destroyed accordingly. The Exceptional Cases Unit will send a response to the applicant notifying them of the decision of the Commander for Operational Information, Intelligence and Learning on behalf of the Commissioner. [...]
This is still very far from the process map SCD12 promised me. Which 'respective departments and agencies'? Does that include the private labs holding the DNA samples? How is the deletion of electronic records and destruction of physical samples tracked? etc. This still doesn't give much confidence that, in the few cases where the chief of police exercise his or her discretion, the samples and records are always properly removed.
There's more hope of progress and change in the retention of DNA material being pushed by institutions such as the European Court of Human Rights, the NDNAD Ethics Group, the Human Genetics Commission and other bioethics and human rights organisation than by either Parliament or the Police.
As mentioned last week, the Human Genetics Commission (HGC) ran a consultation to seek further views on the National DNA Database and on the issues highlighted by its Citizens Inquiry. The aim is to inform the development of the HGCs own conclusions and advice to Government. In the meantime, to have a better understanding of some of the issues associated with such a massive database retaining our most intimate information, here are some of the submissions:
You still have a couple weeks, until 2008-11-28, to respond to another consultation - this one from the Home Office - that includes some questions concerning Police taking our DNA, among other plans of police powers' increases: PACE review: government proposals in response to the review of the police and criminal evidence act 1984. The proposal introduces creating spaces to detain individuals in busy areas:
10.19 The problem is particularly acute in busy urban areas or major shopping areas. The volumes of suspected offenders means that the efficiency of custody throughput is severely impacted, often with people suspected of high volume, low level offences. A potential solution is to enable the police to make use of short term holding facilities (STHF) located in shopping centres or town centres. The STHF would be secure accommodation but would not equate to the standard cell design. The main function would be to confirm the identity of the suspect and process the person by reporting for summons/ charging by post, a penalty notice or other disposal. Persons detained would be subject to detention up to a maximum period of 4 hours to enable fingerprinting, photographing and DNA sampling. The STHF would not be considered suitable where an investigation was required and the use of such a facility would be subject to strict criteria on type of offence, age or other potential vulnerability of the person.
Dr Helen Wallace, Director of GeneWatch UK warned in a GeneWatch's response, "There are major safety issues with collecting DNA outside of police stations. Police powers to use 'reasonable force' to pull out someone's hair should not be exercised outside a place of safety. Expanding numbers of non-police staff also increase the likelihood that criminals will infiltrate the system and obtain the DNA of vulnerable persons whose identity needs to be protected".
A summary of responses will be published by the Home Office on its PACE Review update page.
It's unclear how much effect responses to these many consultations do have, but as these are rare occasions when the public at large are invited to voice concerns you may want to take the time to go through the 60-page document and write to the Home Office. The number of responses generally positive or negative may be as important as the detailed content of the responses.
The Human Genetics Commission ran a consultation to seek further views on the National DNA Database and on the issues highlighted by its Citizens Inquiry. The responses are to inform the development of the HGCs own conclusions and advice to Government. This consultation finishes today. Below are my answers.
1. What information should be given to people when a DNA sample is taken following their arrest?
When a DNA sample is taken following an arrest, individuals should be fully informed of at least:
a/ all the allowed uses of their DNA samples and profile (profile
matching, criminal proceedings, research projects, etc.)
The current restriction that the bioinformation is to be used only for
purposes related to the prevention or detection of crime, the
investigation of an offence or the conduct of a prosecution is so broad
that it can easily be interpreted to allow uses that have not much to
do with criminal justice.
b/ details of the data controllers for the NDNAD and the lab holding the samples - so the sampled individuals know who they can send data subject access requests to.
c/ the retention periods for the samples and profile.
d/ the procedure to attempt to have their profile deleted and samples destroyed.
As this information is complex, will often be communicated at a time when concerned individuals will likely be vulnerable and will mostly be useful later than at time of arrest, it should be provided in written form in a short leaflet. A summary, including uses, should be communicated verbally before the samples are taken.
2. In what way should the National DNA Database be populated?
To be able to answer this question it has to be made clear what is the role of the NDNAD.
The NDNAD should be considered for what it is: a crime-related intelligence database. This position has been stated by both the NDNAD Ethics Group (in its first annual report) and the Human Genetics Commission (in the findings the Citizens’ Inquiry into the Forensic Use of DNA and the NDNAD), however the NPIA claims that "The NDNAD is not a criminal records database. It holds very little information about a subject's identity - only their name, date of birth, sex and ethnic appearance. Inclusion on the DNA database does not signify a criminal record, and there is no personal cost or disadvantage by being on it" (in an FOIA response).
The current criteria for collection (sampling all CJ arrestees suspected of committing a recordable offence) and retention of bioinformation (forever) are not proportionate. (It is interesting to note that the retention period is unclear as conflicting, and confusing, statements have been issued ranging from the first time the individual reaches 100-year old, to the time of his death, to no limit; the latter being the most commonly mentioned).
For investigatory purpose, the police should be able to take DNA samples only from individuals who are charged, after they have been charged.
For elimination purpose, on a voluntary basis exclusively with revocable informed consent, the police should be able to take DNA samples from victims and witnesses on the express condition that no DNA profile is stored on the NDNAD and that the DNA samples and profiles are destroyed preferably after their use and at the latest at the end of the investigation for which they have been taken.
3. What, if any, profiles, other than those relating to individuals convicted of a criminal offence, should be retained indefinitely (or for periods of many years) on the NDNAD?
Retention period of DNA profiles should be limited as to not criminalise innocents. An additional risk is that the NDNAD holds information on the conviction status of individuals and this may be inaccurate (personal example). A further risk is that the data held in the NDNAD may be leaked through for example illegal access or transfer to organisations with even less safeguards (such as information sharing with other countries).
DNA profiles of individuals who have been charged should be retained for a limited period. The retention period should by default end when the sentence has been spent. This period could be extended for serious criminal offences for a limited time, possibly by a judge, in cases where for the offence committed there's a high repeat offending rate. The retention period must be proportionate to the offence and the sentence.
It is not proportionate to retain the DNA profile of volunteers. When samples are volunteered, as explained in the response to question 2, they should be destroyed preferably after their use and at the latest at the end of the investigation for which they have been taken. There should not be the need to upload the profile of such samples; if an exceptional need does occur then retention of the profile should at the longest be for the duration of the investigation for which they have been volunteered.
Crime scene profiles should be retained for as long as the crime has not be solved and there is no limitation.
4. In what circumstances, and for what reasons, should DNA be retained from individuals whose profiles are recorded on the database?
DNA samples contain so much of an individual's intimate genetic information that it is essential to limit the retention period to prevent future misuse when technological and scientific progress in DNA analysis happens. Once a profile has been uploaded to the NDNAD, the samples should be destroyed. My understanding is that to be admissible in court another DNA sample is always taken from individuals being prosecuted making it even less justifiable to retain DNA samples.
5. What evidence would be required to demonstrate the ‘forensic utility’ of the NDNAD?
It is difficult to establish an effectiveness criteria as the NDNAD is only one of many tools used by the Police. One way to demonstrate the ‘forensic utility’ of the NDNAD would be to show that it increases the likelihood of convicting criminals while either reducing or not increasing the chances of misidentifying innocents as suspects or even worse resulting in miscarriages of justice.
To keep retaining DNA profiles and samples of innocents, evidence must be shown that retaining DNA profiles and samples of innocents makes a significant difference in detecting and prosecuting criminals.
The retention of DNA from crime scenes appear to have a much better 'forensic utility' than the retention of DNA from individuals. The Home Office explained: "Evaluation of the Programme has shown 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". Helen Wallace provides further analysis of the data available and concludes that "the success of the Database is determined largely by the number of DNA profiles collected from crime scenes, not from individuals".
A much larger public debate needs to take place.
6. What will be the likely social impact of maintaining the database at current levels or expanding it substantially?
The expansion of the NDNAD is not proportionate.
Too many DNA profiles of innocents are already on the NDNAD: 14 to 21% of the individuals sampled by the England and Wales forces are innocents. This victimises innocents and is a breach of privacy.
The bias of having an over-representation in the NDNAD of individuals from some minorities (e.g., black males) compared to other groups is not acceptable. It shows likely prejudice by the Police (as they're the ones deciding when to take DNA samples) and it further criminalises the over-represented communities.
Experience has shown that the police - and the labs they employ - can't be trusted to limit their use of our bioinformation to those that are appropriate: leaks from supposedly secure and restricted databases such as the PNC are known to have happened, and it was revealed in FOIA requests obtained by the Observer and Genewatch that there already are likely illegal uses of the retained DNA by one of the processing labs used by the police.
A criminal database on which it is too easy to get on, with bias and from which it is near impossible to get off will be increasingly rejected as individuals resent being put on it for often no apparent good reason. In the current situation one would be most foolish to volunteer one's DNA.
7. What governance arrangements are necessary to secure confidence in the acceptable and appropriate management and use of the NDNAD?
An oversight committee should be created, not just in an advisory role, but with powers to act. This committee should be able to receive complaints from the public. It should be composed of a minority of involved parties (Police, Forensic Science Service, etc.) and a majority of independent members (Genewatch, Nuffield Council on Bioethics, etc.) with the chairperson being an independent member.
The creation of the NDNAD Ethics Group was a step in the right direction but it does not take any direct input from the public and its powers appear limited.
Public involvement through debate and representation in oversight is lacking.
8. What further uses might it be appropriate to make of the genetic information collected for the NDNAD in the future?
Any further use must be reviewed in a transparent manner. Today it is not even possible to find out if one's DNA has been used in a research project.
For one's DNA samples or profile to be included in any non forensic use, outside of the limited use to be communicated to those sampled, must require an informed opt-in consent. Consents should be revocable.
Familial searching is not proportionate, as again it will involve many innocents. This is an obvious and unwarranted invasion of privacy. Revealing genetic familial relationships not always known by family members is a clear breach of privacy that is unethical. This type of research has in the past been associated with eugenics, racism and discrimination.
Any new use should be publicly debated.
9. Are there circumstances in which it might be acceptable for information contained on the NDNAD to be shared or linked, perhaps anonymously, with other agencies or databases?
For bioinformation sharing to be acceptable, mechanism must be in place so that shared data is kept in sync. In particular, when a profile is deleted in the NDNAD it must be deleted wherever it has been shared. Obviously any sharing should only happen if the use of the shared profiles is a subset of the allowed use of the profiles in the NDNAD. Independent oversight of data sharing must be in place.
Safeguards for exchanges of bioinformation with police forces from other countries are unclear and standard data protection measures such as data correction are too often not required.
Any data sharing also imply that more individuals will have access to the DNA profiles further increasing the risk of information leaks.
10. Under what conditions or in what circumstances might arguments for an universal DNA database be persuasive?
A universal DNA database is not proportionate to the need of the criminal justice system in a democratic society. Furthermore current data seems to indicate that this would not increase the detection rate (see response to question 5).
DNA contains very personal intimate genetic information, and technological and scientific progress may help reveal more information from a DNA samples than is currently possible. The temptation to use new techniques on the NDNAD may become too tempting to the Home Office, the Police and the DNA labs. The risks would be even greater if we ever get a Government keen on misusing bioinformation to further restrict people's rights and freedoms.
The National DNA Database (NDNAD) keeps growing: it now hols more than five million DNA profiles of individuals. Getting off the database, if you have been sampled by England or Wales forces, remain as unlikely as ever. And it remains difficult to make sense of the stats bandied at us, with the press quoting wildly differing figures. So we decided to investigate.
In August, the Daily Mail reported that "4.5 million genetic profiles [are] on record. Up to 1.5 million - or a third of these - are from innocent people".
In another article on the same day, the Mail reported "[t]he figure of 573,639 people on the database who have not been convicted, cautioned, formally warned or reprimanded has pushed the overall total to 4.2 million."
This is an extreme example of the difficulty of making sense of statistics concerning the NDNAD. Our first step was to find source data.
In May 2007 the National Policing Improvement Agency (NPIA) started to administer the NDNAD. We'll use data obtained in a recent response to a Freedom of Information request to the NPIA to get some sense out of the data and figure out what are all the implied assumptions.
Data from the NPIA is authoritative, but the organisation's view of what is the NDNAD is a matter of opinion. The NPIA claims that "The NDNAD is not a criminal records database. It holds very little information about a subject's identity - only their name, date of birth, sex and ethnic appearance. Inclusion on the DNA database does not signify a criminal record, and there is no personal cost or disadvantage by being on it".
The National DNA Database Ethics Group and the Human Genetics Commission both consider the NDNAD to be a crime-related intelligence database. Recent findings suggest that composite statistics do not mask identity within genome-wide association studies and that DNA profiles previously considered anonymous and not containing genetic markers may reveal much more than was thought.
Often assumptions are made about the data; and these may not be the same for different sets of data. The NDNAD includes profiles of DNA samples taken by forces from England, Wales, Scotland and Northern Ireland, but often figures given in Parliament or in the press are only for samples taken by the England and Wales forces.
The NDNAD includes DNA profiles of the DNA samples taken from individuals and profiles of the DNA found at crime scenes. Here are figures up-to 2008-09-01.
| (At 2008-09-01) | England & Wales forces | Other forces |
| Total number of subject profiles | 4,969,225 | 327,088 |
| Estimated total number of individuals | 4,319,807 | 273,358 |
| Total number of crime scene profiles | 320,335 | 13,749 |
The subject profiles consist of both profiles of DNA samples taken from individuals following arrest for a recordable offence, known as criminal justice samples, and profiles of subjects who volunteered a DNA sample (whether those that do so are sufficiently informed before they give their consent is an issue that was raised during the presentation of the Nuffield Council on Bioethics; the NDNAD Ethics Group has been discussing the volunteer consent form for DNA sampling and accompanying information), for example, for elimination purpose.
Another source of confusion is that the number of subject profiles on the NDNAD is higher than the estimated number of individuals on it. This is often misrepresented. It happens because some of the profiles held are replicates. Multiple samples are taken from the same subject and profiled when on different occasions there's confusion concerning the person's name. Replication also happens when the police decide to resample an individual. The number of replications is estimated at around 13 per cent (it varies over time and between police forces).
A common question is how many of these individuals are innocents. This is particularly difficult to find out.
First, the National DNA Database was allegedly never set up to record this information; this is in the Police National Computer (PNC).
Second, what is meant by innocent is not always consistent; the obvious definition of all those never charged and those acquitted may not map directly to the information available. The NPIA ran a report on 2008-03-31:
| (At 2008-03-31 for England & Wales forces) | Total individuals | Percentage of total |
| With a conviction, caution, formal warning or reprimand | 3,259,347 | 79% |
| No conviction, caution, formal warning or reprimand listed | 573,639 | 14% |
| Not known as PNC record removed | 283,727 | 7% |
| Estimated total number of individuals | 4,116,713 | 100% |
From the above table it can be deduced that, as of March 2008, there were DNA profiles for at least 573,639 innocent individuals and possibly for as many as 857,366 innocents. Fourteen to 21 per cent of the sampled individuals recorded in the NDNAD are innocent. Furthermore, that does not take into account any mistakes in the PNC.
What happens to the DNA samples and profiles of all those innocents? Most of them are kept and retained forever. The procedure to get off the NDNAD is complex and assume that one case is considered exceptional enough to justify such a procedure in the first place.
See El Reg's How to delete your DNA profile for more on this. (Note that the only process map the Metropolitan Police has published since is a rehash of the usual guidelines and the Specialist Crime Directorate 12 wrote that '[t]here is no additional information I can supply on this subject'.)
| Subject profiles removals | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 (adjusted) |
| England & Wales forces | 677 | 34 | 81 | 271 | 310 | 222 |
| Other forces | 23,492 | 19,160 | 21,580 | 21,969 | 21,265 | 19,164 |
The huge difference in numbers between removals of samples taken England & Wales forces and by other forces is due to differences between English & Welsh and Scottish laws. DNA profiles and samples of innocents taken by Scotland forces can't be kept forever.
Whether England and Wales forces can keep stalling on the removal of DNA profiles (and destruction of DNA samples) of innocents has gone all the way to the Grand Chamber of the European Court of Human Rights:
"The [Marper and S v. UK] case concerns the decision to continue storing fingerprints and DNA samples taken from the applicants after unsuccessful criminal proceedings against them were closed." The hearing was in February and the ruling will be given later this year. (Note that the adjusted figure for 2008 is based on data up to September adjusted for the rest of the year.)
I did not request the data for calendar additions to the NDNAD, but to put things in perspective, the yearly average number of subject profiles added to the NDNAD for the the financial years 2005-07 was 711,645 (NPIA NDNAD Annual report data). For England and Wales forces it was 646,767 (John Reid in Parliament written answers).
Profiling at a young age
There's particular concern as to how many young individuals are included in the NDNAD. Depending on whether you consider the NDNAD as a criminal database, being included in it at a young age is worrying.
| (At 2008-09-01) | England & Wales forces | Other forces |
| Total subject profiles from 10-17 year old | 343,745 | 10,671 |
The England & Wales forces again lead in in their aggressiveness to sample DNA. Six pe rcent of all the profiles in the NDNAD were taken by other forces, but only three percent of the DNA profiles of subjects 10 to 17 years old (when the report was ran) was for samples taken by other forces.
The NPIA last ran a more complete report concerning 10-17 year-olds on 2008-04-10:
| (At 2008-04-10 for England & Wales forces) | Total individuals | Percentage of total |
| With a conviction, caution, formal warning or reprimand | 264,297 | 87% |
| No conviction, caution, formal warning or reprimand listed | 39,095 | 13% |
| Estimated total number of individuals | 303,393 | 100% |
(The number of those with a PNC record is one less that the estimated total number of individuals. The NPIA did not state if there's one youngster with a PNC record already removed, which is unlikely or whether this should be viewed as a statistical error). From the above table, it can be seen that at least 39,095 innocent youngsters are affected.
If you happen to live in England or Wales, being young or innocent, or both, is not enough to ensure you won't be captured in this massive database. ®
Bootnote
It can be argued that retaining DNA profiles of individuals is not even effective in solving crimes. Helen Wallace, from GeneWatch, debunked this assumption last year when looking at who should be on the NDNAD:
"Collecting more DNA from crime scenes has made a big difference to the number of crimes solved, but keeping DNA from more and more people who have been arrested - many of whom are innocent - has not. Since April 2003, about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA has remained constant, at about 0.36%."
Read and comment on this article at El Reg...
(Two days ago, the Lords voted in favour of an amendment to the Counter Terrorism Bill, which aims 'to try to spark a national debate about the retention of samples and to inform the public about what information is being held on them'.)
Last Saturday was the tenth annual gathering of the families and friends of those who have died in custody in the UK. There was a silent march from Trafalgar Square to Parliament Square. It stopped by Downing Street for families to put pictures and flowers by the gate to Downing Street, they weren't allowed inside and the flowers were checked by Police officers. The march was followed by some talks. I learnt that 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. Nearly fourty years ago. This was for the death of David Oluwale. A few years ago, the film Injustice, documented deaths in custody - mainly black deaths - over a six-year period (it doesn't seem to be available anymore unfortunately).
According to the United Families and Friends Campaign, 182 individuals have died in custody in the last twelve months. The image on the left (click it for a more readable pdf) lists 2,533 individuals who have died since 1969 in the care of the Police, prisons, secure psychiatric units and immigration detention centres. The list is not complete as more died in such circumstances whose name is not known. Inquest also maintains a table of unlawful killing verdicts and manslaughter prosecutions in prison and police custody or pursuits since 1990.
Several persons asked me what's happening to the inquest into the death of Jean Charles de Menezes. It started on 2008-09-22 and is expected to last three months. The family maintains a website on the inquest, it includes a blog and directions if you want/can attend part of the inquest at the Oval. The Coroner also maintains its own website, remarkably it includes transcripts of all the open court proceedings. The transcripts tend to be around 200 pages per day, so it can be a bit daunting to go through though them. If you don't have the time to read any transcript in full, I'd recommend reading a few of the cross examinations by Michael Mansfield QC, representing the de Menezes family (search for 'Mansfield' in the transcripts). In addition to the press reports, UKLiberty runs a series of posts with very good summaries. I have been surprised by what seems to be a lack of common sense, which appear very unprofessional, such as not getting a detailed map of the location or for only a few officers to carry the picture of the suspect they were looking for. What I find worrying is for some officers, even now with three years of hindsight, to consider that nothing went wrong, that they didn't make any mistake, and it could happen again. For instance:
MR Mansfield: On that basis, there is a real risk, then, it could happen again.
D/Su Boutcher: There is, sir, yes.
MR Hilliard: [...] What went wrong?
DAC Dick: [...] If you ask me whether I think anybody did anything wrong or unreasonable on the operation, I don't think they did.
Mr Mansfield: [...] In consequence of one officers' reply to this jury, I asked him bluntly whether he thought it could happen again and he said yes. Do you say the same?
DAC Dick: I am afraid, sir, I do believe that this or something like this could happen again. [...]
To end on a more positive note, it is fascinating to have the possibility (time being the main limiting factor here) to follow this inquest in such details. This level of openness and transparency is welcomed and appreciated.
You can’t assume the scope of a law from what the government promises or its title:
The Government used anti-terrorism powers to freeze an estimated £4 billion of British financial assets in Landsbanki, Icesave’s parent bank. A spokesman for the Treasury said that the 2001 Anti-Terrorism, Crime and Security Act was invoked as a “precautionary measure”. (The Times)
“I won’t try to hide my surprise and disappointment when it became clear that the British government enforced the laws on defence against terrorism against Icelandic companies in the UK. Laws that were indeed very controversial when they were passed because of the inherent possibility of being abused in alternative situations, not involving terrorism at all. Perhaps we have now witnessed how that controversy was warranted.”
“These measures, along with the statements of the British PM, with whom I have by the way had very friendly relations, coupled with his statements about the defaulting and possible national bankruptcy of Iceland, can in fact be interpreted as an assault against the interests of the Icelandic nation, bearing in mind the difference in size and power between these two nations,” said Haarde.
He added that despite the fact that the British government had acted on the assumption of right against the Icelandic government over collateral and settlement of some bank accounts, the initiative of the British ministers had been completely out of proportion with the issues.
“We neither can, nor will (Icelanders), accept being cast as terrorists by the British government. When I asked the British Minister of Finance, in our conversation if they were serious about the title they were giving us, he denied it. But acting in this fashion against a smaller nation of friends in times of trouble is neither proper nor ethical,” said Haarde. (IceNews)
As UK Liberty puts it: ‘Promises that a law will only be used against terrorists are worthless. What matters is what the legislation itself says. We have problems if legislators don’t understand how legislation works.’
The government promised that measures in the Counter Terrorism Bill 2008 such as further extending detention without charge to 42 days or having secret inquest would be used only exceptionally. Thanks to the Lords these measures have been dropped from this bill. These are positive news but there are still many other unjust proposals remaining in this bill. Here's a list, based on work by CAMPACC, of some of these proposals:
Another unjust proposal in the Counter Terrorism Bill is to covertly collect DNA samplings and retain DNA profiles in a ‘CT [counter terrorism] DNA database’ - distinct from the National DNA Database (NDNAD) and most likely illegal unless this Bill passes. (DNA profiles of innocents were retained on the NDNAD before it became lawful to do so.). Spy Blog commented in a post analysing the Lords debate on this section: ‘That is an extremely dangerous power, to covertly enter premises and steal a DNA sample, without the person's consent or knowledge, and then to analyse it, again without consent. This must only ever be done under the most exceptional circumstances, under the strictest, independent safeguards, and with provisions for correcting the inevitable mistakes, none of which exist in this Bill.’
Lord West recognises that such provision in the Counter Terrorism Bill is not intended to be restricted to counter terrorism:
[T]he provision applies to samples otherwise lawfully obtained in the interests of national security for the prevention/detection of crime, the investigation of an offence, the conduct of a prosecution or for purposes related to the identification of a deceased. Such latter material might include material obtained during a criminal investigation other than through the exercise of covert powers—for example, during a search, from a crime scene or lawfully provided by a body other than another law enforcement authority, perhaps from the intelligence services of another state. (TheyWorkForYou)
Measures buried in a bill will be used to the extent described in the text of the bill. Not all measures in a bill against terrorism have much effect to make us all safer from terrorist actions. More proposals remain to be removed from the Counter Terrorism Bill 2008.
Key findings of the independent think tank Reform in The lawful society report:
- There has been a shift in responsibility in the criminal justice system, away from the individual and towards centralised institutions, demonstrated by 76% of Britons believing that the police and courts are responsible for controlling anti-social behaviour, compared to around 45% in France and Germany.
- Six out of ten people in Britain would be unlikely to challenge a group of 14 year old boys vandalising a bus shelter in the UK, more than Germany, the Netherlands, Italy, France Spain and the UK. In Germany, six out of ten would challenge the group.
- British people are more worried about crime and violence with 43 percent reporting it as one of their greatest concerns compared to 21 percent in Germany and 27 percent in the US.
- The UK spends the largest amount in the OECD on law and order as a percentage of GDP, with nearly 40% more in real terms spent in 2006/07 than in 1997/98. This is higher than the US, double that of Sweden, France and Denmark and around 50% greater than that of Canada, Germany and Japan.
- Administration costs across the criminal justice service have risen by around 10% since 2002/03 – faster than frontline expenditure, which has risen by 7% since 2002/03.
- International comparison shows that criminal justice is most effective where it is close to the public and has strong local accountability.
The Telegraph reveals that councils are recruiting, and paying, informers to snoop on their neighbours:
The youngsters are among almost 5,000 residents who in some cases are being offered £500 rewards if they provide evidence of minor infractions.
One in six councils contacted by the Telegraph said they had signed up teams of "environment volunteers" who are being encouraged to photograph or video neighbours guilty of dog fouling, littering or "bin crimes".
The "covert human intelligence sources", as some local authorities describe them, are also being asked to pass on the names of neighbours they believe to be responsible, or take down their number-plates.
(Henri Porter's latest column, Our obsession with crime is crushing our freedoms, comments on these news tidbits.)
Terence Eden streams live from his mobile phone being stopped and searched under Section 44(2) of The Terrorism Act 2000, without the need for any reasonable suspicion, at Waterloo station on 2008-08-19. (Length: 18 minutes 46 seconds.)
Omar Ahmet, an innocent man, arrested at gunpoint. He is white, the police were after a wanted black terrorist. This happened in Liverpool on 2005-07-27, six days after the shooting of Jean Charles de Menezes, and the day before my stop and search and subsequent arrest. (Length: 33 seconds.)
Rizwaan Sabir a student at the University of Nottingham was arrested on 2008-05-14 under the Terrorism Act 2000 and detained for six days without charge for having downloaded a document called the al-Qaida Training Manual, from a US Department of Justice website, for his PhD. He speaks about the 'psychological torture' his experience was. (Length 2 mins 16 seconds.)
Hicham Yezza was arrested with Rizwaan Sabir under the Terrorism Act 2000 and then re-arrested on immigration charges. He recounts how Britain's terror laws have left him and his family shattered (in the comments he adds some clarifications and some further ones).
An observation by the UN Human Rights Committee of the sixth periodic report submitted by the UK (via Index on Censorship):
26. The Committee notes with concern that the offence of “encouragement of terrorism” has been defined in section 1 of the Terrorism Act 2006 in broad and vague terms. In particular, a person can commit the offence even when he or she did not intend members of the public to be directly or indirectly encouraged by his or her statement to commit acts of terrorism, but where his or her statement was understood by some members of the public as encouragement to commit such acts. (art.19)
The State party should consider amending section 1 of the Terrorism Act 2006 dealing with “encouragement of terrorism” so that its application does not lead to a disproportionate interference with freedom of expression.
John Ozimek writes in El Reg on the offence to possess material, such as books, likely to be useful to someone preparing an act of terrorism (section 58 of the Terrorism Act 2000):
It is what follows – and the entire thrust of the law - that is questionable. First, the law: If you possess dodgy material, it is for you to explain why. Parliament could have legislated the other way around - it could have made it a crime to possess such material “with intent”. But it didn’t, so now you must prove yourself innocent.
Following Mr Sabir’s release, the police wrote to him. Allegedly, they warn that he risks re-arrest if found with the manual again and add: “The university authorities have now made clear that possession of this material is not required for the purpose of your course of study nor do they consider it legitimate for you to possess it for research purposes.” [...]
What the Police appear to be saying is that you can be given the all-clear as a bona fide researcher of terror material in the morning – then re-arrested the same evening for the same offence. Surely not, one might think, but that possibility is within the bounds of the Law.
It doesn’t help that the list of materials that could assist a terrorist is very wide. It would certainly encompass broad swathes of chemistry, physics and biology – as well as current military training. This has therefore provoked the accusation, in some quarters, that the Act is likely to be applied in a selective and racist fashion – with individuals whose skin is not quite white being far more likely to be asked to justify what is on their bookshelves or hard drive.
The Telegraph asks if our society has declared war on the humble 'weekend snapper' (via SpyBlog):
There is no law in this country that prevents people from taking photographs in public. None the less, Amateur Photographer magazine receives dozens of reports per month from readers who have been stopped and searched by police officers who seem to think otherwise. 'Sadly, many amateurs are not aware of their rights and are resigned to their fate,' says the magazine's news editor Chris Cheesman. 'Once they are stopped, and their name taken, the police have a record. And we only hear about those who are prepared to kick up a stink about it - there are sure to be many others that go unreported.' [...]
Vague laws being enforced by inexperienced officers makes for a dangerous combination. But while officers can be given clearer directives and stricter guidelines, it might be harder to calm the fears of an increasingly sensitive general public. 'I think the public are suspicious of people with cameras and the police sympathise with them,' says Stephen Carroll.
Some related posts:
The National DNA Database Ethics Group published its first annual report. It contains 11 recommendations. Two of these make it clear that the National DNA Database (NDNAD) is a ‘crime-related intelligence database’ (as opposed to an identity database). This implies that there is indeed stigma of being included in the NDNAD:
Recommendation I: Consideration should be given to further public clarification of the role of the NDNAD and reinforcement of the message that it is intended only to be used for criminal intelligence.
Recommendation J: Consideration should be given to formally announcing publicly that the NDNAD will only be used for the currently described purposes (i.e. criminal intelligence) and will never transform into a repository for the whole nation’s DNA characteristics.
Two other recommendations show the Ethics group wants it much easier for innocents to get off the NDNAD:
Recommendation G: A clearer, simpler and less cumbersome process needs to be put in place to enable those who wish to appeal against the decision of a Chief Constable to retain their DNA profile on the NDNAD.
Recommendation H: Consideration should be given to reviewing the definition of ‘exceptional circumstances’ and ensuring that the reasons for the retention of data and samples are aligned with data protection legislation, human rights legislation and the concept of proportionality.
The Human Genetics Commission (HGC) published the findings of its Citizens’ Inquiry into the Forensic Use of DNA and the National DNA Database. This report contains 29 core recommendations, some mirroring those of the NDNAD Ethics Group. Hear Sir John Sulston, HGC's acting Chair, comment on the purpose of the NDNAD to the BBC:
We need to go back to the basic question - what is this database for? Is it really intended as an ID database, which is perfectly arguable, and then you could use it for many purposes, including solving crime, including the identification of lost bodies. Or do we regard it, as I believe the police do at the moment, as a criminal database? If it is the latter there is a stigma attached to being on it and we have to be absolutely clear about that purpose.
A majority of respondents are also in full agreement that innocents should not be on the NDNAD:
Recommendation 18: If a person whose DNA has been loaded on to the database is found to be innocent or is released, the DNA sample must be destroyed and the profile removed from the database by law. Innocent people on the database should now be removed.
Increased transparency was favoured by a majority:
Recommendation 3: The government should fund the National DNA Database but not own it. The database should be owned by an independent body accountable only to the general public. Lay people should be recruited onto the independent body through equal opportunity processes.
The findings of the Citizens’ Inquiry will help to focus the HGC’s evidence gathering and further consultation, the results of which will be drawn together in a final report expected in early 2009. A consultation for members of the public is open until 2008-11-07.
Using freedom of information requests, Jenny Willott, LibDem MP who last month called for a new regulatory framework to remove DNA samples and profile of innocents, found out that the Home Office approved 25 applications for research projects using DNA profiles from the NDNAD. No one whose DNA is being used in these projects has given their consent. Five research projects were from private companies that refused to release some details because it would harm their commercial interests. DNA samples of innocents taken by the police are being used for commercial gain by private companies.
Some related posts:
After having been in the very lucky position of managing to get my DNA samples destroyed and profile deleted, I was shocked to find the destruction and removal steps to be ad hoc. This left me with little confidence in the effectiveness of the actions taken in such circumstances so I pressed for a process to be created and published. See How to delete your DNA profile (El Reg) for more details. In September 2007, I started an email conversation with a Senior Information Manager at the Metropolitan Police Service's Specialist Crime Directorate (SCD12); he wrote:
[T]here is no process map in existence for this practice. [...] An exceptional case process map will be available on the MPS Publication Scheme early 2008. The MPS website address is www.met.police.uk if you should wish to view it when it appears.
I noticed that on Friday (2008-06-27), Version .1 of the Exceptional Case Requests - Consideration for the Removal of DNA, Fingerprints and PNC Records had been published by the Specialist Crime Directorate / SCD12 on the Metropolitan Police Service Freedom of Information Publication Scheme page. The document was created on 2007-09-17, at the very same date I received the email above. This publication, disappointedly, still focuses only on the process to decide if a case is exceptional enough for the Police to consider relenting and exercising its discretion to ‘accede to requests from data subjects for their DNA and fingerprints to be destroyed, together with the deletion of the supporting entry on the Police National Computer (PNC)’:
All requests for the consideration of deletion of such records received by the MPS will be referred to the Exceptional Cases Unit [SCD – Freedom of Information Act Compliance Unit] for processing in accordance with National Policy. Although exceptional cases will be extremely rare the circumstances will be considered and the Commander for Operational Information, Intelligence and Learning will make the final decision on behalf of the Commissioner. They might include cases where the original arrest was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance.
A flow chart for this process was published in the Retention Guidelines for Nominal Records on the Police National Computer, incorporating the Step Down Model.
We are no more early 2008 and still awaiting a process map describing in details what happens after the Police reaches a decision to delete. Which Police department and contractors are involved, what actions they each take, how it is ensured removed data is not restored in case some computer tapes need to be restored, how it is all supervised, etc.
P.S. If you want to follow links from the ‘Further information’ section of the Consideration for the Removal of DNA, Fingerprints and PNC Records, you'll have to retype them as all documents from the MPS are locked preventing copying/pasting from them without the proper password. What could be the reason? Here are a direct links to the Home Office National DNA database documents and other information page and the Exceptional Case Procedures for Removal DNA, Fingerprints and PNC Records Word file.
In another related news, GeneWatch has published a detailed deconstruction of Gordon Brown's deliberately misleading claim that not retaining genetic profiles of innocent people on the National DNA Database (NDNAD) would have led to 114 murderers getting away. See also UKLiberty's Gordon’s civil liberties speech to the IPPR for an analysis of other parts of his speech.
Meetings notes from the recently established NDNAD Ethics group are available on The National DNA Database Ethics Group page at the Home Office.
Another DNA related blog post this month: Calls for a new regulatory framework to challenge DNA samples and profile retention.
Binyam
Mohamed is a British resident still held in
Guantánamo. He came to Britain as an asylum
seeker in 1994 and was granted indefinite leave to remain. He was
seized in 2002 and has since been tortured, including with a razor
blade taken to his genitals and with loud non stop music, by or on
behalf of the US in Morocco, in Afghanistan and is
currently in Guantánamo Bay on a hunger strike. With George
W. Bush having tea with the Queen and dinner with Prime
Minister Gordon Brown today, Reprieve,
the legal action charity, that represents over 30 others
Guantánamo prisoners organised a demonstration in
Trafalgar Square to call for Brown to ask Bush to send Binyam back home
to Kensington, London.
Binyam Mohamed testified:
'It was pitch black no lights on in the rooms for most of the time.... They hung me up. I was allowed a few hours of sleep on the second day, then hung up again, this time for two days. My legs had swollen. My wrists and hands had gone numb.... There was loud music, [Eminem's] "Slim Shady" and Dr. Dre for 20 days....'
Clive Stafford-Smith, the legal director of Reprieve, suggested that musicians use copyright law to hold the American government to account for its use of music to torture detainees in Afghanistan, Iraq and Guantánamo. I wrote more about this for El Reg in Fighting torture with copyright - Moral musos work to rule. Follow-ups by some readers included an investigation by Roger Parloff in the Legal Pad at CNN Money as to whether torture is fair use in the context of copyright law, and the suggestion by Guillaume Champeau on French site Ratiatum that maybe the US army should buy music labels if the use of music for torture is so essential to its modus operandi.
Reprieve has launched the ‘Stop
the torture’ initiative. Be sure to check out the
list of artists and/or songs used for torture in Guantánamo,
Iraq and secret prisons, and the call for action on the Stop the
torture page. Mother Jones also published a ‘torture
playlist’.
To dramatize the torture-by-music that Binyam and other prisoners have suffered, Reprieve invited today Barney the Purple Dinosaur as the theme tune to this popular children’s show has been one of the US torturers’ favourite pieces of torture music. Other guests were creative ‘cartoon characters’: Katy the Kangaroo Court, and Roger the Razor Blade. Cosmetics firm Lush, who have been supporting the work of Reprieve, brought along ‘Fair Trial My Arse’ orange underpants, to highlight the nature of the unjust process that Binyam is facing. (The US military once alleged that Reprieve smuggled contraband underpants in Guantánamo.)
In an interview with Democracy Now! earlier this year, Clive Stafford-Smith pointed out that as much as we may be shocked by what's going on at Guantánamo, it is just the tip of the iceberg:
And if you look at Guantánamo Bay, 270, roughly, as you mentioned, prisoners in Guantánamo, but according to the most recent official figures, the United States is currently holding 27,000 secret prisoners around the world. So that means that 99 percent of these folk are not in Guantánamo Bay.
Reprieve had organised a musical torture of its own for the afternoon when all demonstrators accompanied a band to the tune of Nick-Nack Paddywhack, the tune used in Barney's ‘I love you, you love me’ with the ‘Bring Byam Home’ song:
1. This poor man, in a cell,
Music is his living hell!
Razorblade, waterboard,
Cut him to the bone!
Gordon Brown, bring Binyam Home!2. Rock and roll, children's song.
Bursting eardrums isn't wrong!
Razorblade, waterboard,
Cut him to the bone!
Gordon Brown, bring Binyam Home!3. Laws for us, not for them,
Nameless people we condemn –
Razorblade, waterboard,
Cut him to the bone!
Gordon Brown, bring Binyam Home!
4. Men in suits, men in ties,
Making them confess to lies –
Razorblade, waterboard,
Cut him to the bone!
Gordon Brown, bring Binyam Home!5. You should sign, just say yes,
We won't make your face a mess –
Razorblade, waterboard,
Cut him to the bone!
Gordon Brown, bring Binyam Home!6. We want men, take five grand,
Say he shook Osama's hand!
Razorblade, waterboard,
Cut him to the bone!
Gordon Brown, bring Binyam Home!7. Don't much care, if it's true,
We've got Freedom's work to do –
Razorblade, waterboard,
Cut him to the bone!
Gordon Brown, bring Binyam Home!8. Head in the hood, arms in chains,
Backs bent to increase the pain –
Razorblade, waterboard,
Cut him to the bone!
Gordon Brown, bring Binyam Home!
9. Burning lights, tortured nights,
Just give them Iguana's Rights!
Razorblade, waterboard,
Cut him to the bone!
Gordon Brown, bring Binyam Home!10. If we make, cowboy laws,
We're not good guys any more!
Razorblade, waterboard,
Cut him to the bone!
Gordon Brown, bring Binyam Home!11. Mister Bush, Gordon Brown,
Time to close this torture town –
Razorblade, waterboard,
Cut him to the bone!
Gordon Brown, bring Binyam Home!
(Coincidentally, WMMNA published today a post on the Guantánamo museum and other tales of extraordinary rendition at Helga de Alvear gallery in Madrid, an exhibition on extraordinary rendition.)
After members of Parliament voted 315 to 306 to extend the detention period from the current 28 days, a politician resigned from Parliament to protest against the insidious and monstrous erosion of civil liberties in Britain and fight against the slow strangulation of fundamental British freedoms by this Government. His statement can be watched on the Beeb and a full transcript is published by the Independent:
[...] In truth perhaps 42 days is the one most salient example of the insidious, surreptitious and relentless erosion of fundamental British freedom.
And we will have shortly the most intrusive identity card system in the world. A CCTV camera for every 14 citizens, a DNA database bigger than any dictatorship has, with thousands of innocent children and millions of innocent citizens on it.
We have witnessed an assault on jury trials, a bolt against bad law and its arbitrary use by the state.
And shortcuts with our justice system, which will make our system neither firm nor fair and a creation of a database state opening up our private lives to the prying eyes of official snoopers and exposing our personal data to careless civil servants and criminal hackers.
The state has security powers to clamp down on peaceful protest and so-called hate laws to stifle legitimate debate, whilst those who incite violence get off scot-free.
This cannot go on, it must be stopped, and for that reason today I feel it is incumbent on me to take a stand. [...]
A gesture that restores some faith in politicians. Some of the debates are encouraging as well. The Counter-terrorism bill will hopefully be defeated by the Lords.
The Select Committee on Home Affairs calls for a regulatory framework to make it easier for innocents to challenge the decision by the Police to retain their DNA samples and profile; Jenny Willott, MP, calls for a law to require destruction/removal of DNA samples and profile of innocents; the ECHR is to rule later this year about whether the UK is breaching human rights by retaining DNA samples and profile of unconvicted innocents. These unrelated news items show a growing concern from many different quarters about the retention of DNA samples and profile of innocents. Hopefully a sign that laws will change to restore some of our eroded civil and human rights.
In its Fifth Report, The Select Committee on Home Affairs ‘examined aspects of the Home Office's responsibilities in relation to the collection and sharing of personal information—including CCTV or video surveillance, identity cards and the National DNA Database—and considered how information collected in other public and private sector databases might be shared for use in the fight against crime. [They] recommend that the Home Office exercise restraint in collecting personal information, and address the question of whether or not surveillance activities represent proportionate responses to threats of varying degrees of severity.’ Some of the recommendations in the section on the National DNA Database are specifically about retention of the DNA profiles of innocents:
285. There have been calls for an expansion of the National DNA Database to include profiles connected with non-recordable offences and for a 'universal database' and for the Government to reconsider its policy on retaining the profiles of those who have been arrested but not charged. In order to facilitate a full debate and an appropriate level of Parliamentary scrutiny we recommend that alongside any conclusions of the PACE review the Government introduce primary legislation to replace the current regulatory framework for the National DNA Database. We recommend that this legislation provide for a more accessible mechanism by which individuals can challenge the decision to retain their records on the Database.
286. The Government should reconsider the ways in which National DNA database information is collected, handled, stored and transferred. In particular we recommend that in order to minimise the data held, the Home Office and the police should review the identifiers used for samples and the policy of retaining samples.
Jenny Willott, the Liberal Democrat MP for Cardiff Central, was arguing today in Parliament to be given the leave to ‘bring in a Bill to require the removal from the DNA Database of DNA samples taken from individuals who are not charged or are acquitted; and for connected purposes’:
Everyone accepts that DNA has been a massive breakthrough in crime detection, helping to solve the crimes of today and also some of the cold cases from 20 to 30 years ago. However, the Government have pursued this breakthrough in a disproportionate way.
The UK has by far the largest DNA database in the world, with 4.5 million people registered. Proportionally, five times more people are on our database than is the case with the next closest country. We think of the US as having a punitive criminal justice system, but less than 1 per cent. of its population is on the US database, whereas we have around 6 per cent. Moreover, it has been estimated that under current laws, the database will expand to include one in four of our adult male population.
The number of children on the database is particularly worrying. At the moment, it is estimated that it contains entries for more than 700,000 people who were under 18 when they were arrested and their DNA was taken. In case hon. Members think that some of them might have deserved what they got, I should add that there are estimated to be more than 100,000 children under 18 on the database who have never been convicted, cautioned or charged with any offence.
I am sure all hon. Members will have seen various crazy cases across the country. There are examples from every constituency. A quick trawl of press clippings threw up the case of three children who were hauled into a police station because they climbed a cherry tree to build a tree house. They were arrested for criminal damage and had their DNA taken, but the case was never taken any further. Another example is the 14-year-old boy who was a victim of mistaken identity when teachers at his school gave police the wrong name after a brawl between pupils.
Even after admitting they had arrested the wrong boy, the police refused to remove his DNA. Whereas in the past schoolboy fights, high jinks and lads climbing trees would have resulted in a stern word and them being taken home, children are now getting criminal records and their DNA is being held on the database for ever.
We should also be worried about the sheer number of ethnic minorities on the database and the racial imbalance. Almost 40 per cent. of black men have their DNA profile held, compared with 13 per cent. of Asian men and 9 per cent. of white men, despite the fact that there is no evidence that black men disproportionately commit crime. In fact, evidence suggests that white men are more likely to offend than black men. This over-representation of black men creates mistrust and continues to fuel problems that are much larger, such as the disproportionate representation of black men in our criminal justice system. Also, problems of race relations, community cohesion and discrimination, either perceived or real, are made worse. Moreover, the situation is getting worse. At the current rate, more than half of all black men will be on the database within two years.
This highlights one of the main objections to holding the DNA of those who are not charged or who are acquitted. One of the fundamental tenets of British justice is “innocent until proven guilty”. Refusing to destroy samples taken from those who are never charged or who are later acquitted completely blurs that principle. The DNA database assumes that people will be guilty of something in the future; that is why the samples are kept. This is very Big Brother; George Orwell must be spinning in his grave.
When the national DNA database was created in 1995, only the DNA of convicted offenders could be held, and samples had to be destroyed if the suspect was acquitted or charges were dropped. Because by 2001 the Government were breaking their own law—presumably as a result of incompetence rather than design—the law was changed to allow the profiles of those acquitted of certain crimes to be kept. That was expanded even more in 2004, when samples could be taken from anyone arrested for a recordable offence. By the end of 2005, 200,000 samples which would have been destroyed before 2001 had been retained, and that number has since soared. There are now estimated to be more than 1 million people who have not been charged or convicted on the database—three times the population of a city the size of Cardiff, where I live. Those are 1 million people considered innocent under British law, but considered potentially guilty by the Home Office. By retaining that DNA, the state is saying, “Well, you might not have been convicted, but we think you may commit an offence in future and we want to make sure we can catch you when you do.” That is not acceptable.
It is almost impossible, however, for someone to remove their sample from the database. Since the changes in 2004, fewer than 700 people have managed to remove their profiles—700 out of the 1 million innocent people on the database. The police control which samples are removed. People have to apply to the chief constable of the force that took the sample in the first place, who is hardly an independent arbiter. The Government may be forced to change this shortly, as there is a case before the European Court of Human Rights, brought by two men from Sheffield—one of whom was under 18 at the time—who have applied to have their DNA removed on the grounds that they were both cleared and neither has a criminal record. The ECHR is expected to rule this summer, and a finding against the Government could open the floodgates on this issue.
Even if some people might not agree with the civil liberties case for removing the DNA of innocent people, there is a very strong practical case. The Government have already said that they believe that the DNA of the majority of the active criminal population is now recorded, so why the mad rush to take samples from so many other people? The DNA database is not without cost. The costs of sampling increasing numbers, maintaining an expanding database and storing millions of samples will continue to grow.
However, there is very little evidence that these increasing costs will have much of an impact on crime detection. Despite the massive expansion in the number of individuals on the database, the percentage of recorded crimes solved as a result of a DNA match has remained fairly constant; the figures I have seen show it to be below 0.4 per cent. A bigger difference has been made at the other end of DNA matching: at the crime scene. At present, less than 20 per cent. of crime scenes are forensically examined, and only a small proportion of them yield any biological material that is then tested. Clear-up rates are much higher when DNA is found at a crime scene, so should we not be putting resources into that end of things, rather than into collecting individuals’ samples?
One argument often used to justify the keeping of DNA is that it will help to solve cold cases, but that is fallacious. When someone is arrested and their DNA is taken, that should be tested against unidentified crime scene DNA, as is done. That will identify whether they have committed any unsolved crimes, and that is fine, but if they have not, holding their DNA after that point is irrelevant. In addition, the massive cost of holding the samples is borne by police forces. I am sure that I am not alone in thinking that the money might be better spent on front-line policing, to ensure that fewer crimes are committed and our communities are kept safe.
Following the European case, the Government may have to change their policy anyway, but I would like to propose a solution. Some countries, such as Scotland, France and Canada, have legislated against retaining DNA samples from those who are acquitted. I believe we should follow their lead, and remove innocent people’s DNA from the database. Samples and profiles should be destroyed if the individual is not convicted or cautioned, although there should be an exception for those accused of a violent or sexual offence. Their samples should be kept—not indefinitely, but for a specified time. In addition, all children under 16, unless guilty of a violent or sexual offence, should have their DNA removed from the database. If we treat them like criminals at such an early age, they may well go on to fulfil our expectations.
We are talking about a huge number of people—1 million of them—whose deeply private information is being held by the Government when they have not been found to have done any wrong. That goes against fundamental British principles, as well as being a massive drain on public resources for little gain, and this Bill would rectify that injustice.
Question put and agreed to.
Bill ordered to be brought in by Jenny Willott, Sarah Teather, Tom Brake, Mr. Paul Burstow, Chris Huhne, David Howarth, Kelvin Hopkins, Keith Vaz, Mr. Gordon Prentice and Mr. Stephen Crabb.
Jenny Willott accordingly presented a Bill to require the removal from the DNA Database of DNA samples taken from individuals who are not charged or are acquitted; and for connected purposes: And the same was read the First time; and ordered to be read a Second time on Friday 17 October, and to be printed [Bill 118].
You may remember that last year, the Metropolitan Police Service Specialist Crime Directorate 12 (MPS SCD 12)] promised to publish early 2008 a process map detailing how they go about removing the information from the NDNAD and associated databases and destroying the samples. This is still to happen. I expect to hear more soon when the Senior Information Manager looking after this process comes back from his annual leave.
When the Independent Police Complaints Commission (IPCC) confirmed reception of my appeal to the decision of the IPCC-supervised enquiry, it made clear that this would be the last step of this process:
Please note that the decision made by the IPCC about your appeal is final.
This was again reiterated with its decision about my appeal:
If you have any questions or need more information about this please contact me. However, this decision is final.
Until now I understood this to mean that – in the process of a complaint to the IPCC – the IPCC's decision in an appeal was the last possible step of this process. Apparently, not always.
From the press release on the ‘Damning Verdict on Police Complaints watchdog’:
Nicola Dennis, a mother of three, (represented by Stephen Cragg) made her complaint about the police after enduring a terrifying ordeal one Saturday morning in November 2005. Nicola was spending a quiet morning at her home with a friend when armed officers suddenly appeared at her door. It turned out later that they were chasing the possibly armed suspects of the murder of PC Sharon Beshenivsky in Bradford the previous day.
Nicola was pulled out of her house at gunpoint, pushed to the ground and made to lie face down with her hands cuffed behind her back. Nicola was convinced she was going to be shot at any moment. She was only released when it became clear she had nothing to do with the suspects. Later that day an officer came to Nicola's house and made a clumsy attempt to provide an explanation of why the officers had acted as they did. Nicola was told that she just happened to be in the wrong place at the wrong time. The court heard that Nicola remembers that the officer told her 'when it's one of our own we go in harder'.
Nicola was horrified and upset at the way she had been treated by the officers. She made a complaint to the Metropolitan Police. Her complaint was not upheld so she appealed to the IPCC, the public watchdog tasked with overseeing police complaints. But the appeal findings she got from the IPCC were confusing. The caseworker even muddled up the actions of the two officers involved. One of the officers was criticised for being 'over zealous' but the caseworker did not match her criticism with a clear finding about whether his actions were right or wrong in law.
Nicola applied to the High Court for the IPCC's appeal findings to be reviewed by a judge on the basis that they were flawed and irrational.
High Court Judge Mr Justice Saunders found in the favour of Nicola Dennis and ruled that the IPCC's appeal decision must be quashed. From the draft judgment:
41. I am satisfied that taken as whole this appeal decision is fatally flawed and is irrational in that it is based on a misunderstanding of the facts and lack of clarity in reasoning which renders the decision difficult to understand. It also includes criticisms of a police officer which are unjustified.
47. I have been supplied with and have considered further written submissions as to remedy. Having considered those submissions together with my findings, I am satisfied that the appeal decision [of the IPCC] must be quashed.
Gareth Peirce, ‘a lawyer who has since the 1970s represented individuals accused of involvement in terrorism from both the Irish and the Muslim communities’ explores in the London Review of Books whether the position of Muslims in Britain is what it was like for the Irish. It is a longish article, very well written, in a calm voice, which raises serious issues that too many may not be fully aware of: ‘Over the years of the conflict, every lawless action on the part of the British state provoked a similar reaction: internment, ‘shoot to kill’, the use of torture (hooding, extreme stress positions, mock executions), brutally obtained false confessions and fabricated evidence. This was registered by the community most affected, but the British public, in whose name these actions were taken, remained ignorant: that the state was seen to be combating terrorism sufficed.’ Please, do read her article in full.
[...] The answer lies in Blair’s warning: ‘The rules of the game have changed.’ Previously accepted boundaries of freedom of expression and thought have been redefined and are now in effect being prosecuted retrospectively, with the result that our criminal justice system is becoming further distorted as many truly innocent defendants plead guilty, against their lawyers’ advice, terrified by the prospect, as they see it, of inevitable conviction and ever lengthening prison sentences. Thousands of others, all of whom have searched the internet, watch with horror the process of criminalisation and punishment.
In this country we did not grow up with a written constitution and human rights legislation entered our law only recently. In times of tension we struggle to find answers to basic questions. Are there rules and can they be changed? Are there legal concepts that protect a community under blanket suspicion, or should that community’s adverse reaction to suspicion be seen as oversensitivity in the face of perceived political necessity? Should we accept the concept of the greatest good for the greatest number? The answer is again the same: we are bound by international treaty and, belatedly, by domestic human rights legislation, to hold that there are inalienable rights that attach to the individual rather than society. Article 8 of the European Convention protects not only respect for family and private life, but also the individual against humiliating treatment; Article 10 protects freedom of expression, Article 9 freedom of thought, conscience and religion, and Article 14 guarantees that in the enjoyment of these rights any discrimination is itself prohibited. Occasionally, fierce campaigning successfully sounds an alarm: the proposed extension from 28 to 42 days of the time allowed for questioning those suspected of involvement in terrorism is being energetically fought. But there are less obvious erosions of parallel rights.
If this is indeed how it was for the Irish, we should urgently try to understand how significant change came about for them. Much current reminiscence ignores vital factors, such as the inescapable responsibility of the Irish Republic and, above all, the political weight of the Irish diaspora and the far-sightedness of those who began and maintained contact, long before Blair was elected and claimed the ultimate prize. Throughout the thirty years of conflict, forty million Americans of Irish descent formed an electoral statistic that no US administration could afford to ignore. It is said that on the night before he decided to grant a visa to Gerry Adams, Bill Clinton watched a film about the catastrophic injustice inflicted on one Irish family by the British state. Here, Lord Scarman and Lord Devlin, retired law lords, joined Cardinal Hume, the head of the Catholic Church in England, in educating themselves in the finest detail of three sets of wrongful convictions involving 14 defendants. At one critical moment Cardinal Hume confronted the home secretary, Douglas Hurd, challenging the adequacy of his briefing.
No similar allies for the Muslim community are evident today, capable of pushing and pulling the British government publicly or privately into seeing sense. Spiritually, the Muslim Ummah is seen as being infinite, but the powerful regimes of the Muslim world almost without exception not only themselves perpetrate oppression, but choose to work hand in hand with the US and the UK in their ‘war on terror’. It is for us, as a nation, to take stock of ourselves. We are very far along a destructive path, and if our government continues on that path, we will ultimately have destroyed much of the moral and legal fabric of the society that we claim to be protecting. The choice and the responsibility are entirely ours.
(Discovered via Dick Destiny.)
More on Gareth Peirce in English legal system contaminated.
On 2008-04-23, Gareth Peirce will join Independent columnist Yasmin Alibhai-Brown, poet and writer Benjamin Zephaniah, chair of the Independent Police Complaints Commission Nick Hardwick, and Guantanamo survivor Moazzam Begg in a panel discussion on Racism and the state of Britain chaired by chaired by Asad Rehman - Newham Monitoring Project.
The Governance
of Britain – Analysis of Consultations summarises the responses it received to the Managing
Protest
around Parliament consultation as follows:
11. The Government received 512 responses during the 12 week consultation period. Representations were received from 25 campaign groups, from six MPs and two Peers, from a number of other interested stakeholders including the Metropolitan Police Service, the Greater London Authority,Westminster City Council and the Law Society of Scotland. However, most responses – over 90 percent – were received from members of the public.
12. The vast majority of responses – over 95 percent – either explicitly or implicitly called for the straight repeal of sections 132 to 138 of the Serious Organised Crime and Police Act (SOCAP), rejecting arguments that a distinct framework for managing protest around Parliament could be justified on security grounds, or on grounds that the business of Parliament needed special protection, or by a need to safeguard wider public enjoyment of the space.
13. There was a clear and strongly articulated view that sections 132 to 138 of the Serious Organised Crime and Police Act, and in particular the requirement to notify the police in advance, have restricted and stifled spontaneous protest in the area around Parliament.There was also a clear view expressed by members of the public that the area around Parliament is special in that it is the focus of political protest and that nowhere is the right to protest and voice one’s views more important than at the seat of Parliament itself.
On an unrelated news The Governance of Britain – Draft Constitutional Reform Bill
starts with the repeal of the sections 132
to 138 of SOCPA (this act is more commonly abbreviated to SOCPA than SOCAP):
PART 1
DEMONSTRATIONS IN THE VICINITY OF PARLIAMENT
1 Repeal of sections 132 to 138 of the Serious Organised Crime and Police Act 2005
(1) Omit sections 132 to 138 of the Serious Organised Crime and Police Act 2005 (c.15) (which regulates demonstrations in the vicinity of Parliament)
(2) In the Table in section 175(3) of that Act (transitional provision relating to offences) omit the entries relating to section 136.
(3) In paragraph 1(1) of Schedule 2 to the Noise and Statutory Nuisance Act 1993 (c.40) (which is about consents for the operation of loudspeakers) omit "or of section 137(1) of the Serious Organised Crime and Police Act 2005".
(4) Omit paragraph 64 of Schedule 6 to the Serious Crime Act 2007 (c.27)
This intention is welcomed, but at this stage this is just a draft bill which may be changed and will take time to come into force. If this happens then we'll return to the status quo before these sections came into force – minus all the arrests of peaceful protesters in the designated zone and the time wasted by protesters and the Police alike in dealing with the required authorisations.
What do Marper, S., Kevin Reynolds and myself have in common? We're all innocents who have had our DNA taken following an arrest. I have been the lucky one as it only took me two years to get my DNA profile removed and samples destroyed. Marper & S. are fighting it all the way to the European Court of Human Rights (ECHR), and Kevin Reynolds has had to go through a traumatic arrest, which could have been avoided had the Police immediately checked his previously retained DNA profile.
After having gone all the way to the Grand Chamber of the ECHR, the Marper
and S v. UK is viewed as a test case about whether the UK is breaching human
rights by retaining DNA samples and profiles of unconvicted innocent people. The hearing of this case by is
available to watch online and the ruling will be given later this year:
As mentioned two weeks ago, you can:
Helen Wallace from GeneWatch, name checked during the hearing, makes a very strong argument that there is a diminishing return from adding more individuals' DNA profiles to the National DNA Database (NDNAD). Here's an extract from the GeneWatch page on its contribution to the Nuffield Council on Bioethics consultation:
Collecting more DNA from crime scenes has made a big difference to the number of crimes solved, but keeping DNA from more and more people who have been arrested – many of whom are innocent – has not. Since April 2003, about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA has remained constant, at about 0.36%.
The recent conviction of Mark Dixie for the horrific murder of Sally Anne Bowman has been used in the ECHR hearing and by the Police to justify and demand retention of DNA of even more individuals:
The policeman who led the hunt for Sally Anne Bowman's killer today called for a national DNA register. Detective Superintendent Stuart Cundy said having everyone's DNA on file would speed up arrests and cut down on further offending.
What Detective Superintendent Cundy didn't mention is how, in this very same case, the data retained on the National DNA Database was ignored to arrest an innocent for murder, indecent assault and robbery. Let's go into more details of the case of Kevin Reynolds to understand how retaining DNA samples and profiles of innocents does not automatically help to eliminate them as suspect in investigation.
Postman Kevin Reynolds had had his DNA and fingerprints taken on 2002-06-14 when he was charged, but later acquitted, with being drunk and disorderly. The profile was loaded on the NDNAD on 2002-07-04. Even though he was acquitted, his fingerprints and DNA profile remained on file.
Fast forward to 2005-12-12, when following complaints by a jilted girlfriend, Kevin is taken into custody at the Edmonton Police station at 02:10. He is led to the fingerprinting room to have his fingerprints taken and DNA sampled. The Livescan fingerprinting system confirms Kevin's identity and give his CRO number. So even if there are several Kevin Reynolds with the exact same date of birth living at the same place, Livescan has confirmed that this is the Kevin Reynolds for which the Police has retained a DNA profile (and samples). Here are the Livescan sheet for Kevin and an extract from the IDENT1 Livescan manual:
Search Result (SRE)
An SRE is returned to the Livescan unit. This will be received after the ACK and once the search has been completed (and verified if requested). This will contain the result of the search. If a search is verified, i.e. has been viewed by a fingerprint expert, there will be one CRO. If the search is non-verified, there may be up to four respondents displayed, with system confidence ratings (High, Medium, or Low). If the result is a no trace, No Respondents will be displayed.
Nothing was explained to Kevin. When they took him to the fingerprinting room, he asked why they were doing this as they already had his fingerprints and DNA. He received no reply. Even though Livescan confirmed the identification, DNA samples were again taken from him. This has recently been confirmed by the Forensic Science Service (FSS):
The sample which you supplied to the Metropolitan Police Service on 12 December 2005, in connection with a murder inquiry, was analysed by the FSS in order to generate your DNA profile. Your DNA profile was compared against the DNA profile obtained from the crime scene. Additionally your DNA profile record relating to this sample was submitted to The National DNA Database and is now retained, in compliance with legislation, on The National DNA Database.
Kevin is placed in cell. At 04:50 the wicket of the cell opens and the officers ask Kevin to come to the cell door. He is told he is ‘arrested on suspicion of the murder of Sally Ann [sic] Bowman [...] and cautioned’. His reply: ‘Who? Who is Sally Ann Bowman?’
A news article from the Metropolitan Police Service explains: ‘At an early stage DNA was recovered from the murder scene, which police believed identified the murderer.’ The Police had profiled the DNA from the crime scene, they had a man in their custody for whom they already had a DNA profile loaded in the system, the identification of this man was even confirmed by Livescan, and they still arrested him for the murder of Sally Anne Bowman? Kevin's DNA profile on the NDNAD would have been sufficient to show there was no match and clear him from suspicion.
It doesn't stop there. At 14:15, Kevin is further arrested for indecent assault and for the robbery in Sanderstead Road (this attack is linked to the murder of Sally Anne Bowman). He reiterates: ‘I am completely innocent’. At 21:18, Kevin is taken to a double identity parade using video capture; he learns two hours later from his solicitor that both id parades were negative and in one of them another person was picked out. At 12:09 the next day, Kevin is formally interviewed, and close to half an hour in the interview, the interviewing officer's phone beeps to tell him that Kevin's DNA didn't match the crime scene's DNA, and he's eventually released as no further action (NFA'd).
He then goes home and find his father's house, where he was living, smashed to pieces and to learn his car is in some pound in south London. The specialist search team were still in his house but leaving. His father commented to the Morning Star:
"They pulled my house apart - breaking furniture and damaging the walls - and went through all my files. Yet, I was not asked a single question about my son," he says.
Kevin told the Eye:
“My heart goes out to the Bowman family, but it makes me very angry that time, money and energy were wasted pursuing me when it was known all along that I could not be the killer. I dread to think what would have happened had one of the witnesses identified me in the line-up. My case shows that the database does not protect innocent people from wrongful arrest and detention.”
Kevin's DNA eventually cleared him after more than 34 hours and a harrowing experience. Having his DNA retained should have cleared Kevin immediately, but it did not. They did not use the retained DNA samples and profile. DNA appears to be used only when convenient for the Police, with little respect for innocent individuals.
The cost of criminalising a whole population in the hope of being better at catching criminals is a price to high to pay when the case for a better detection rate with an increasing larger database has not even been made. Calls, such as the Times reports, are dangerous propaganda as the innocents do have to fear:
The detective who led the Bowman investigation said: “It is my opinion that a national DNA register could have identified Sally Anne’s murderer within 24 hours.” The innocent would have nothing to fear, while the guilty would be caught. It could even deter criminals.
Gary Pugh, director of forensic sciences at Scotland Yard and the new DNA spokesman for the Association of Chief Police Officers (ACPO), has just been joining Detective Superintendent Cundy in calling for an ever bigger NDNAD. Worryingly he's setting his personal sights on children as young as five when currently under 10-year-old are out of the reach of the NDNAD:
'If we have a primary means of identifying people before they offend, then in the long-term the benefits of targeting younger people are extremely large,' said Pugh. 'You could argue the younger the better. Criminologists say some people will grow out of crime; others won't. We have to find who are possibly going to be the biggest threat to society.'
Thanks to Stephen Cragg for the title of this post and to Kevin Reynolds for his assistance regarding his story.
First published on 2008-03-16; last updated on 2011-01-01.
Yet another Counter-Terrorism Bill is currently before Parliament. It will impose new and worse forms of punishment without trial. Since the first permanent Terrorism Act of 2000, people have suffered much injustice under anti-terrorism measures, particularly Muslims and migrant communities. Out of over 1,200 people arrested under anti-terrorism laws, less than 5% have been convicted of ‘terrorism’ offences, few of these involving any plans for violent activities. Less than 20% were even charged with such offences. A key effect and political aim has been a climate of fear – fear that political activity, or simply talking to the wrong people, will bring arrest or house raids.
Why does the government propose yet another Counter-Terrorism law? What effects will it have? What can people do to oppose it?
This Friday 2008-03-14, 6.30pm-9.00pm at the London Muslim Centre, 46 Whitechapel Road, London E1 1JQ, speakers will look at unjust effects of the current anti-terrorism measures and how this injustice would be extended by the new proposals. They will explain and analyse the proposals in the new Bill. There will be plenty of time for questions and discussion – about what powers to oppose, how to present the issues to your own community, and what action to request from your MP.
Event organised by the Campaign against criminalising communities (CAMPACC) with the Centre for the study of terrorism (CFSOT), and co-sponsored by the London Muslim Centre, Islamic Forum of Europe, Cage Prisoners and the Newham Monitoring Project.
The government’s new proposals are based on the Terrorism Act 2000, which defined terrorism so broadly as to include simply the threat of violence to property in an attempt to influence a government, anywhere in the world. This broad definition, with offences like belonging to or helping a banned organisation, criminalises many normal political activities in the UK and any resistance to oppressive regimes abroad.
For more information on the bill and a model letter to send your MP visit the CAMPACC Briefing Document Counter Terrorism Bill 2008. Please ask your MP to oppose these proposals!
Information in this post is from the announcement for this event.
In March last year, the Met launched a counter-terrorism ad campaign. I wrote about it exactly a year this week: Not enough innocents arrested, let's do an ad campaign. These were some of the posters from last year's campaign:
A year later, a new campaign is launched at the tail end of February, and friends sent me links (thank you) to Thomas Hawk's blog post and Flicker thread titled London's Metropolitan Police Launches Anti Photography Propaganda Campaign, as well as doctored images by email. What's changed? Not much. The Police are still asking untrained people to ‘look out for the unusual’. Most foreigners have different customs, hence have ‘some activity or behaviour [...] not quite right and out of place in their normal day to day lives.’ Either you conform or you should be reported.
Here are some of this year's posters:
This year, the poster are simpler and more focused, and phones and cameras get the limelight. As more and more phones are camera-phones, soon one poster will suffice. When I was arrested I somehow had only one phone on me, but when they searched my flat the Police could admire my phone collection: several bowls and drawers full of phones. People working in the mobile phone industry routinely carry several and collect many phones. Photographers do the same with cameras and are harassed.
Going after the techies (and keeping their DNA) will not make us any safer.
Tomorrow, on 2008-02-27, the Europen Court of Human Rights will be holding a Grand Chamber hearing in the case of S. and Michael Marper v. the United Kingdom.
Wednesday 27 February 2008: 9 a.m.
Grand Chamber
S. and Michael Marper v. the United Kingdom (nos. 30562/04 and 30566/04)
The applicants S. and Michael Marper, were born in 1989 and 1963. They are both British nationals who live in Sheffield, United Kingdom.
The case concerns the decision to continue storing fingerprints and DNA samples taken from the applicants after unsuccessful criminal proceedings against them were closed.
On 19 January 2001 S. was arrested and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted on 14 June 2001. Mr Marper was arrested on 13 March 2001, charged with harassing his partner. His fingerprints and DNA samples were also taken. The charges were dropped following reconciliation with his partner and the case against him was discontinued, also on 14 June 2001.
Both applicants unsuccessfully requested that their fingerprints and DNA samples be destroyed.
The applicants both complain about the retention of their fingerprints and DNA samples and the fact that they are being used in ongoing criminal investigations. They are also concerned about the possible future uses of those samples and, in general, that their retention casts suspicion on people who have been acquitted or discharged of crimes. They further contend that, as people without convictions who are no longer suspected criminals, they should be treated in the same way as the rest of the unconvicted population of the United Kingdom. They rely on Articles 8 (right to respect for private life) and 14 (prohibition of discrimination) of the Convention.
The Chamber to which the case was assigned decided to relinquish jurisdiction to the Grand Chamber on 10 July 2007.
The Home Office consultation on Managing Protest around Parliament closes on 2008-01-17. Have you sent your response in yet?
Peaceful demonstrations happened on Saturday. Here's what Rikki wrote at Indymedia about the London event:
in an afternoon of filming, at no time did i see a single act of violence towards the police from the peaceful protestors, and yet police used completely disproportionate and aggressive tactics to disperse and control peaceful sit-downs and blockades. i saw a 61 year old woman being dragged without any heed for 'health and safety' and dumped on the pavement. another elderly man was thrown over his bicycle (despite having recently had an accident leaving him in considerable pain)
there were several other arrests this afternoon, mainly for obstruction and public order offences. one person was arrested for 'organising an unauthorised protest'
See also Parliament Protest. And, don't delay sending in your response any further.
(In unrelated news, the planned demonstration by the Police Federation of England and Wales to go through Westminster on 2008-01-23 looks like it may be banned by the Metropolitan Police.)
Several readers of How to delete your DNA profile (El Reg) have queried what happens to the backups of the National DNA (and IDENT1) database. Here's Wayne Sheddan:
Do you know how the fingerprint and DNA records are removed from the backup tapes? These still contain the records from when they are first entered until they are removed? It's one thing to delete the records from the online database, it's another thing altogether to eliminate them completely from all data repositories...
Knowing most organizations it's likely the records are even online in the test systems - since these are often just a restore from production at some point in time, and are often 'refreshed' using production backup tapes...
Deleted - but not gone...
If only for cost reason it is unlikely for any backup tape to be expunged of ‘deleted’ data. Depending on the backup rotation scheme and the number of tapes used, the backed up data may have a finite lifetime and tapes degrade as they age and are eventually destroyed. Hence, it is likely that data such as fingerprints, DNA profiles and Police National Computer (PNC) records when ‘electronically deleted’ remain on backup tapes for possibly several more years. Deleted - but not (entirely) gone...
Another reader even suggested the possibility for the Police to keep a database of deleted DNA profiles. This is the standard operating procedure! ‘The Retention Guidelines are based on a format of restricting access to PNC data, rather than the deletion of that data.’ The step-down model effectively makes the data appear deleted to all but the Police and for Enhanced Checks. However, it is most unlikely the Police would maintain such a database of ‘electronically deleted’ records for ‘exceptional cases’ (as defined in these same Police guidelines) as it would be in complete contradiction to the statements they issue to each individual for whom they delete the DNA profile. Of course, if this procedure was to be changed in the future, all the records marked as stepped-down could be stepped back up.
Wayne Sheddan adds:
I just hope the legislation is such that records that have been deleted are subsequently inadmissible in court. I can just imagine the scenario where a restore is required, but the subsequent transaction roll-forward that contains the 'delete' commands fails - leaving the records in place again.... the legal status of the records must thus be the primary protection for the
citizenry[residents].
Current legislation authorises the Police in England and Wales to keep the DNA profiles they collect – of innocents and convicted alike – forever. So if such records were used in court, even after the Police promised they had been deleted, they likely would be admissible as long as they were collected and retained legally. You could of course complain and/or go to trial about the fact that the Police lied to you but I'd expect that to be a separate matter entirely. (Reminder: I am not a lawyer and this is just my interpretation.)
This is yet another reason that makes the ‘exceptional case process map’, the SCD12 Senior Information Manager promised me will be published early this year so important. When describing all the steps taken when deleting electronic records (and destroying samples), the document will, hopefully, make it clear as well what happens to the backups of deleted data. Publishing this process will also mean that innocents getting their DNA profile deleted will be treated fairly as the process will be documented and the same for everyone in that situation.
P.S. Earlier this week, Professor Sir Alec Jeffreys, the geneticist who first found a way to identify people through their DNA two decades ago, told the BBC that ‘recent developments such as the retention of innocent people's DNA raises significant ethical and social issues.’
Last year I wondered: ‘Hopefully there are processes to ensure that no database record or bio-information sample is missed in the destruction and deletion procedure.’ Then I learnt that no such processes yet exist. El Reg published earlier today my article ‘How to delete your DNA profile’ that reveals that a process map is coming:
How to delete your DNA profile - A cut-out-and-keep reference guide
It's a little known fact that it's possible to have your DNA profile removed from the National DNA Database (NDNAD). While the Police have processes to gather and retain DNA samples - they don't yet have a procedure to delete the DNA of innocent members of the public.
It's complicated - but for now, this is what you should do.
Over four million profiles have been added to NDNAD since 1995. Last year, 115 profiles were deleted and 667,737 added. In the last five years, 634 DNA profiles have been removed from the database, while 2,649,937 profiles were added. In other words, the number of DNA profiles removed is around 0.02 per cent of the number of profiles added in the period - where we have the information.
According to a document called the Step model - Retention guidelines, it is considered "exceptional" for an innocent citizen to have one's DNA sample destroyed, and the associated DNA profile removed.
Currently, the destruction of DNA samples and removal of DNA records are "completed by way of an approved form being sent [by a Senior Information Manager from the Metropolitan Police Service Specialist Crime Directorate 12 (MPS SCD 12)] to designated staff in each of the departments concerned who are aware of the exceptional case procedure, once deletion / destruction has taken place we are informed and subsequently we notify the applicant, there is no process map in existence for this practice."
My own fingerprints and DNA were added to the database on 2005-07-28 when I was arrested on the London Tube.
Then ensued a complaint to the Independent Police Complaints Commission (IPCC), an investigation, an appeal to the outcome and a final decision by the IPCC. The final decision, dated 2007-05-03, "requested that the Metropolitan Police Service reconsider your request for your records and samples to be physically destroyed and electronically deleted, and for the summary information in the Police National Computer to be expunged."
The Misconduct Office informed me, on 21 August last year, that they had agreed to this request. Department SCD12 confirmed that my fingerprints were destroyed and the entry on the fingerprint database was deleted on 2007-07-24, my DNA samples destroyed and the entry on the DNA database deleted on 2007-08-20 and my Police National Computer (PNC) record deleted on 2007-08-30.
If you read the previous paragraph carefully, you may notice that the Misconduct Office requested the exceptional case to be dealt with by SCD12 before informing me of its decision, and SCD12 appears to have been prompt. So it was no longer possible for me to witness the destruction and removal actions. Hopefully there was no break in communications, and all those involved did their job properly without making any mistake. The information I received, unfortunately, leaves room for interpretation.
For instance, there was mention of "DNA sample" (singular) when two mouth swabs were taken - most likely a shortcut. Another example is that SCD12 asks "departments", but the labs that are contracted to analyse the DNA samples and keeping them are not part of the Police and hence not departments, most likely another shortcut.
So how would I know that my DNA profile really had been deleted? One way to verify this would be to plant some of my DNA at a crime scene and wait for a knock at the door. Obviously this is an experiment I will not undertake. I'd much prefer to have (verifiable) specific assurances rather than assumptions, but instead I'll have to trust the Police and the labs they use.
To avoid others having to go through this same situation, I shared these concerns with the SCD12 Senior Information Manager. The outcome: "An exceptional case process map will be available on the MPS Publication Scheme early 2008."
Having a documented process in place instead of the current ad-hoc mechanisms will go some way to increase confidence in the efficacy of what must be a complex procedure. Unsurprisingly, the Information Commissioner's Office has also been keen for a long time for the Police to implement such a step-out (deletion) procedure.
Publishing a process - which describes in detail the actions to be taken by the Police departments and their contractors - will help ensure other innocents get fair and open treatment in getting off the NDNAD. This, in turn, will help make exceptional cases the norm.
Read and comment on this article at El Reg...
The BBC story about Samina Malik explains:
The jury found her not guilty of possessing articles for terrorist purposes. [ Section 57 of the Terrorism Act 2000]
But they did convict of the lesser terror charge of collecting articles "likely to be useful to a person committing or preparing an act of terrorism". [ Section 58 of the Terrorism Act 2000]
This gives Malik the dubious honour of being the first woman ever convicted for offences related to Islamist terrorism in the UK.
Samina Malik is the 23-year old English woman who wrote bad poetry under the pseudonym of the ‘Lyrical Terrorist’ among others. This case is ‘profoundly disturbing’; this is the expression used by Gareth Peirce about the same Section 58 under which Malik was convicted.
This unease is shared by Rachel North who has been researching muslim radicalisation for the past two and half years:
There are many things about this case which disturb me (besides the appalling comparison of Owen's devastating poetry with Samina's ghastly scrawls). I think there are a great many Saminas in this country. In suburban bedrooms all over the UK, young men and women of all ages and religions and colours and shapes and sizes are writing bad poetry, listening to horrible lyrics, wearing black clothes, keeping diaries about how they hate the world and nobody understands, slamming the door and not coming down to eat their tea on time.
Things were ever thus.[...]
Samina did not own any bombs, or guns, or quantities of fertiliser or peroxide, or detonators. She owned literature, and she wrote obnoxious lyrics and she seems to me to be as star-struck as the young girls and boys who wish they were ''with the band'', and who write letters and poetry expressing their admiration for the gangster rap thug, the death-metal anti-hero, the groupie-slapping rock star. If you can't drink, or smoke, or get a tattoo, or stay out late at gigs and hang about in trashy bars, then how do you express your rebellion? Samina wore a hijab, when her mother didn't. Samina wrote truly awful poetry. Samina, the shop girl, bored in WH Smiths beeping endless stuff through the tills to the endless airport crowds, then back home in her suburban bedroom, hoped to meet radical boys who thought she was ''cool''. Samina is the first woman to be convicted under the Terrorism Act.
Gareth Peirce pointed out that ‘we now see a new and disturbing phenomenon whereby more than one innocent defendant [is] unable to comprehend the accusation levelled’. It is not only defendants who find it difficult to comprehend that such possession is inconsistent with the right to freedom of thought. Here are Kathz' thoughts:
As children, my brother and I practised stealing handkerchiefs from one another's pockets. We were inspired by Fagin's gang in Oliver Twist. We became rather skilful - but never practised our skills on anyone else. We wrote stories - some in first person - imagining all kinds of extreme scenarios. My brother, aged 6, wrote a letter to a friend which suggested dynamiting the school he attended. (The head was quite worried by this but our mum was, rightly, amused. She knew the difference between play and act.) In my head I explored violent scenarios and I turned some of them into poems. I knew they weren't real. They will never be real.
In my poems, I still explore different characters and different points of view. In my novel (the one I will probably never finish) I explore a range of themes, including violence and murder. It's not real.
It's not real.
I haven't read full accounts of Samina Malik's trial. But so far as I can see, she has done no more than I would in exploring a character or point of view - or in following ideas on the web with curiosity. She has read books. She has visited websites. She has written poems. And she adopted a range of tags, including "Lyrical Terrorist."
I don't think real terrorists advertise their intentions in this way.
But Samina Malik has been told she faces a jail sentence. The charge was collecting articles "likely to be useful to a person committing or preparing an act of terrorism." I have articles like that. I have an Oyster card and a London tube map. I have an encycopedia which probably has more useful advice than the dangerous literature she is said to have collected.
One item of dangerous litterature found in the possession of Malik was the Mujahideen Poisons Handbook. Dick Destiny was asked by the defense to contribute a short analysis concerning this book:
It contains many errors and some rather large fabrications which, while not obvious to laymen, are glaringly apparent to professionals trained in chemistry and biology.
DD has combed over it many times in the past year, tracing its origins and showing that it is fundamentally just an abridged and Bowdlerized copy of a pamphlet that had been published in the US in 1988, Maxwell Hutchkinson's The Poisoner's Handbook (Loompanics).
[...]
Malik was convicted for possessing records deemed to be of potential use to terrorists, including the document pictured above. It has been published many places on the web and the above snapshot was published in a Sunday edition of the Washington Post newspaper in 2005.
Human rights lawyer Gareth Peirce wrote a comment piece in the Guardian about her client Cerie Bullivant and the injustices faced by those charged with control order breaches. The context is is the verdict in the case of Cerie Bullivant where a clear-sighted jury concluded ‘that his every breach, including absconding, was reasonable in the face of the crushing effects of a secret accusation by the state’:
[...] Worryingly, within the "ordinary" criminal process, many defendants now face charges of such vagueness and uncertainty that, even after a trial, in many cases after conviction, they still have no understanding of why what they have done has been ruled criminal.
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.
To be blunt, as most of such prosecutions to have gone through the courts have succeeded, there is now the bleak prospect of imprisonment for thousands of young people, all Muslim, who have similarly accessed the internet prompted by an interest - shared with millions of their contemporaries around the world, Muslim and non-Muslim - in the workings of political or radical Islam. Additionally, possession of the Channel 4 film Road to Guantánamo, or 21st-century Crusaders, a compilation of documentaries from the BBC and elsewhere, is currently being held to demonstrate "radicalisation", a condemnation as conveniently imprecise as the label "subversive" used in the postwar McCarthyite witch-hunts in America.
In the face of a succession of questionable convictions, we now see a new and disturbing phenomenon whereby more than one innocent defendant, unable to comprehend the accusation levelled, yet terrified at the prospect of inevitable conviction, insists on pleading guilty in an attempt to avoid sentences that become ever more severe.
Such increasing contamination of the legal process, capitulating to an insatiable executive appetite for secret hearings when the spectre of national security is invoked, brings about a distortion of what should be the central purpose of the criminal process: achieving justice through predictable certainty and clarity. This week's returnees from Guantánamo faced secret hearings no more unjust than ours. [...]
I recommend you read the article in full. The sentence in bold is my emphasis. I first heard Gareth Peirce in 2006 at an event organised by the Institute of Race Relations (Gareth's keynote is available in MP3). After reading some of her articles and stories about her, I was expecting a strong person with a powerful voice. She is short and speaks with a small voice. However, in the few occasions I was lucky to see her, when she speaks the room goes quiet. Her actions and intensity mean she commands respect.
Other recent news:
On 2007-01-16, the European Convention on Human Rights (ECHR) declared a challenge in ‘S’ and MARPER -v- THE UNITED KINGDOM, which may determine whether fingerprints and DNA samples taken from people who have been acquitted of crimes can be kept by the police, to be admissible and invited the parties to submit additional observations.
Below is the conclusion from the Response to questions posed by the Court upon the issue of its decision on admissibility and further submissions (31 pages). It states that the Court declares a violation of Article 8 (Right to respect for private and family life) and Article 14 (Prohibition of discrimination) of the Convention. It is dated 2007-03-15 and has just been republished by Statewatch.
A decision is expected in February 2008.
Conclusion
100. Both the retention and use of the fingerprints, DNA profiles and DNA samples of innocent persons, which PACE now allows, is a significant interference with the rights of such individuals under Article 8(1) of the European Convention on Human Rights. The information gathered and retained is far more intimate and intrusive than was recognised by the domestic courts; the creation of a record on the PNC, and resulting access to that record by a wide range of public authorities for a wide range of purposes, was not understood in the domestic courts; and the domestic courts failed to appreciate the distinction between DNA samples and DNA profiles.
101. Retention of such information is a fresh invasion of Art. 8 ECHR interests and must be subjected to fresh Art. 8(2) analysis. The Canadian approach to s. 8 of the Charter (the protective mantle only applies while the original justification for the taking of the material is still active) and the German Constitutional Court approach, applying proportionality analysis to each separate privacy invasion, are to be preferred over the approach of the domestic courts in S and Marper.
102. The interference in this case is not justified under Article 8(2) of the Convention because it is disproportionate to the legitimate aims being pursued. R (92) 1 and its explanatory memorandum (as analysed above) support this submission.
103. In addition, even if the Court accepts the government's claim that there are legitimate reasons for retention, the state must also justify rejecting the available 'less restrictive means' of achieving that objective, in particular the more privacy-friendly systems proposed by the Information Commissioner's Office (see exhibit).
104. In assessing whether the UK's approach is within its 'margin of appreciation' regard should be had to the fact that the UK's approach to both DNA databases and fingerprint databases is far more intrusive than that of any other Council of Europe or common law country worldwide. The UK is severely out of kilter with the approach in other democratic systems. Within Europe, the NDNAD of England and Wales is 800% larger than its closest rival in size, Germany's national database.
105. Not only does no other country in the world have a database on the scale of NDNAD or NAFIS, neither does any other country in the world treat its innocent citizens who have previously been incorrectly suspected of involvement in an offence en masse in the same manner as its convicted criminals. Further, the NDNAD and NAFIS have fewer safeguards than other large systems, and the NDNAD does not have an independent custodian monitoring its use and access to the sensitive information it contains.
106. At the very least, the keeping of DNA samples is unjustified. As they are not currently used for forensic purposes no legitimate purpose is pursued by their retention. Other countries with forensic DNA identification systems either destroy the sample immediately once the profile has been generated (New Zealand, Germany, Sweden, Denmark, the Netherlands) or permit the destruction of the sample at an earlier stage than the destruction of the profile or fingerprint (Australia). No other system worldwide retains DNA samples indefinitely. These systems recognise that the information contained in a DNA sample differs markedly from that contained in a DNA profile or fingerprint.
107. The blanket, permanent retention and open-ended use of personal information through the NDNAD, NAFIS and PNC under the PACE regime is unacceptable, and places the applicants at a permanent disadvantage when compared to those who have never been arrested (not on the relevant databases) and the police themselves (on an alternative database for a limited period of time, and with strong safeguards). It equalises the applicants with convicted criminals and, despite official assurances to the contrary, continues to mark them with the taint of criminality.
108. For the reasons set out above, it is submitted that this application should be allowed and the Court should declare a violation of Article 8 and Article 14 of the Convention.
See also the witness statement of Dr Caoilfhionn Anna Gallagher (97 pages), Council of Europe expert on Articles 8 (Right to respect for private and family life), 10 (Freedom of expression) and 11 (Freedom of assembly and association) of the European Convention on Human Rights (ECHR) and co-author of Blackstone’s Guide to the Human Rights Act 1998.
If you haven't already done so, write to your MP to ask him/her
to oppose attempts by this government to increase further the
pre-charge detention from its current 28 days period.
CAMPACC has published a model letter to help you ask your MP to give an undertaking not to vote for the renewal or extension of any ‘anti-terror’ powers (such as the extension of the detention without charge from 28 days to 56 days or possibly even 90 days, post-charge questioning of ‘terror suspects’, the creation of a new criminal offence of seeking ‘information which could be useful for terrorism’, travel restrictions for ‘suspects’, and the collective punishment of families of convicted terrorists). This effort is part of a national campaign bringing together many diverse organisations to oppose current anti-terror laws as well as their extension:
The government is planning yet more ‘anti-terrorism’ measures, which will go to Parliament in a new bill in October. This ‘anti-terror’ bill reinforces a trend beginning with the Terrorism Act 2000, whose broad definition of terrorism criminalised normal political activities, potentially on the basis of suspected ‘association’. This law was followed by three more in 2001, 2005, 2006; these multiplied extra police powers (e.g. arbitrary stop-and-search), punishment without trial and treatment of ‘suspects’ as guilty, thus bypassing due process. Together these laws have normalised detention without trial under various guises, such as control orders and immigration rules, whereby the accused never see the evidence against them.
Below is the email I sent to my MP on 2007-09-13 and her reply (in italics) sent on 2007-10-26:
When we met at Portcullis House early December 2005, we discussed the compromises you find are necessary as part of our political system. One specific example we discussed was your support of the compromise to extend pre-charge detention of suspects from 14 up to 28 days hence successfully defeating the 90 days amendment.
You may remember that I found this difficult to understand as these are not abstract compromises, they deeply affect the lives of individuals who have not been charged, and hence by definition are innocent. Gareth Peirce and Louise Christian both wrote at the time about how even 14 days or less in Paddington Green affect the mental health of detainees.
Gordon Brown has stated that he intends to propose a further extension to the current 28 days pre-charge detention period, and the police, via the ACPO, has even suggested they are keen for indefinite detention.
28 days is already the longest period of pre-charge detention of any western country. The case has not been made to even justify keeping this period as long as 28 days nor for extending it further. Extending this period will further erode our civil liberties and increase the likelihood of innocent persons to be detained without charge for over a month.
I urge you to publicly reject calls for extension of the pre-charge detention and vote against any such proposal that may be included in forthcoming Bills.
As we discussed at the time, I feel the 28 day limit to the detention period prior to charging to be a necessary compromise. I was very vocal about this issue at the time, sponsoring an amendment to limit the period of detention to 28 days rather than 90 days. I can, furthermore, assure you that I feel no need to extend the period at this point in time.
I also call to your attention a different issue: the de Menezes family is currently represented in the UK by four of Jean's cousins and one of his friend. The procedures around Jean's killing are delayed. The inquest will not start until after the health and safety procedure, for instance. Justice4Jean has indicated that the Home Office may not renew the visas of these five individuals. Ensuring they are welcome in the UK for at least the full duration of all the procedures surrounding Jean's killing is a very small gesture that must be done towards this grieving family.
I would be grateful for you to make representation to the Home Office so that Jean's four cousins and one friend's visas are extended and they can represent his family in all these legal proceedings.
I was concerned to hear about the issue surrounding the visas of those representing Charles de Menezes in the UK but will write to the Home office to enquire about this situation. I will be back in touch when I receive a reply.
Stockwell One – the report of the investigation into the shooting of Jean Charles de Menezes by the Indpendent Police Complaints Commission (IPCC) – has eventually been published.
The report was introduced by a statement from NicK Hardwick, IPCC chair.
[...] There are two very stark images from the now infamous CCTV coverage of Stockwell Station.
The first is of Jean Charles de Menezes entering the station, wearing light summer clothing, picking up a paper and going to get his train.
The second, just over a minute later, shows police officers running down into the depths of the station, into what I am sure they believed was deadly peril, the first passengers, alarmed by the arrival of police officers, were hurrying to escape in the other direction.
Neither Mr de Menezes nor the police officers are diminished by us remembering the tragedy of one and the heroism of others on that day.
Let me be clear what the trial was not about. It was not about the split second decisions that the firearms officers had to make when they confronted Jean Charles de Menezes in that tube train - nor indeed just about the death of Jean Charles de Menezes himself, terrible though that was.
The questions the trial did address and indeed the ones the public were asking in the aftermath of the incident were these:
'If they thought he might have a bomb, why was he allowed twice to get on a bus and then on the tube?' 'If they thought he didn't have a bomb, why did they shoot him?'
Nor must there be any attempt to blame Jean Charles de Menezes himself for his fate.
He did nothing out of the ordinary.
He looked over his shoulder as he walked to catch his bus; he got back on his bus when he found Brixton tube station was closed; he texted his friend; he hurried down the final few steps of the escalator when he saw a train was already on the platform; and, like other passengers, he got to his feet when police officers burst onto the train. These actions may have been misinterpreted by police officers hunting a suicide bomber but they were entirely innocent.
The priority for the police service now, and those responsible for the police, is to do everything possible to ensure the mistakes made on 22 July 2005 are not repeated. [...]
The report Stockwell One – Investigation into the shooting of Jean Charles de Menezes at Stockwell underground station on 22 July 2005 is in three parts:
- The main investigation report that was completed and submitted within six months by 19 January 2006.
- The operational recommendations arising from the incident that were completed and submitted by 14 March 2006.
- A short addendum to the main report that sets out the results of further enquiries requested by the Crown Prosecution Service (CPS) which was submitted in June 2006.
Some related posts:
The Ministry of Justice has just published the Statistics on Race and the Criminal Justice System 2006 for the financial year 2005-2006. In addition to giving ‘statistical information on the representation of [Black and Minority Ethnic] BME groups as suspects, offenders and victims within the CJS’, this report always includes detailed data on stop and searches conducted that year.
This report is no longer published by the Home Office on a page dedicated to the Criminal Justice Act 1991 Section 95, it can now be found on the CJS website and seems to be linked only from the What's New page. It is still being published very late.
Excerpt from Main Findings - Terrorism Act 2000: Tables 4.6-4.8 (p.26):
The number of stop and searches of pedestrians under section 44(2) [for which no reasonable grounds for suspicion is needed] nearly doubled between 2004/5 and 2005/6 with 19,064 stop and searches recorded in 2005/6. This increase was accounted for by the increase in use of the power in London. Use of the power in areas outside of London decreased by 19% between 2004/5 and 2005/6. In 2005/6, 61% of people stopped under section 44(2) were White compared to 74% in 2004/5 and 72% in 2003/4. The proportions for Black and Asian people fell to 11% and 21% respectively in 2005/6. In 2005/6, 59 arrests in connection with terrorism resulted from section 44(2) searches compared to 24 in the previous year and 5 in 2003/4. Arrests under non-terrorist legislation rose from 153 in 2004/5 to 212 in 2005/6.
Excerpt from Table 4.8: ‘Stop and searches’ of pedestrians under s 44(2) of the Terrorism Act 2000 and resultant arrests by ethnicity, selected areas, 2005/6 (p. 36):
Searches Arrests in connection with terrorism Arrests for other reasons City of London 3,149 n/a 23 Metropolitan Police 11,407 49 148 Other areas 4,508 10 41 England & Wales 19,064 59 212
Comparing this data, for the Metropolitan Police, to that of previous years (more analysis in A pawn in their propaganda machine), you'll notice that the number of searches under Section 44(2) of the Terrorism Act 2000 more than doubled in 2005/6 compared to the previous year, but the number of arrests in connection with terrorism at 49 remains less that half a percent. And of these 49, only a few will be charged and even less convicted. (The coloured table cells show how my arrest must have been counted in these stats.)
| 2003/4 | 2004/5 | 2005/6 | |
| S44(2) searches (Metropolitan Police) | 5,245 | 4,206 | 11,407 |
| Arrests in connection with terrorism | 2 (0.04%) | 15 (0.36%) | 49 (0.43%) |
| Arrests for other reasons | 57 (1.09%) | 51 (1.21%) | 148 (1.30%) |
This data confirms the abuse of Section 44 stop and search. As recently as last May, the Metropolitan Police Service reiterated how keen they are to keep (over)using these powers.
- Police did not stop and question everyone leaving Mr de Menezes’s apartment block, despite orders to do so;
- Armed officers did not arrive at the apartment block in time to halt the Brazilian, despite the surveillance operation beginning four hours previously;
- Without the armed officers, there was no plan for how to deal with a suspect suicide bomber leaving the building. This uncertainty helped create the confusion about Mr de Menezes’ status that ultimately led his death;
- There was no plan for absence of certainty about identity;
- When one of the surveillance officers tried to clarify what they should do if forced to “contain” the suspect, “all he got was a shrug of the shoulders”,
- Senior officers believing that Mr de Menezes had been identified as a terrorist despite the fact that no surveillance officer had stated that to be the case;
- Police failed in their duty of care by letting a suspected suicide bomber board a packed bus (twice) and then a busy Tube train;
- The New Scotland Yard operations room was too noisy and chaotic for officers to accurately assess the information coming from surveillance officers outside Mr de Menezes’ block, to the extent that people couldn’t make themselves heard;
- Non-essential staff contributed to the noise and chaos by not leaving the room despite repeated requests to do so;
- Surveillance officers who identified Mr de Menezes to armed officers on the Tube train were unaware of orders that he should be “stopped”, ie killed, before he could board the train;
- Commander Cressida Dick, Gold Commander at Scotland Yard, issued a series of contradictory orders to the surveillance team following Mr de Menezes;
- Somehow the firearms team made a leap from being in pursuit of one terrorist suspect to a whole cell, which resulted in one officer pointing a gun at ‘Ivor’, a surveillance officer, and another firearms officer chasing the tube driver into the tube tunnel.
In a statement released by Downing Street today, Mr Brown said the protestors have been exercising "great bravery" by protesting peacefully.
"I had hoped that the Burmese regime would heed the calls for restraint from the international community.
"But once again they have responded with oppression and force. This must cease."
The democratic movement in Burma were praised for their "courage, moderation and dignity".
Thousands of anti-war protestors are expected to march down Whitehall on Monday, 8 October, in defiance of a police ban. The police decision is an unprecedented attack on civil liberties.I wish I could join this demonstration.
LIBERTY have stated that this decision "interferes with the vital democratic rights of free expression and free assembly."
The Stop the War Coalition have sent a final appeal to the police to reverse their decision and have requested guarantees regarding the safety and security of all those who attend the demonstration. Among the marchers will be: Tony Benn, Walter Wolfgang, Brian Eno, Mark Thomas, Jenny Jones, Lindsey German, Ben Griffin and John McDonnell MP. (Statements of support included below)
TO:
Inspector Stuart Cornish
New Scotland Yard
05 October 2007
Dear Stuart,
Following the decision of the Metropolitan Police to agree to the banning of our long planned demonstration on October 8th we write to make our position as clear as possible and to ask for guarantees regarding the safety and security of those attending the event on the 8th October.
1] We met with you on four separate occasions to discuss the planning of the demonstration on the 8th October. In the first three meetings there was never any question of not being allowed to demonstrate. Only in the very last meeting did you say that you could no longer facilitate the demonstration.
2] The grounds on which you have made this decision is spurious. The sessional order, as you have admitted, is subject to different interpretation at different times but it should never be used to suppress the right to legitimate and peaceful protest.
The civil liberties organisation Liberty has written to Assistant Commissioner Chris Allison that, “this proposed restriction on peaceful protest is a disproportionate interference with the vital democratic rights of free expression and free assembly”.
3] Since 2001 we have arranged with the cooperation of your department 20 demonstrations. These have included the largest demonstration in British political history on February 15th 2003 and also the demonstration to protest at the visit of US president George Bush on November 20th 2003. On the latter nearly 400,000 people marched through Whitehall by the House of Commons on a weekday while parliament was sitting. There was no attempt to prevent this march using the sessional order. All our demonstrations have been peaceful.
4] On the 8th of October we intend to march to parliament. There will be a large number of elderly people and families with children attending our event. We strongly request that the Metropolitan Police do not endanger the safety of those attending, either by the use of riot police or through the use of mounted police. Our stewards will be working to facilitate a peaceful protest and we ask for that same cooperation from your officers.
5] We have no intention of disrupting parliament or preventing MPs from attending parliament. In fact the opposite is the case - our protest seeks to make parliament act in the interests of the vast majority of the people of this country who want British troops withdrawn from Iraq.
6] It is a matter of great concern to us that our previous good relations in regard to the planning of legitimate public protest have broken down. You will have received advice that your decision to ban our protest is of dubious legality and we ask you one more time to review your decision in respect of our march.
Andrew Burgin
Lindsey German
Chris Nineham
Stop the War Coalition
**********************************************
TONY BENN, in his letter to the Home Secretary
The authority for this march derives from our ancient right to free speech and assembly enshrined in our history. It is only fair to tell you that the march will go ahead, in any case, and I will be among those marching.
WALTER WOLFGANG, Labour Party NEC
A protest demanding all the troops out now is of national significance. To try and stop that protest is a major interference with free speech. The march should go ahead whether it is formally permitted or not.
LINDSEY GERMAN, Convenor Stop the War Coalition
The government want to bury the issue of their disastrous war. They will not succeed. We will be marching in our thousands on Monday.
BOB WAREING MP
In a democracy we expect peaceful protest to be permitted. We are not yet in the kind of tyranny that the Burmese people have to suffer, I hope the authorities will reconsider.
BEN GRIFFIN (ex SAS trooper)
Gordon Brown cannot praise protesters in Burma and then ban a protest in London. I will be protesting on Monday, regardless of whether Police permission is granted.
MICHAEL KUSTOW, theatre director
If people aren't allowed to have their say on all our streets, what kind of Parliament are we meant to be defending?
BRIAN ENO, musician and producer
If they are planning an Iranian attack they will have a public even more upset and disgruntled than before. This is what this tightening up is about…Civil liberties never seem very important until you need them. At times like this we need to be re-enforcing them.
DAVID HOWARTH MP
This is an outrageous attempt by the Government to block the democratic right to protest. This is a legitimate and important protest against an illegal war which Britain should never have been involved in. The Government should be listening to the people's protests not attempting to block them.
MARK THOMAS, comedian
This is rather a ham-fisted attempt to prevent us from demonstrating. What they (the government and police) do is up to them. We will just ignore them and we have the moral and logical high-ground. I will be marching on Monday 8 October.
JOHN MCDONNELL MP
The attempt to ban this demonstration is an unacceptable assault on our civil liberties and I will be joining the march to exercise my right to protest at the continuing presence of British troops in Iraq.
IAIN BANKS, author
It's becoming remarkably hard to escape the feeling we're ruled by people who are basically paranoid authoritarian incompetents.
BENJAMIN ZEPHANIAH, poet
It is depressing that our democratic rights are being whittled away bit by bit. We will look back and wonder how this happened. They wouldn't get away with this in one go. First an arrest for reading names, then a ban on marches. What will be next?
DAVID EDGAR, playwright
The stop the war demonstration on 15 February 2003 was arguably the most politically influential march in Britain since the 1970s, so it's no surprise that politicians are immobilising anti-war demonstrations now. At a time when the political debate at Westminster occupies ever narrower ground, it's vital that voices from outside are heard.
GORDON BROWN, 2007 Labour Party conference
Change to strengthen our liberties to uphold the freedom of speech, freedom of information and the freedom to protest.
She was then dragged along the ground to the lift. In considerable pain she appealed to the police to take the handcuffs off. They declined. When her husband Chris Gwyntopher came up the stairs to find out what had happened to her she appealed to him to get the police to remove the handcuffs. He tried to persuade the officers to do so, pointing out that she would not harm anybody and would not seek to run away. They refused and pulled him away from her.On 2007-09-26, Bob Hamlen, 47, and Michael Burbidge, 31 were stopped and searched as they sat on a bench outside the Westcliff Tavern in West Cliff Road, Bournemouth. The pub patio overlooks the security checkpoint at the entrance to the Highcliff Marriott Hotel where Labour politicians are staying during this week's party conference. Bob was interviewed by the Bournemouth Echo (via UK Liberty):
She was charged with trespassing on DLR station and refusing to leave. She had her freedom pass on her and was ready to leave, in the direction of the Excel She was offered bail on the condition she did not go on the Docklands Light Railway until her court appearance. She refused to accept this condition. She was transferred to Forest Gate Police Station and held overnight to appear before Stratford Magistrates on Friday 14/9/07.
At about nearly midday Friday, the Magistrate heard her plea of not guilty. She was bailed to appear for trial on Monday November 5th at 9.30 am with a pre-trial review the afternoon of Thursday 4th October at the Magistrates Court, 389-397 High Street, Stratford E15. Supporters welcome The bail conditions were that she not go on DLR land or the Excel Centre until midday Saturday 15th September. She was not required to accept or sign to keep the conditions which would have prevented her communicating with the arms traders.
"I was carrying my disabled bus pass but it didn't make any difference. I needed to go to the toilet and an officer went with me in case I escaped. After radioing through the information, they asked us to accompany them, in separate police cars, to the police station.Act now. Refuse to be terrorised.
"It was very embarrassing because some of our friends were sitting nearby. Michael suffers from stress and was getting very agitated.
"They said the reason I was being taken to the police station was because I had been seen passing a white envelope.
"But all I did was take my post out of my jacket pocket and open an electricity bill.
"On Michael's stop and search form they said they wanted to speak to him, under the Terrorism Act, because he had been looking at a police officer.
For several years discussions and measures aiming for enhancing security and fighting terrorism claimed that it was a necessity to balance individual rights and security, implicating that the freedom of individuals opposes the needs of combating terrorism and law enforcement.The Economist this week published Learning to live with Big Brother, the second article in a series on surveillance and privacy (my emphasis):
A report submitted by Europol provides figures on terrorism in the EU. According to the “TE-SAT 2007, EU Terrorism and Trend Report 2007” a total of 498 attacks were carried out in 2006 in the EU, of which the vast majority were not intended to kill.
“There were no successful Islamist terrorist attacks in the EU in 2006. However, a coordinated but ultimately failed attack aimed at mass casualties took place in Germany. The vast majority of terrorist attacks were perpetrated by separatist terrorist groups targeting France and Spain. In France, 283 attacks took place in Corsica in 2006. In Spain, despite the truce declared by ETA in March 2006, separatist groups perpetrated 136 attacks, mainly in the Basque region. Only the attack at the Madrid airport on 30 December 2006 resulted in casualties.”
According to the report the remaining attacks were left- or right-wing-motivated or driven by other/not given motivation.
The number of arrested suspects differs from these figures. A total of 706 individuals suspected of terrorism offences were arrested, of which 257 arrested individuals were suspected of Islamist, 226 of separatist, 52 of left wing and 15 of right wing terror. With regard to the approximately 260 arrests related to Islamist terror “[l]ess than ten percent of the arrested individuals were suspected of preparation, planning or execution of terrorist attacks. [...] The vast majority of the arrested individuals were suspected of being members of a terrorist organisation. Other frequent criminal activities were financing of terrorism and facilitation.”
The figures of the Europol report make clear that terrorism in the EU is mainly driven by separatists in France and Spain and focussing on Corsica and the Basque region. Of the relatively large number of arrests related to Islamic terror only less than 26 individuals were suspected of preparation, planning or execution of terrorist attacks. On the other hand we had and still have to face a series of measures, limiting the freedom of individuals and infringing with human rights, arguing this to be necessary to fight terrorism.
Britain used to pride itself on respecting privacy more than most other democracies do. But there is not much objection among Britons as “talking” surveillance cameras, fitted with loudspeakers, are installed, enabling human monitors to shout rebukes at anyone spotted dropping litter, relieving themselves against a wall or engaging in other “anti-social” behaviour [...]
With an estimated 5m CCTV cameras in public places, nearly one for every ten inhabitants, England and Wales are among the most closely scrutinised countries in the world [...] Few seem to mind, despite research suggesting that CCTV does little to deter overall crime. [...]
Britain has long permitted the “warrantless” eavesdropping of its citizens (only the home secretary's authorisation is required), and few people appear to mind [...]
Ross Anderson, a professor at Cambridge University in Britain, has compared the present situation to a “boiled frog”—which fails to jump out of the saucepan as the water gradually heats. If liberty is eroded slowly, people will get used to it. He added a caveat: it was possible the invasion of privacy would reach a critical mass and prompt a revolt.
If there is not much sign of that in Western democracies, this may be because most people rightly or wrongly trust their own authorities to fight the good fight against terrorism, and avoid abusing the data they possess. The prospect is much scarier in countries like Russia and China, which have embraced capitalist technology and the information revolution without entirely exorcising the ethos of an authoritarian state where dissent, however peaceful, is closely monitored.
On the face of things, the information age renders impossible an old-fashioned, file-collecting dictatorship, based on a state monopoly of communications. But imagine what sort of state may emerge as the best brains of a secret police force—a force whose house culture treats all dissent as dangerous—perfect the art of gathering and using information on massive computer banks, not yellowing paper.
Refuse the war against a noun and what is done in its name. Demand human rights. Refuse to be terrorised, and prevent the situation getting worse (block any further extension of the pre-charge detention period).
Murch: Well, there was a short film made a few years ago where the filmmaker had worked out the location of all the surveillance cameras along a cross-section of London, and how many of those cameras were operated by the municipal authorities. If the cameras were operated by the city, then he could get access to the footage. So he mapped out a pedestrian trip for himself across town knowing that, at every moment he would be on CCTV: as soon as he was out of range of one camera, he would come into focus on another. So he walked the walk, wrote to all the relevant authorities, got the footage, and then edited it all together into a continuous narrative. It’s very amusing in a dystopian, Warholian kind of way. You only “get” the joke after a few minutes of watching.As for the efficacy of cameras making us more secure, This is London just reminded us that ‘a comparison of the number of cameras in each London borough with the proportion of crimes solved there found that police are no more likely to catch offenders in areas with hundreds of cameras than in those with hardly any.’
But George Lucas’s THX-1138 was kind of like that, except it was made in 1971. Much of the action takes place on video surveillance cameras. In fact, the job of the girl in the film is to monitor banks of surveillance cameras. She eventually gets fed up, stops taking her Prozac, or whatever, and tries to escape this completely video-monitored world – which, it turns out, is completely underground because of some disaster that had happened on the surface many years earlier.
Vague spectres of menace caught on time-coded surveillance cameras justify an entire network of peeping vulture lenses. A web of indifferent watching devices, sweeping every street, every building, to eliminate the possibility of a past tense, the freedom to forget. There can be no highlights, no special moments: a discreet tyranny of “now” has been established. “Real time” in its most pedantic form.
Fingerprinting and DNA profiling are increasingly valuable tools in the detection and prosecution of offenders. However, the collection and storage of bioinformation by the police, and access to the resulting forensic databases, raise a number of ethical issues. This report considers whether current police powers to take and use bioinformation – powers that can affect the liberty and privacy of innocent people – are justified by the need to fight crime. The principle of proportionality is used as the basis for a number of recommendations to policy makers, summarised below.The full 168-page report and presentations from the launch event are available on the Council's website. My response to the consultation and some further background on DNA matters are linked from the Should the Police keep your DNA forever? blog post.
- The police should only be allowed to store permanently bioinformation from people who are convicted of a crime, with the exception of people charged with serious violent or sexual offences. This would bring the law in England and Wales in line with Scotland.
- Police powers should not be extended to allow police to take and store bioinformation without consent from people arrested for ‘non-recordable’ offences, which include littering and minor traffic offences, as is being currently proposed by the Home Office.
- The police should put more resources into the collection of DNA from crime scenes. At present, fewer than 20 percent of crime scenes are forensically examined.
- Volunteers, including victims and witnesses, should be able to have their DNA removed from the National DNA Database at any time without having to give a reason.
- There should be a presumption in favour of removing DNA taken from children from the National DNA Database, if requested, unless there is a good reason not to.
- Legal professionals and juries need to be given more help to understand the meaning of DNA evidence, as the accompanying statistics can be extremely difficult for non-scientists to understand.
- The National DNA Database should not be used for familial searching unless it is necessary and proportionate. This technique may reveal previously unknown family relationships.
- ‘Ethnic inferences’ for DNA should not be routinely sought by police. There are ethical and practical problems associated with this technique, and the information it provides has limited usefulness.
- An ethics and governance framework for the National DNA Database should be developed. An independent tribunal should also be established to oversee requests by individuals to have their DNA removed from the Database.
- There should be a statutory basis for the regulation of forensic databases. This should include oversight of research and other access requests. The current legislative framework is patchy and piecemeal.
- The establishment of a population-wide forensic DNA database cannot be justified at the current time. The potential benefits would not be great enough to justify the cost and intrusion to privacy.
THE SECURITY STATE IS HEIGHTENEDThis has been displayed on the LED sign in the entrance of the Crown Prosecution Service for several weeks. It can be seen from the pavement when walking on the Old Bailey (I will not take a picture). Not sure when they started having this message regularly flashing up. Is it related to the threat level, downgraded from critical to severe on 2007-07-04? Or is it another unrelated scale? Surely the CPS doesn't need its own security assessment distinct from that of the UK?
PLEASE BE ALERT
One proposal we cite in the consultation document from Liberty - and we are grateful to them for engaging so constructively in the debate - is that if the risk materialises we should declare an emergency under the Civil Contingencies Act and allow for a period beyond the 28 day limit, for up a further 30 days.Justice succinctly and effectively explained that the case for an 28 days (or longer) pre-charge detention as not yet been made and the risks that it entails:
But this would require the declaration of a state of emergency.
We are also proposing for consultation - and this would not require a state of emergency - an extension of the current limit for up to 28 days more or a lesser period --- but only if, in addition to the requirement that a judge must approve every single seven day extension, the case is itself is notified to Parliament and subject to a timely report to Parliament of all circumstances, with the option of a later parliamentary debate.
At 28 days, the UK already has the longest period of pre-charge detention of any western country. While we welcome the government’s continuing efforts to consult and seek consensus on this important matter, it should strive to work within existing limits instead of pushing to achieve ever-longer maximums.The Campaign Against Criminalising Communities (CAMPACC), the Centre for the Study of Terrorism (CFSOT) and Cage Prisoners organised a public meeting on the topic of ‘Detention Without Trial: Lives in limbo in Britain’, which demonstrated many examples of some of the injustices happening in the UK. You can listen to a recording of highlights of the meeting made by the London Sound Posse or read the following report by Paul Donovan:
In particular, the government should be under no illusions about the possibility of additional safeguards for those held beyond 28 days.
No amount of additional scrutiny by the courts and Parliament can hope to prevent the injustice of an innocent person detained without charge for over a month.
War on terror repeating the mistakes of past in Ireland, by Paul DonovanAnother angle I found interesting, that is not already captured in Paul Donovan's very good notes, is an intervention by Frances Weber in which she commented ‘it's not about guilt and innocence anymore; it's about risk. Are you a risk?’ (I.e. if you are a risk then you can get a control order, an ASBO, etc. without the need and fairness of any trial.)
Former Guantanamo Bay detainee Moazzam Begg has told how Sinn Fein Chief Negotiator Martin McGuinness told him not to be dejected about the present situation with the Muslim community in the UK.
The incident came just a couple of weeks before McGuinness stood in the Stormont buildings with Democratic Unionist leader Ian Paisley and Tony Blair to recommence the Assembly. “Martin McGuinness said don’t feel dejected, I know what it is like to be part of a criminalised demonised community,” recalled Begg, who drew parallels with the way in which the present war on terror is being conducted against the Muslims and the Irish experience over 30 years.
Begg was one of a number of speakers from across communities to address a meeting on detention without trial held at the London Muslim Centre in Whitechapel on 11 July.
“I’ve met in person with people who did the bombing, shooting and fighting in Northern Ireland and in the end it was with these same people who took part in the negotiations that led to peace.”
“The Northern Ireland conflict was solved by politics, which is the only way that any conflict can be resolved,” said Begg, who criticised the knee jerk reaction to any terrorist incident today that saw politicians reaching for more draconian laws like 90 day detention without trial.
Begg recalled two words that were at the heart of the Northern Ireland conflict that resound down to the years today’s conflict – “troops out.” The people of Northern Ireland wanted troops out of Ireland and today people want troops out of Iraq, said Begg, who said that had the government listened to those millions who marched against the war in Iraq the threat of terrorism would not exist in this country today.
Solicitor Gareth Peirce picked up on the Irish theme, recalling how the mistakes of the past 30 years were now being repeated. “The British state acted in a way that caused and fuelled the conflict for 30 years. It was the actions of the state and delivery of injustice that caused the reaction,” said Mrs Peirce, who recalled how before Bloody Sunday the IRA had been struggling to recruit members but after it people were lining up to join. The actions of the British state then in sending Lord Chief Justice Widgery over to conduct a whitewash inquiry, vindicating the army and blaming the IRA, indicated only that the law had been subjugated and no longer offered a refuge. “That set the scene for the next 30 years of conflict,” said Peirce. “Evil flourished. People served time in prison for things they had not done. One woman served 18 years for something she hadn’t done. Then there was the Birmingham Six case – 25 high court judges played a role in keeping them in prison.”
Peirce recalled how today the Special Immigration Appeals Commission was being used to destroy the rule of law, with evidence heard in secret without those accused being party to it. Some of the evidence had also been obtained in breach of international obligations, sometimes under torture.
She recalled how the mistakes of the past in Northern Ireland were being repeated with internment without trial – the cause the march on Bloody Sunday – was being practiced again. “This is an experiment and all these people are guinea pigs. People are quick in Britain to object to experiments on animals but less concerned about this experiment on people and their human rights,” said Peirce.
Liberty director Shami Chakrabati said she sensed a change in public attitude on both sides of the Atlantic. “People have had enough,” said Chakrabati, who recalled the inalienability of human rights. “It is only tyrants and terrorists who believe in torturing and locking people up without trial.”
Solicitor Muddassar Arani raised the question as to whether Muslim prisoners should claim prisoner of war status.
Responding to the point, Begg told how in the early days of Guantanamo Bay the prisoners had been given prisoner of war status which brought them within the Geneva Conventions. When it was realised this gave them protections the status was withdrawn.
The Committee has published several Reports dealing with human rights concerns raised by counter-terrorism policy. Although very critical in the past of aspects of Government policy, the Committee welcomes the recent significant change of approach and tone in Government pronouncements on counter-terrorism. This report focuses on the Government's main new proposals and a number of other issues (paragraphs 1- 13).
Recent Ministerial statements envisage an increase from 28 days in pre-trial detention limits. The Committee is not convinced of the need for this and recommends thorough scrutiny of the evidence, stronger judicial safeguards and improved parliamentary oversight. The Committee considers that there should be an upper limit on pre-charge detention and that Parliament, not the courts, should decide that limit after considering all the evidence (paragraphs 14 - 57).
The Committee recommends improved conditions of pre-charge detention, including a better-designed replacement for Paddington Green police station (paragraphs 58 - 98).
The Committee welcomes in principle the Government's review of the use of intercept as evidence. It remains convinced that the ability to use it would help bring more prosecutions against terrorists. It makes recommendations on implementation and considers that the law of public interest immunity would protect the public interest in non-disclosure (paragraphs 99 - 155).
The Committee makes recommendations on other alternatives to extending pre-charge detention, notably post-charge questioning (paragraphs 156 - 175).
The Committee believes that the Special Advocate system does not afford the individual a fair hearing and recommends changes (paragraphs 176 - 205).
The Committee may return to its concerns over control orders once the House of Lords gives judgment in cases pending. Following her predecessor's reference to the possibility of derogation from the right to liberty, the Committee awaits a response from the Home Secretary to its request for clarification of the Government's view of the level of threat from terrorism (paragraphs 206 - 210).
"Should individuals or small groups seek to take action outside of lawful protest they will be dealt with robustly using terrorism powers. This is because the presence of large numbers of protesters at or near the airport will reduce our ability to proactively counter the terrorist act [threat]," the document says.Consider how you show your opposition to this further criminalisation of innocents and serious threat of further increase of the pre-charge detention period. If you want to demonstrate in front of the Parliament, if you just go there it's unlawful, if you request prior authorisation from the Police it is further distracting them from their ability to deal with threats. If you thought of arranging to meet your MP at Portcullis House, you can now be arrested for trespass. Just stay home and write - if you feel safe enough to do that.
It is currently estimated that 13.7 per cent. of profiles held on the NDNAD are replicates, i.e. that a profile for a person has been loaded on more than one occasion (one reason for this is that the person gave different names, or different versions of their name, on separate arrests). Thus, the number of individuals on the database is approximately 13.7 per cent. less than the number of subject profiles. The presence of these replicate profiles on the NDNAD does not impact on the effectiveness and integrity of the database. Nonetheless, a long-term exercise is under way to identify issues associated with the removal of all such redundant replicate profiles.Marie Woolf reports in The Independent Meg Hillier quoting the same source:
Meg Hillier, a Home Office minister, admitted that because of the bogus replica files [in the National DNA Database], "The number of individuals on the database is approximately 13.7 per cent less than the number of subject profiles."Does that mean that in about 550,000 cases, DNA was taken from individuals, then attempts at matching the profile of this fresh DNA samples with existing DNA profiles in the NDNAD failed? That would be an admission of failure of the NDNAD to an unprecedented level! If that's really what these figures mean, it would say a lot about the effectiveness and integrity of the database.
Britain faces a 15-year battle to end the threat posed by Islamist terrorists, the Government's new security supremo has admitted.If the danger is really at its greatest ever level then we should consider ourselves lucky as the recent terrorism attempts have been attempted by incompetents.
Admiral Sir Alan West, the former First Sea Lord, said the overall danger facing the country, from both home-grown and foreign terrorists, was at its greatest ever level and that a new approach was badly needed to tackle it.
In his first interview since his surprise appointment by Gordon Brown as security minister, Sir Alan called on people to be "a little bit un-British" and even inform on each other in an attempt to trap those plotting to take innocent lives.Sir Alan used the word snitch to ‘get everyone rather excited and interested’. Advocating a policy that is commonly associated with Soviet Union, the Stasi and occupied Europe sounds more inconsiderate and insensitive than exciting and interesting. To get cooperation the authorities have to improve trust, the government must follow the law and respect human rights, and the Police have to behave fairly and in a proportionate manner.
"Britishness does not normally involve snitching or talking about someone," he said. "I'm afraid, in this situation, anyone who's got any information should say something because the people we are talking about are trying to destroy our entire way of life."
He said he was determined to build on the Government's core anti-terrorism strategy of the "four Ps" - prepare, protect, pursue, prevent - but that the "prevent" side, dealing with the radicalisation of young Muslims, was the most important.The four Ps were explained in details in the Rules of the Game report. There are four or possibly five elements of the counter-terrorism strategy known as ‘CONTEST’:
"This is not a quick thing," he said. "I believe it will take 10 to 15 years. But I think it can be done as long as we as a nation apply ourselves to it and it's done across the board."
Sir Alan gave his comprehensive assessment of the threat facing the country to The Sunday Telegraph following last weekend's car bomb attacks in London and Glasgow.Further mentions of an increased threat and of the ‘possibility of an imminent chemical or biological bomb attack’. Why should we believe the threat is greater than what has been shown in past trials? Is it this time more than just propaganda? Known examples of recent terrorism attempts have shown that we have been saved not just by the quality of our intelligence and swift actions of the Police (ricin poison cell) but also possibly by the competence of the criminals (the chappatti flour gang).
Yesterday, Bilal Abdullah, a 27-year-old doctor, was remanded in custody at Westminster magistrates' court on a charge of conspiring to cause explosions in connection with the Glasgow attack last Saturday.
At King's Cross, Mr Brown joined survivors and relatives of victims to commemorate the second anniversary of the July 7 bombings in London, while there were reports that up to eight police officers and civilian staff in Britain were suspected of having links to al-Qaeda.
The Sunday Telegraph can also reveal that Dame Eliza Manningham-Buller, the former director general of MI5, has disclosed that there are now more than 100 suspects awaiting trial across the country in 40 terrorist-related cases and warned of the possibility of an imminent chemical or biological bomb attack.
Sir Alan said that, after little more than a week in the job, it was clear to him that the overall threat had increased since he left his Navy post 16 months ago. He said: "There is a greater threat than there was."
Britain was now fighting "a disparate core of people - based abroad primarily - whom I'm afraid are racist, they're bigoted, they seek power, they're avaricious in money terms and they talk of the caliphate." He said that he had been asked by Mr Brown shortly before he took over from Tony Blair to "sort out" the Government's response to the terror threat. "We are not getting our message across properly," Sir Alan said.One can hope that an essential reading is the most excellent and thorough Rules of the Game report.
The 59-year-old who was chosen by Mr Brown as a non-partisan figure, said he would work to achieve a political consensus "wherever" possible - but added that it was inevitable that "disagreements" between the parties and across Whitehall would cause difficulties.
The admiral, who has been given a far-reaching brief across all government departments, also launched an attack on the phrase "war on terror" - which has been abandoned by ministers since Mr Blair left office.It didn't start as ‘the war on terror’, it started as ‘the war against terror’ (I'm pretty sure I saw it spelled one word on each line behind the presenter on BBC News - I must have watched the one time it happened)! Is that the sign that several of the rushed out anti-terrorism laws of the previous government will be repealed and the existing body of criminal legislation used instead?
He said: "I hate that expression. When I first heard it - I think it came over from the States - I though it was totally the wrong thing. It's not like a war in that sense at all. It demeans the value of a war and it demeans the value of a lot of things.
"I don't like the fact that we talk about 'the Muslim community' and this sort of thing. I have a lot of Muslim friends and they see themselves as British. We've got to be very careful. The threat is to our British way of life and all of our British people."Our foreign policy may not be solely to blame but it is clearly a contributory factor. Nafeez Mosaddeq Ahmed in Whose bombs? quotes a British Army officer as saying “Every civilian dead means five new Taliban”, and it has been reported that only a couple of weeks ago witnesses claim a village in British-run Helmand was bombed for three hours and that between 50 and 80 people, many of them women and children, had died.
Of the terrorists, he said: "I think they have severely damaged one of the world's great religions - the one they purport to support." The claims that British foreign policy was solely to blame was an erroneous argument, he said.
"It's not something that has happened recently. Iraq, for example, they use that as an excuse. There's no doubt the Middle East peace process is an important issue but actually when we were having men killed fighting to look after Muslims in Bosnia and in Kosovo, these people even then were trying to undermine us and ... cause damage to us."
He said he was in favour of giving the security services more money and staff "if there is a need for that".It is indeed unusual, in a democracy, to have an Admiral being offered a governement role looking after a security. Sir Alan appears to have great experience in war situations, but as he said ‘it's not like a war in that sense at all’.
Sir Alan, who will become a Labour life peer, was commander of the frigate Ardent in the Falklands in 1982. The ship was sunk with a loss of 22 crew. In 2002, he became First Sea Lord and Chief of the Naval Staff. While in the post he became a fierce critic of the Government's naval cutbacks.
Sir Alan said he had been "amazed" to be offered a ministerial job by Mr Brown and had taken a "considerable drop in money". When he marched out of No 10 alongside Jacqui Smith, the new Home Secretary, few if anybody knew who he was.
He said he had a text message from a Royal Marines general, a friend serving in Afghanistan and watching a television link, to ask if he had "become a bodyguard."
Please be advised the Law Lords refuse leave to appeal on the grounds that there is no point of law of public importance to hear the appeal at the House of Lords. Detailed decisions are not provided by the Appeal Committee and are not published on the website.v.
2007-06-24 FIRST PUBLISHED
2007-06-26 UPDATED with further info from the House of Lords
Brown stitched up the Labor leadership - now he wants to stitch up our liberty
Campaigners reject "sham" call for consensus over anti-terror measures
We don't need any more bells and whistles bolted on to Britain's anti-terror laws. We need fundamental change to our anti-terror policies. We need laws that target criminals, laws that protect the innocent, laws that encourage careful, rational police work, laws that discourage drag-net investigations, discourage prejudice, discourage racism, discourage panic. In other words we need the ordinary criminal law, not gimmicks invented to boost the discredited "war on terror."
Yesterday's official unwrapping of the government's long-trailed package of "anti-terror" measures makes it clear that New Labour's assault on civil liberties isn't about to end any time soon. SACC is opposed to the new measures and opposed to Gordon Brown's efforts to construct a sham "consensus."
Gordon Brown wants to prove his mastery over the Labour Party by extending police powers to hold "terror" suspects without charge beyond the current limit of 28 days - already far too long. Blair couldn't get Parliament to accept this even in the aftermath of 7/7.
Brown also wants to allow police to question people even after they have been charged. To give police this kind of power over people in the most vulnerable situation imaginable guarantees miscarriages of justice. He's even floating the idea of withdrawing the right to silence of ordinary members of the public by giving police powers to stop and question us. To refuse to talk would be a criminal offence. And he wants to give police still greater powers to bully and harass the men held under control orders - men who have never been charged with any offence and seem to have been selected for persecution mainly on the basis of grudges held by members of the intelligence services.
The government wants to conduct a review into allowing intercept evidence to be used in terrorism court cases. But the key issue concerning communications intercepts in Britain isn't whether or not the evidence should be allowed into court. The problem is that Britain lacks any effective procedure for holding communications-tappers to account. Figures provided in this year's annual report from the Interception of Telecommunications Commissioner (covering 2005 and the first three months of 2006) show (when adjustments are made for reporting methods) that interception warrants have reached a new annual high of 5,723. But this is only the tip of the iceberg. The total number of requests by "public authorities" (the nine agencies, 52 police forces, 139 prisons, 124 local authorities and 26 other public authorities) for communications data from service providers has reached a staggering 439,054. The Commissioner says that, of all these public authorities, it is the law enforcement agencies that are the principal users and that they have "acquired fully automated systems."
The Intelligence Commissioner says, in a report covering the same period "I do not propose to disclose publicly the number of warrants or authorisations issued to the agencies."
Perhaps the most disturbing aspect to all this is Brown's obvious wish to put these issues - some of the key issues facing Britain today - beyond the reach of politics. The man who became Prime Minister without a vote or even a debate wants "cross party agreement" for his attack on freedom before he puts it before Parliament.
We've been here before. For thirty years, successive British governments demanded - and got - a "bipartisan" approach to politics and policing in Northern Ireland. It alienated a generation of Irish people, stifled intelligent debate, guaranteed a compliant media and prolonged the "troubles." And it meant that rumours about state crimes in Northern Ireland's dirty war remained just rumours - mentioned in eccentric corners of the media but never brought to centre-stage and never publicly addressed by anyone holding political power. Brown's push for a consensus will come as a great relief to the murderers of Jean Charles de Menezes, to the spooks who stitched up the men held under control orders and the men being deported to torture in Algeria and Jordan, and to the officials who managed not to notice rendition flights calling at British airports.
Spin-poodle Lord Carlile is already at work promoting Brown's new vision. The Liberal Democrat peer and "independent" reviewer of the working of the terrorism laws has done as much as anyone to paint an acceptable face onto New Labour's machinery of repression. His methodology is to criticise some details, give his backing to whatever New Labour wants most, and steer the debate well away from fundamentals. So it's no surprise to find him expressing support for plans to extend pre-charge detention beyond 28 days.
Brown wants us all to agree on some sensible measures to do something about terrorism. Anyone can see that the proposed legislation goes far beyond that. But the problem is even deeper. The new measures, like previous initiatives, are built on the wide-ranging and politicised definition of terrorism contained in the Terrorism Act 2000. The definition includes acts that don't involve personal violence. And it outlaws support for overseas political movements engaged in almost any kind of serious opposition to tyranny.
Any anti-terrorist measure, however modest, that is build on such a definition is guaranteed to create injustice. Anyone who watches the new film "Taking Liberties", released today, will come away understanding that legislation like this is a threat to everyone.
We don't need any more bells and whistles bolted on to Britain's anti-terror laws. We need fundamental change to our anti-terror policies. We need laws that target criminals, laws that protect the innocent, laws that encourage careful, rational police work, laws that discourage drag-net investigations, discourage prejudice, discourage racism, discourage panic. In other words we need the ordinary criminal law, not gimmicks invented to boost the discredited "war on terror."
John Reid said he is "committed to discussing the issue with interested organisations, including police, the judiciary, civil liberties groups and communities."
We've seen this kind of consultation before. Lord Carlile conducted a lengthy review of the definition of terrorism and published his findings in March this year. He invited contributions from civil liberties groups and communities. Many groups, including SACC, made substantial submissions to the review. But few of the submissions found their way into Lord Carlile's report. It contains hardly a hint of the concerns expressed by many groups in their written submissions. And it doesn't mention the widespread opposition to the legislation Lord Carlile encountered in consultation sessions held around the UK. It certainly doesn't reflect the views expressed at the Lord Carlile held in Glasgow last July. Everyone attending the meeting - including police officers - was critical of the current legislation. Instead, Lord Carlile concluded the definition of terrorism was "useful and broadly fit for purpose."
The current definition of terrorism means that Britain's anti-terrorism laws are instruments of foreign policy at least as much as they are instruments of domestic policy. Everyone knows that it is Britain's support for US aggression in the Middle East that has made Britain a target for terrorists. Even those who believe that western intelligence agencies could be behind some terrorist incidents would agree that the Blair-Bush wars are at the heart of the problem. It's only the lunatics in the Cabinet that deny the link.
SACC will be insisting that any consultation over the government's new proposals must deal with the core issues of Britain's policy on terrorism. The Home Office appears to think that Lord Carlile has kicked this debate into the long grass. It is mistaken.
Richard Haley
On behalf of Scotland Against Criminalising Communities (SACC)
Notes
If we want to set back community-police relations and return to the bad old days of the ‘sus’ laws of the ‘70s and ‘80s, when levels of mistrust between police and public were at record highs and had drastic consequences, then the introduction of a new blank cheque power to stop and question anyone, anywhere, anytime without reasonable grounds for suspicion, is a very quick way of achieving this.However, they do like the existing ‘stop and search’ powers they already have. He added:
Neither the Metropolitan Police Authority nor the Metropolitan Police Service have called for this power because we understand the serious damage it could cause to the police’s relationship with London’s communities.
Section 44 stop and search powers already give police the power to stop someone without having reasonable grounds, just by virtue of the fact they are in a specified geographical area at a time when police have satisfied the Home Secretary that there is a heightened risk.Tomorrow the MPS will present its Review of police use of counter-terrorism Stop and Search powers in London at the MPA monthly meeting. The recommendations are:
ThatThese recommendations are in response to the MPA report Counter-terrorism: the London debate. The first recommendation of this report is: ‘Present an urgent review of the use of Section 44 Terrorism Act 2000 stop and search to the full Metropolitan Police Authority. Include in this review a clear rationale explaining why a given individual is stopped and searched rather than another. If unable to demonstrate to the Metropolitan Police Authority’s satisfaction through this review that the power is sufficiently effective in countering terrorism to outweigh the damage it does to community relations, stop using it, other than in exceptional circumstances, such as where there is a specific threat to a particular location.’
- the MPS continues to appropriately apply to the Secretary of State for authority to use Section 44 Terrorism Act 2000 (Section 44) powers (currently pan – London);
- the MPS continues to constantly review the appropriateness of a pan London authority and based upon the threat, intelligence and operational requirements continue to only apply for pan-London authority when it is needed to support tactics to prevent terrorism. However this recommendation is subject to the further recommendations made throughout this report;
- the MPS revisits and updates the Section 44 Standing Operating Procedure (SOP), and ensures that staff receive adequate briefing for the appropriate and legitimate use of Section 44 powers. Thorough post event de-briefing will be conducted to ensure effectiveness and highlight opportunities for improvement;
- the MPS provides sufficient training to enable staff confidently and properly to exercise their powers under all stop / search provisions;
- the MPS nominates a strategic lead officer for the tactical pan-London use of Section 44, to co-ordinate activity from the receipt of Section 44 authority through deployment and post deployment monitoring;
- as with the exercise of all other stop and search powers, the MPS promotes the tactical option of ‘stop and account’ within a revised SOP (See Recommendation Three);
- the MPS maximise opportunities to engage public awareness in the use across London of Section 44 by using appropriate high visibility signs / other equipment, where appropriate;
- the MPS develop a comprehensive communication strategy and engagement plan to ensure Londoners receive a consistent level of accurate information pertaining to police use of Section 44; and
- the MPS should conduct an annual MPS Equality Impact Assessment in respect to Section 44 of the Terrorism Act.
55. ACPO have released advice in relation to Section 44 which also deals with the issue of selection for searching, emphasising that the power can be used in both a targeted and non-targeted way but should never be based on stereotypical views of terrorists. In the absence of specific intelligence, search activity may be on a more random basis, with a wide range of people being stopped.This was of course not what happened in my case and the ACPO interim practice advice on stop of search does recommend behavioural profiling that is dangerously close to stereotyping.
61. There have been 19 complaints made in the MPS since Section 44 came into force in 2000, none of which were substantiated. In 2006 0.22% of Stop and Search activity (excluding Section 44) resulted in complaint. For Section 44, the figure was 0.01%. No formal disciplinary proceedings have resulted from complaints in relation to Section 44. However, 5 cases resulted in local resolution and the remainder were classified as unsubstantiated or withdrawn. All the locally resolved complaints related to incivility.This data has been selectively compiled. Following my complaint to the IPCC, several officers involved received disciplinary sanctions so my complaint cannot be counted in these ‘19 complaints’. The stop and search was found to be lawful and hence was not the direct cause of the sanctions, it is the ensuing arrest and search of my flat which were found to be unlawful and the general poor conduct of the investigation that were the justification for the sanctions. This likely explains why it is not counted in the figure mentioned. If I hadn't been stopped and searched none of the rest would have happened. There's likely a large number of similar cases where complaints that could and should be attributed to stop and search will be counted only in some other category.
'Anyone who commits relatively minor offences can have their DNA taken and analysed. At present, the main use of this process is to create a DNA fingerprint that can be used to identify that individual. But soon we will be able to create an entire genome sequence of that individual from a swab or blood sample. We will end up knowing everything about their genes. In the end, we could have millions of people on a database and know every single genetic secret of each person. That has to be a very worrying prospect.'
Unfortunately, within the limits of the existing legal framework, it is very difficult to prevent determined individuals from absconding. Nevertheless, I intend to do several things. First, I am already appealing to the House of Lords in several other control order cases about the interpretation of article 5 of the European convention on human rights on deprivation of liberty. We will consider other options—including derogation—if we have exhausted ways of overturning previous judgments on the issue.Dominic Grieve:
The Home Secretary has hinted that draconian new powers are needed, yet the existing powers extend to house arrest, if the Government decide that there is such an emergency that that is justified. It is for the Government to determine whether there is a state of emergency. Is the Home Secretary saying that he will come to the House and say that there is an emergency in which the state is threatened? If so, when will he do that? Is it not the case that unless he does that, there is no possibility whatever of imposing derogating control orders, as they would simply be in breach of the Human Rights Act 1998 and the European convention on human rights?In an earlier analysis Justice reminds us that:
The United Kingdom may derogate from Article 5 of the European Convention of Human Rights (“ECHR”) only:John Reid answering Jeremy Browne:
(a) in time of war or other public emergency threatening the life of the nation; and
(b) to the extent strictly required by the exigencies of the situation; and
(c) to the extent that such measures are not inconsistent with its other obligations under international law
(ECHR Article 15; cf. Human Rights Act 1998, section 14).
Let me deal first with the question of intercept evidence in court. We have been looking at that for a considerable time, and both Opposition Front-Bench teams know that the disadvantages so far outweigh the advantages that what they are suggesting meets with complete opposition from our security and intelligence services.Andrew Dismore:
I have great sympathy with my right hon. Friend, because the control order regime is clearly a very imperfect way of trying to deal with the problem, but I hope that he will not adopt the route of derogation. He said that he saw control orders as not even the second-best option. Perhaps he will tell us what he thinks is the best option. Does he agree with the Joint Committee on Human Rights, which I chair, that the best option is prosecution? We are concerned about the fact that the existing control order detainees are not subject to continual review to establish whether there is enough evidence to prosecute them. Last summer we recommended a series of ways of making make prosecution easier, one of which was the conversion of intelligence into evidence through the use of intercept. I heard what my right hon. Friend had to say about that, but the police, the Director of Public Prosecutions and the Attorney-General have said that they consider it an important weapon that would significantly strengthen their ability to prosecute. I hope that before my right hon. Friend presents his proposals he will give serious consideration to the Committee’s recommendations, including that one.John Reid answering Andrew Dismore:
I repeat that we always want to prosecute when there is a level of evidence that is sufficient to reach the threshold for prosecution. That is self-evident, but it is not the question. The question is: how do we tackle terrorist suspects when we do not have a sufficient threshold of evidence to charge, but have sufficient information to be alerted, through the intelligence and other services, to the fact that they may be preparing to commit an act of wholesale human destruction?The Government is not asking for the tools that it needs to build a case strong enough to bring to trial suspects—and intercept evidence is used in other countries—but it is using its own failure to deal with three individuals it claims are a serious threat to justify removing some of our essential human rights. Act now to ensure the UK doesn't derogate from Article 5 of the European Convention on Human Rights, the right to liberty and security.
14th May 2004Mouloud features in Taking liberties. In this movie, you will see the very sordid life that was imposed on him by this Government. I briefly met him after the preview showing. My very best wishes to him especially as, according to the BBC, Home Office minister Tony McNulty is considering persecuting him further: ‘We are disappointed, however, that the SIAC has determined that Sihali does not pose a threat to our national security. The government's highest priority is to protect public. We will be examining the determination closely to establish whether we have an avenue to appeal to the Court of Appeal and, if so, we will seek to overturn the decision.’
Today is a great day for Mouloud Sihali, his supporters and for justice.
As a jury, we sat through an incredibly lengthy and expensive trial, assessed all the evidence and came back with a verdict of Not Guilty on all the charges levelled against Mouloud Sihali. After the trial, several of the jury were shocked when the government proposed the deportation of all the cleared defendants in the Ricin Trial back to Algeria, to face an unknown and potentially dangerous fate. However, we were absolutely appalled when Mouloud Sihali was re-arrested and thrown into jail, without any charges proffered against him. His treatment since his release from jail has angered and dismayed us; under a strict bail regime he has been robbed of his freedom, treated unfairly and held under draconian conditions that shame us as a nation. Only his immense inner strength, the support of his friends and, ultimately, the belief in his innocence has seen Mouloud through dark days of what amounts to psychological torture
Although we do not approve of the SIAC system, with its shadowy policy of closed court sessions and secret evidence, which the defendant and even his lawyers are not allowed to see, we are grateful that Justice Mitting and his colleagues have reached a sensible conclusion. Mouloud Sihali is judged not to be a threat to national security; something that we jurors have always firmly believed.
We hope now that Mouloud Sihali can be left to live his life in peace and at last has the freedom to make a choice as to what he does with his future, without the damning label of “terrorist” or “threat to national security” hung around his neck.
Recent rulings by the Special Immigrations Appeals Commission (SIAC) - thanks to the excellent British and Irish Legal Information Institute BAILII database:
May 2007
April 2007
| 2002-03 | 2003-04 | 2004-05 | 2005-06 | 2006-07 | |
| DNA profiles added to the NDNAD | 444,394 | 431,723 | 480,286 | 625,797 | 667,737 |
| DNA profiles removed from the NDNAD | 256 | 45 | 53 | 165 | 115 |
Taking liberties is a documentary to be released in the UK on June 8th. Through stories of people from all walks of life intermingled with soundbites from Blair and his government, this movie tackles what's happening in the UK to the right to protest, the right to freedom of speech, the right to privacy, the right not to be detained without charge, to be innocent until proven guilty and to the prohibition of torture.
Just ten hours after having finished the production and with very little sleep, Chris Atkins, the film director, did a preview screening and Q&A at Amnesty International. The film was very well received but then most attending were already sensitive to the issues presented, if not activists.
‘This story is not told by celebrities or politicians, but by ordinary people whose lives have been turned upside down by injustice. What is probably most fascinating is to see how these people – whether they have been arrested for a peaceful protest or tortured in Guantanamo Bay – have reacted to their injustices in startling and uplifting ways.’ - Chris Atkins
This rich mix of stories means, that when the documentary is released to a wider audience, there's a chance for everyone to identify with one of the characters; this is the path to realisation that these liberties can be taken away from you. This is not the story of some remote dictatorship, this is happening to many here in the UK. The film includes footage rarely seen before (such as how the Police literally pushed the door on one the Fairford coaches to prevent the passengers to get out of the coach) making these episodes all the more immediate. And the animations are fantastic.
For now watch the trailer, on June 8th go see the full movie. I found it very effective, sometimes moving and with a few funny moments.
Justice's response to the consultation on the ethical issues in the forensic use of bioinformation conducted by the Nuffield Council on Bioethics provides some interesting insights regarding the compatibility of current policies with human rights laws.
[...]Here's Article 8 of the ECHR:
The current criteria for the collection and retention of bioinformation by police are wholly disproportionate to the needs of law enforcement. In particular, the retention of DNA samples of persons either not charged or subsequently acquitted appears to us a gross interference with the right to personal privacy. We note that this view is at odds with the 2004 judgement of the House of Lords in R v Chief Constable of South Yorkshire (ex parte S and Marper),[2004] UKHL 39. in which the House concluded that the retention of DNA samples of persons arrested but not subsequently convicted did not interfere with the right to respect for personal privacy under Article 8(1) of the European Convention on Human Rights, and – even if it did – was a legitimate restriction under Article 8(2). With respect, however, we consider the decision of the House in Marper to be deeply flawed. We further predict that it is unlikely to be upheld by the European Court of Human Rights on appeal for the following reasons.
[...]
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Justice's response highlights the amount of medical information contained in an individual DNA sample as opposed in fingerprints and photographs. That recent case law from the European Court shows that retention by the police of personal information can plainly amount to an interference with the right to respect for personal privacy under Article 8(1), and this should apply to Police retention of DNA samples. And, that retention of DNA samples of persons suspected, but not subsequently convicted, of an offence to breach Article 8(2) on the basis that such retention is unnecessary and disproportionate.
Justice also points out a potential breach of Article 6(2), the right to a fair trial.
Thus, while the legitimate interest in the prevention and detection of crime may justify the retention of DNA profiles of those proven guilty and charged, it cannot serve as a justification of the indefinite retention of DNA of individuals who are by law presumed to be innocent.Article 6(2) ECHR.
Here's Article 6:
Right to a fair trial
[...]
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
[...]
A legal challenge which will determine whether fingerprints and DNA samples taken from people who have been acquitted of crimes can be kept by the police has been given the go ahead for consideration in the European Court of Human Rights.
Michael Marper and S (a juvenile), the two cases included in the challenge, requested their fingerprints and DNA samples to be destroyed – but the requests were refused by South Yorkshire police. They both argued that the retention of fingerprints and especially DNA samples amounts to an unjustified breach of their right to respect for private life protected by Article 8 of the European Convention on Human Rights (ECHR). The applicants also submitted they were subject to discriminatory treatment (Article 14) as compared to others in an analogous situation, namely other unconvicted persons and those whose samples had still to be destroyed under the legislation. ([2007] EHCR 110)
You have until 2007-05-31 to sign the petition asking the Prime Minister to legislate to require all UK Police forces to delete DNA data from persons not convicted of an offence.
Links to my response to the consultation and other useful resources on the NDNAD can be found in Should the Police keep your DNA forever?
MANIFESTO FOR CCTV FILMMAKERS declares a set of rules, establishes effective procedures, and identifies further issues for filmmakers using pre-existing CCTV (surveillance) systems as a medium in the UK. The manifesto is constructed with reference to the Data Protection Act 1988 and related privacy legislation that gives the subjects of data records (including CCTV footage) access to copies of the data. The filmmaker's standard equipment is thus redundant; indeed, its use is prohibited. The manifesto can easily be adapted for different jurisdictions.Manu Luksch and Mukul Patel created the movie Faceless under the rules of the 'Manifesto for CCTV Filmmakers'.
[...]From the minutes of evidence taken before the joint committee on human rights on 2007-03-12 (uncorrected transcript of oral evidence to be published as HC 394-i)
vi. The Communications Service Providers (CSPs) are very important in this process and their staff do essential work. They are very co-operative and dedicated. I talk to them regularly and they are totally opposed to the concept of intercept being admissible in Court. The present regime provides a high degree of protection to the CSPs and particularly to those members of their staff who work in this sensitive field, and their strong co-operation referred to could easily be undermined. Here again, I think that it is essential for people holding views on this subject to talk to the CSPs, and to listen to what they say, and understand the basis of their strong opposition to any change in the present law.
[...]
Q21 Nia Griffith: You mention in your annual report that communication service providers are strongly opposed to intercept being admissible in court. Can you tell us why that is and should their agreement be a precondition to relaxing the ban?Is the main issue regarding use of intercepts in court really that it's not good for business if we, the public, know that our calls are passed to NTAC, GCHQ or a similar agency?
Sir Swinton Thomas: I visited all the major telephone companies and internet companies at least once a year and more often with some of them, as was necessary. There are two aspects. The companies themselves who are extremely co-operative in providing the material which is needed for the intercept are very concerned about their capacity and the way in which they go about dealing with these issues being made public. There is probably a commercial aspect to that which is difficult for me to deal with in public. I dare say that if you have a chairman of a company dealing in communications, he would say, "Quite frankly, we would prefer that our customers did not know that we were passing all your calls across to a government agency" [my emphasis], which is a fairly natural response. A more important one is that they think - and I think they are right - that if there was a change in the law all the ways in which they go about providing material would be open to examination and cross-examination, which is something they do not want to happen. Members of the general public probably know very little about it. [...]
Column For the French, the business of exploiting available laws, directives and other rules is an art form. One such inventive use of the constraints is the 'greve du zele' ('working to rules' strike action) where those on strike work more, not less.
When on greve du zele workers observe all rules - however archaic or unsuitable they may be - to the letter with such minutiae that their productivity becomes virtually nil. Greve du zele gives employees who are by law forbidden to go on strike, the ability to protest, making the interdiction moot.
It is most popular with airport staff.
Similar techniques are being applied in the UK. Section 132 of the Serious Organised Crime and Police Act 2005 (SOCPA) outlaws protests without police permission in a designated area within a 1km straight line from the central part of Parliament Square. Several individuals involved in peaceful protests have already been arrested under this law. Comedian and human rights activist Mark Thomas calls it a "mass lone demonstration", and describes how to participate
But one of the most intriguing suggestions has come from British lawyer Clive Stafford Smith.
Stafford Smith suggests that musicians use copyright law to hold the American government to account for its use of music to torture detainees in Afghanistan, Iraq and Guantanamo.
Music as torture / Music as weapon
Suzanne G Cusick in her article entitled "Music as torture / Music as weapon", describes the history of sound as an instrument of torture. The military has a long history of developing sound itself as a well, using infrasound, or subsonic frequencies, to disorientate battlefield opponents.
Writes Cusick:
"As early as May 2003 the BBC reported that the US Army had used Metallica's Enter Sandman and Barney the Purple Dinosaur's I Love You in the interrogation of Iraqi detainees, playing the songs repeatedly at high volume inside of shipping containers."
She also finds mentions that the US Army used music by Christina Aguilera, Eminem (Slim Shady, White America) and Dr Dre. Stafford Smith adds to this list Aerosmith, Don McLean and Bruce Springsteen (Born in the USA).
Bruce Springsteen has already shown a willingness to defend his 'brand': he fought and lost a trademark dispute involving a cybersquatter.
According to Stafford Smith, he has the opportunity, with other musicians, not to have their music used by US government to torture unlawful enemy combatants, to sue under copyright law.
Moral rights
Musicians can use their moral rights (Article 6bis of the Berne Convention) to object to the derogatory treatment of their work to prevent any similar further use and claim compensation for the damage to their honour and reputation.
This aspect of copyright law is not fully recognised by the USA; it is not referenced in the EU-US-Japan-led Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. The USA has historically been fully behind the economic rights and even extended the copyright legislation with the so called Mickey Mouse Act giving more commercial benefits to the industry. Europe has traditionally been more balanced, recognising both moral and economic rights as fundamental. Closely related to the right of integrity is the right of identification, which when implemented let creators refuse to be identified if their work has been edited in a way they object to.
Ironically, moral rights have been under by the Creative Commons utopians. By wanting to liberalise copyright to allow all remixes, they need to get rid of the right of integrity.
The BBC's Bill Thompson notes that Lawrence Lessig dismisses moral rights as "a French idea" that has no real usefulness.
This isn't so. Artists could work with their labels to sue for copyright infringement and demand detailed information as to when and where their music has been played so that they can calculate how much royalties they are owed.
Copyright law, which has been extended for the sole benefit of media corporations, could possibly achieve more for the human rights of many where human right laws have mostly failed. ®
Bootnote Last week, I went to Charing Cross police station and got my Application for Demonstration approved. I'll be demonstrating on my own to call for the 'Police to consider other options than to arrest innocents (and keep their DNA) or shoot them'. I won't tell you where or when I'll demonstrate as this is a lone event. Go organise your own demonstration next month.
Read and comment on this article at El Reg...
Follow-up posts:
86. My main conclusions are as follows:With the possible exception of (11), Lord Carlile adopts a very prudent approach and dismisses, sometimes even abruptly, the issues he is aware of.
(1) There is no single definition of terrorism that commands full international approval.
(2) The risks posed by terrorism and its nature as crime are sufficient to necessitate proportional special laws to assist prevention, disruption and detection.
(3) A definition of terrorism is useful as part of such laws.
(4) The current definition in the Terrorism Act 2000 is consistent with international comparators and treaties, and is useful and broadly fit for purpose, subject to some alteration.
(5) Idiosyncratic terrorism imitators should generally be dealt with under non-terrorism criminal law.
(6) The discretion vested in the authorities to use or not to use the special laws is a real and significant element of protection against abuse of rights.
(7) The exercise of such discretion requires especial care by those in whom the discretion is vested.
(8) New sentencing powers should be introduced to enable an additional sentence for ordinary criminal offences, if aggravated by the intention to facilitate or assist a terrorist, a terrorist group or a terrorist purpose.
(9) Offences against property should continue to fall within the definition of terrorist acts.
(10) Religious causes should continue to fall within the definition of terrorist designs.
(11) The existing law should be amended so that actions cease to fall within the definition of terrorism if intended only to influence the target audience; for terrorism to arise there should be the intention to intimidate the target audience.
(12) The existing definition should be amended to ensure that it is clear from the statutory language that terrorism motivated by a racial or ethnic cause is included.
(13) Extra-territoriality should remain within the definition in accordance with international obligations.
(14) A specific statutory defence of support for a just cause is not practicable.
(15) A new statutory obligation should require that the exercise of the discretion to use special counter-terrorism laws in relation to extra-territorial matters should be subject to the approval of the Attorney-General having regard to (a) the nature of the action or the threat of action under investigation, (b) the target of the action or threat, and (c) international legal obligations.
(16) The law should not be amended to enable the use in the United Kingdom of the special laws against persons subject to diplomatic immunity.
62. The fundamental tests applied are to be found in the 24 pages of the Code of Practice for Crown Prosecutors. It is possible, though far from easy, to challenge some prosecutorial decisions by judicial review. The continuation of jury trial provides an important protection against prosecutions the public find unreasonable or arbitrary. Current dilution of jury trial is understandable where there is a real risk of the jury process being contaminated by corruption or intimidation, infection of the jury process itself. Otherwise the jury remains the jewel in our criminal justice system. Mistakes will occur from time to time in that system, including decisions to prosecute. However, the discretion exercised by the prosecutor should not be discarded lightly on the basis that one day a seriously malign government may come to power and arbitrariness will become the order of the day. That view, expressed to me occasionally by sophisticated commentators, is one I reject.Let's pass on how mistakes can seriously adversely affect the life of individuals. It would have been welcome to discover the rationales by which Lord Carlile rejects that view. My understanding of the legal system is that most laws survive the government that introduces them, so having a set of over broad laws being passed by a government considered benign can create just the tools needed by a seriously malign government. The Terrorism Act in itself, even with too broad definitions, is possibly not a major risk in and of itself, but combine it with, for instance, the National Identity Register that will be build as a result of the Id Card Act, and the National DNA Database, and you can see how the risks are magnified.
The Islamic Human Rights Commission is very concerned by the latest terror statistics published by the Home Office according to which, of 1126 arrests made under the Terrorism Act 2000, only 211 have been charged with terrorism offences with only 40 of those convicted.I briefly commented on these statistics in Not enough innocents arrested, let's do an ad campaign.
IHRC notes that the anti-terror laws are so broad that what would normally be considered as relatively minor offences have been included in the 40 successful terror convictions. For example, the statistics include convictions of individuals for wearing badges bearing the logo of proscribed organisations related to the conflict in Northern Ireland, such as the UVF.
The MPS is registered under the Data Protection Act with the Information Commissioner. The Data Protection Registration No. is Z4888193, the entry expires on 8/9/07.You can verify this for yourself by searching for the registration number at the ICO's register of data controllers search page. (Permalinks to the register don't tend to be permanent, but here's one to the entry itself). I can't reproduce the full entry here for copyright reasons (the copyright is listed at the bottom of the entry).
[...]The top recommendation is very good news. The abuse of Stop and Search under Section 44 is an issue I raised with the MPA when I went to ask a question and when I met its Chair of the Stop & Search Scrutiny Board.
In response to these findings, the Metropolitan Police Authority makes the following recommendations for the Metropolitan Police Service, and offers the advice which follows to other bodies. For ease of reference, the items on these lists appear here in decreasing order of priority, rather than in the thematic order in which they appear later in this report.
Complete list of Recommendations and Advice
Recommendations for the Metropolitan Police Service:
1. Metropolitan Police Service: Present an urgent review of the use of Section 44 Terrorism Act 2000 stop and search to the full Metropolitan Police Authority. Include in this review a clear rationale explaining why a given individual is stopped and searched rather than another. If unable to demonstrate to the Metropolitan Police Authority’s satisfaction through this review that the power is sufficiently effective in countering terrorism to outweigh the damage it does to community relations, stop using it, other than in exceptional circumstances, such as where there is a specific threat to a particular location.
2. Metropolitan Police Service: Publish an explanation of Operation Kratos (the generic title for a series of Metropolitan Police Service standard operating procedures and tactical responses to the threat posed by suicide terrorism), setting out clearly the learning that has taken place since 22 July 2005.
3. Metropolitan Police Service: Accept and apply to current counter-terrorist activity the learning from previous terrorist campaigns.
[...]
I also believe that the National Identity Register will help police bring those guilty of serious crimes to justice. They will be able, for example, to compare the fingerprints found at the scene of some 900,000 unsolved crimes against the information held on the register. Another benefit from biometric technology will be to improve the flow of information between countries on the identity of offenders.It would appear from this that all the bioinformation held on the NIR will be wide open for fishing expeditions by the British Police and Police forces from other countries (Europe? USA? others?). This is not something I had understood to be the case and as NO2ID points out, it contradicts what Tony McNulty, then Home Office minister for Immigration, Citizenship and Nationality, stated in Standing Committee D on 6 July 2005:
Again, the police, like other public bodies, even though there is that exemption under the DPA, need to substantiate why they would want to go through somebody's record in detail. They are allowed to, but not on a fishing expedition. The form of that is elaborated on later in the Bill—in clauses 19 to 23, I am told, as if by magic. There are safeguards not only against state agencies, for want of a better phrase, going fishing in the database but against misbehaviour and abuse of the database by those who manage the system.Tony McNulty made an earlier reply in this Standing Committee D that highlights another issue I hadn't grasped:
By the bye, I want to explore one point further, and perhaps return to it later in our deliberations. It might be the one about which the hon. and learned Member for Harborough was getting agitated. It is simply this: the existence of a PNC number for an individual implies a criminal record. If the PNC number is recorded in the public domain in the sense of the verification process, one does not have access to the substance about a criminal record and the offences that a person has committed. In such circumstances, people who perhaps should not could have access to the fact that someone has a PNC number and therefore a record. It does not follow that even if someone captures the PNC number on the verifiable end of the database, it allows them to unlock the door and see what is on a person's record. The existence of the PNC implies that there is a record. I need to consider that in more detail and will come back to the Committee.That means that all those arrested - including the many innocents - will end up with a PNC number in the NIR that may be communicated during the verification process. Looks like this may become one more long time effect of my arrest.
The Identity Cards Act ensures that personal reference numbers which would tend to reveal sensitive personal data cannot be held on the register. The PNC number for example, could not be added to the register as this could suggest that the individual had been of interest to the police, or that the individual had a criminal record.
Thousands of council staff are being trained to police the smoking ban in bars, restaurants and shops in England.SpyBlog has, as usual, a very detailed and insightful analysis of this news item. Go read it in full. It points out among other things that such surveillance may be unlawful under the Regulation of Investigatory Powers Act 2000 section 28 (b), that the 'authorised enforcement officers' do not have any power of arrest, and that Police Constables do not have the power to issue a Fixed Penalty Notice under the Health Act 2006, since the Police are not designated Enforcement Authorities.
Ministers have given councils £29.5m to pay for staff, who will be able to give on-the-spot £50 fines to individuals and take court action against premises.
They will have the power to enter premises undercover, allowing them to sit among drinkers, and will even be able to photograph and film people.
[...]
Ian Gray, policy officer for the Chartered Institute of Environmental Health and chief trainer for the government course, said he expected most councils would take a "softly, softly approach" at first.
"But there will be some occasions where action has to be taken and I am sure the compliance officers will not shy away from that," he added.
"These officers do not have to identify themselves when they go into premises and they can even film and photograph people to gather evidence although this may not be appropriate in many cases.
"There will be two ways of doing this, either staff can go in and identify themselves to the landlord, but they don't have to."
[...]
During the current terrorist threat, pubs have not been targeted as they were in the 1970s by the Provisional IRA and in 1999, when the Admiral Duncan in Soho was hit by a lone neo-Nazi bomber. But, especially since the July bombings last year, pubs have been included among the possible “soft targets” identified by the security services.'Hostile reconnaissance' is the justification the Police has used to stop and arrest innocents taking pictures, filming or even just drawing sketches of buildings.
[...]
His [Jim Maietta from the National Counter Terrorism Security Office] advice on protective security ranged from simple good housekeeping to prevent packages being planted on or near the premises, to being aware that terrorists need to plan their attacks – what’s known as “hostile reconnaissance”.
“The Al-Qaeda training manual talks about getting information, maps and plans and so on. That helps them determine how much explosive they will need, and they will also look at levels of security.”
[...]
Joining the dots is a game for children. And the Police doesn't seem to like children, dots or games.
Abu Bakr about his questionning during his detention following his arrest:
It was farcical. I was questioned for seven days but not once did they put these allegations about a plot to kidnap and behead a soldier to me. They were doing things like putting a piece of paper in front of me - a note, a scribble by one of my children, a jacket, a hat - and asking me about it. My solicitor advised me to make no comment so that's what I did. It felt a bit amateurish like they didn't really know what they were doing.
About one of the defendent in the alleged liquid bomb plot:
The box, Peirce said, also contained another of the items listed in the charge against her client, a crude map of Afghanistan--drawn years ago, Peirce says, by the boy's younger brother: "It's a child's map!"
During my Police interview:
It could be doodles but is it a plan of the station or anything like that?
Maybe it is the fear of the unknown, of the potential hidden meaning behind scribles and doodles? Is anything the Police doesn't understand, whether a behaviour, a scrawl, an item, a language, a drawing, a religion, an origin, etc. something to be afraid of, something to threaten someone's liberty with? Must we all conform and be rationale at all times?
Police paranoia is not a new phenomenon. Some sixty years ago:
Planned as a series of texts which would summarize the surrealist position at the end of the war, Free Unions was published 2 years after its conception, due to the arrest of the editors and the seizure of the proofs - thought to be coded messages of anarchists.
They have left the police station without any better understanding of why they were there than when they first arrived seven days ago.Last June, Mohammed Abdul Kahar and Abul Koyair were released without charge after their dramatic arrest in Forest Gate for their suspected involvement in an alleged biological terror plot. 250 officers participated in the arrest, some of them wearing full chemical, biological, nuclear and radiological (CBNR) suits and respirators. There were widespread press reports of police looking for chemical factory and suicide chemical vests. Police claimed to be acting on 'specific intelligence'.
Not a word was ever mentioned to either of them about a plot to kidnap, or the grisly suggestion of a beheading, or even of a soldier at all.
Both have been met with a consistent refusal over seven days for any explanation for their arrest. They are convinced that others in the police station must be as innocent as they, and urge that they also be swiftly released.
It's a very odd thing, the whole enormity of a massive armed raid and immediate publicity put out by the police, that this was suspected chemical warfare, a suicide operation about to be mounted on specific intelligence. [...]There's clearly propaganda, and likely poor intelligence, at play, but what I find very curious is why when the Police arrest someone for a very serious offence that is leaked all over the press, they don't ask, during the formal interview, any question about how those under arrest may be involved in what is said to be the cause of the arrests.
However, within the police station, a man who had been shot through the chest was discharged from the hospital, wholly prematurely, and the hospital bed taken to a cell in Paddington Green police station. It was grotesque, a grotesque experience, in which the police never once asked either of the brothers about chemical weapons, about suicide attempts, about anything that they might have been suspected of having. The police were begged, for heaven sake, "tell us why we were in the police station?" "Why did you arrest us?" "Who was it who said this?" And an answer came there none. They were just suddenly released.
25/12/2006(On 12 January, the Special Immigration Appeals Commission (SIAC), will hear from the lawyers for Reda Dendani.)
Reda Dendani
HMP Long Lartin
24.12.06
I shall start this letter by announcing that I refuse to be called “Q” any more. I am Reda Dendani, 31, Algerian national, married and have a step daughter of 7. I've been living in the UK since 1998 as an asylum seeker. Calling me “Q” was not designed by the Home Office to protect me from the public. It was the opposite in fact. Labelling me like an object concealed the human being I am and facilitated the grip of allegations from the Home Office in the media.
The Home Office issued me with a deportation order 16 months ago on 11.8.05. This was after I had spent 2 and a half years in Woodhill and Belmarsh prisons, then freed on control orders after the House of Lords made my detention illegal under the Anti Terrorism Act 2001 on December 2004.
Basically the Home Office regards me as a suspected terrorist, a threat to national security, a dangerous man - my presence in the UK is not conducive to the public good... These are big words, very shocking and frightening – well designed for the media but not supported by any proof or evidence – just allegations! This has destroyed my life. I would have been prosecuted if a fraction of what was alleged was true, as I was for a far lesser offence on which I pleaded guilty. This is to say there are enough laws to face any criminal in the UK but if you cannot prosecute someone it is simply because he is innocent and as such must be free to go.
I've paid for the offence enough; it hurts when you read on the bottom of the Home Office letters “Building Safe, Just and Tolerant Society” or under the logo of the Treasury Solicitors, “Law at the Heart of Government”.
The Home Office has forgotten these guidelines and trespassed its limits by ordering my detention in a high security prison against my will without any charge. This illegal detention has been a problem and still is for the prison because of no clear status where all other prisoners are convicted and me and other foreigners are not.
The Home Office, in a move which is the mother of all hypocrisy, is offering me a way to appeal against its decision through a special court called SIAC. It is enough to read what Amnesty International's 2006 report has said about the UK and it human rights in this SIAC. I'm not allowed to know and therefore to cross examine what is held against me. A madness – a crazy situation. I'm fighting a ghost. Whatever I say there is always closed sessions where I'm not allowed in nor my solicitor. This is an affront to the fundamental justice system. Because of this, I've stopped resisting my deportation. Better for me to face Algerian authorities – more straightforward than this Chinese torture made in UK. I've signed all the necessary papers for this deportation.
I've seen both the UK representative and his Algerian counterpart in the prison I'm held in. This was 9 months ago on 24.3.06. The new crazy thing is I'm still in prison in the UK. It is such nonsense that I've taken the Home Office to court to force it to proceed with the deportation. I thought because it was High Court not “SIAC” I will see justice done.
My problem is now very simple. The Home Office wants to deport me to Algeria and I accept to be deported to Algeria. My case was dismissed on 3.10.06 and the court reserved its reasons for the decision.
What is going on? If this is not a Police State, what is one? A foreigner in this country is a synonym for a criminal; a second class citizen. The facts speak for themselves and changing the name of things or giving them the cover of the law doesn't changes their reality. That is: I'm a HOSTAGE in this country. I'm held against my will. I'm in UK's version of Guantanamo.
Prove me wrong!
Mr Reda Dendani
And two days later, The Times reveals that:
Terrorism is designed to put pressure on some of our most cherished beliefs and institutions. So it demands a proactive and comprehensive response on the part of law enforcement agencies. But this should be a response whose fundamental effect is to protect those beliefs and institutions. Not to undermine them.
So, although a development in the role of the security services and the police is essential and desirable in this context, I believe an abandonment of Article 6 fair trial protections in the face of terrorism would represent an abject surrender to nihilism. It would represent defeat.
And that is the point I want to emphasise this evening. Our criminal justice response to terrorism must be proportionate and grounded in due process and the rule of law.
We must protect ourselves from these atrocious crimes without abandoning our traditions of freedom.
...
London is not a battlefield. Those innocents who were murdered on 7 July 2005 were not victims of war. And the men who killed them were not, as in their vanity they claimed on their ludicrous videos, 'soldiers'. They were deluded, narcissistic inadequates. They were criminals. They were fantasists.
We need to be very clear about this. On the streets of London, there is no such thing as a 'war on terror', just as there can be no such thing as a 'war on drugs'.
The fight against terrorism on the streets of Britain is not a war. It is the prevention of crime, the enforcement of our laws and the winning of justice for those damaged by their infringement.
Acts of unlawful violence are proscribed by the criminal law. They are criminal offences. We should hold it as an article of faith that crimes of terrorism are dealt with by criminal justice.
And we should start by acknowledging the view that a culture of legislative restraint in the area of terrorist crime is central to the existence of an efficient and human rights compatible process.
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But more generally, I want to emphasise that we need to avoid a response to terrorism which is based only on fear and suspicion. This kind of climate has no room for the rule of law. Indeed it encourages the opposite.
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Critical to [fighting terrorism] is that individual rights and national security are not seen as being mutually exclusive. This is not a zero-sum game. Improvements to national security do not have to come at the expense of rights. As the title of this lecture has it: security and rights. Not security or rights.
So what are the fundamental principles? What is the essence of fairness? I think we need to start with a clear understanding that certain principles are absolutely not negotiable, whatever the pressure.
It seems quite appropriate that as head of the prosecuting authority I should state these plainly and clearly, even though they are mainly obvious.
First, trials should be routinely open and reported before independent and impartial tribunals.
So we can't have secret courts, we can't have vetted judges, and we can't have secret justice.
This cuts both ways. Defendants have a fundamental right to transparency of proceedings. But the public also have a fundamental right to know. This is especially true in cases of terrorist crime, where rumour and unease are endemic and very dangerous.
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Secondly, equality of arms - the right to call and cross-examine witnesses under equal conditions. Equal access to the court.
This is not negotiable. Fairness between prosecution and defence is an inalienable aspect of fair trial. A level playing field.
The third principle is closely linked to this. Defendants are entitled to know the case is against them. They must have full access to the State's case in all circumstances. Without that, there can be no fair trial.
And they are entitled to have any material in the State's possession which either undermines the prosecution's case or assists the defence case.
Fourthly, a protected right of appeal is not negotiable.
And finally, the most important of all: the presumption of innocence. The criminal standard of proof beyond reasonable doubt, with the burden resting squarely on the Crown's shoulders, cannot be compromised. It is not negotiable.
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Even if it is true that victory against terrorism is unlikely ever to be final, the protection of fair trial rights, which is central to the legitimacy of all forms of social control, can always be achieved- given the political will.
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We have a great responsibility to make sure that entire communities are not stigmatised by the law or by the general public.
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It is absolutely essential that terrorism legislation is capable of upholding the law and securing public safety, without threatening different communities in a way that undermines their freedom. Without creating unjustifiable discrimination.
an SAS unit is now for the first time permanently based in London on 24-hour standby for counter-terrorist operations. [...] Although the Metropolitan Police has its own substantial firearms capability, the fatal shooting of Jean Charles de Menezes, the Brazilian electrician who was mistakenly identified as a terrorist bomber on the run, has underlined the need to have military expertise on tap.So one one hand we witness an elite army surveillance unit being involved in the shooting of Jean Charles de Menezes, the officer in charge of the operation that lead to the killing being promoted, one of the police marksmen that shot him shooting another person, no officer prosecution, and now bringing in the SAS on a permanent basis, and on the other hand we hear the head of the Crown Prosecution Service state that we need to avoid a response to terrorism which is based only on fear and suspicion, and that our criminal justice response to terrorism must be proportionate and grounded in due process and the rule of law. Will it get worse, will the government order mistakes so that there's no opportunity for fair trial and the rule of law; or will it get better, will the rule of law and due process apply to all and we'll see Tony Blair in the International Criminal Court?
I relunctantly updated the Is the UK a police state? page with mentions of the Serious Crime and Mental Health Bills.
The Serious Crime Bill will, if passed as is, gives the Home Office further leeway to punish individuals that have not committed any crime and have not been tried. There's an excellent summary at MagnaCartaPlus. Breach of the proposed Serious Crime Prevention Order, would be a criminal offense (up to five years in jail) in a similar way as for the breach of an ASBO.
The Mental Health Bill, which fortunately is encountering some opposition, would allow ministers to force the detention of those they consider mentally ill (and dangerous).
These bills, if passed, will give even more powers to the Government to lock up individuals that are so calm, well-behaved and law-abiding that they can't be tried and convicted in a court of Law.
‘We have no specific intelligence [...] The level of threat against the United Kingdom is of an unparalleled nature and growing. [...] Unparalleled in terms of operational threat since the second World War. Far graver threat in terms of civilians than probably during the second World War or the Cold War; that's it.’So on one hand Sir Ian Blair says he doesn't have any specific intelligence, and on the other that the threat is greater than during WW2 when tens of thousands of people were killed in London. This is irresponsible propaganda.
The National DNA Database (NDNAD) records the DNA profile for a particular individual. It does not hold data on arrest and criminal records. This information is held on the police national computer (PNC). The facilities do not exist to cross-refer between all records on the NDNAD and PNC to the level of detail that would be required to provide the information sought.In other words, 1,139,445 of the entries in the DNAD as of last July were for persons never having been found guilty of any crime. A third (32.96%) of the DNAD entries are for innocents.
However, we can say that information provided by the Police Information Technology Organisation (PITO) from the PNC indicated that as at 14 July 2006, when there were approximately 3,457,000 individuals on the database, 2,922,624 of these persons also had an entry on PNC. Of these, 2,317,555 (79.3 per cent.) had a conviction or caution (i.e. a criminal record). The difference between the two figures is attributable to: young persons under 18 who have a formal warning or reprimand recorded on PNC; persons who have been charged with a recordable offence where proceedings are on-going; and persons who have been arrested for a recordable offence but no further action was taken.
As indicated in the answer of 20 December 2005, Official Report, column 2890W, there were 139,463 people who have a DNA profile on the National DNA Database (NDNAD) who have not been charged or cautioned with an offence. This figure comprised 124,347 people who have been arrested and subsequently not been charged or cautioned with an offence and 15,116 people who had volunteered a sample and given consent to the profile being loaded on the NDNAD....and John Reid (Home Secretary), not even two months ago, in October 2006 was stating:
It is not currently possible to determine how many of the 124,347 "CJ arrestees" (persons with a DNA profile on the National DNA Database who have been arrested and subsequently not charged or cautioned with an offence) have never been convicted of an offence. [...] The figures might suggest that the remaining 100,828 persons have never been charged, reported for summons or sanctioned for any offence.The number of innocents in the NDNAD in a year has gone from 139,463 (Andy Burnham) to 100,828 (John Reid), to eventually more than an eightfold to 1,139,445 (Joan Ryan). Is it alright for the Parliament and us to be misled with such contradictory figures?
Andy Hayman, the Metropolitan Police's assistant commissioner responsible for anti-terror probes, said few arrests or charges arose from such searches.I raised this very issue with MPA last year.
[...]
I am not sure what purpose it serves, especially as it upsets so many people, with some sections of our community feeling unfairly targeted.
Joan Ryan (Parliamentary Under-Secretary, Home Office) answers:
Planned projects in the Home Office which will make use of biometrics include:The Parliamentary Under-Secretary, Home Office did say "include" - one major omission is the NDNAD (National DNA Database). And the PNC includes data from some of these biometric databases.In addition there are a number of smaller projects some of which are partnerships with other organisations in the UK and abroad. Existing projects in the Home Office which make use of biometrics include:
- preparation for the addition of a second biometric in the UK ePassport;
- Identity Cards programme in support of the national identity scheme;
- UKvisas Biometric programme to ensure that all UK issued visas will use biometric identifiers by the end of 2007 or early 2008;
- Biometric travel documents;
- Biometric residence permit to be developed in line with common EU standards;
- IAFS+, extension of IAFS (Immigration and Asylum Fingerprints System) to accommodate the biometric visas and biometric residence permits;
- e-Borders programme, delivering a modernised border control, which is fundamentally more effective, efficient and secure to meet the future operational needs of UK border, law enforcement and intelligence agencies;
- PITO project to use face recognition to support FIND;
- LANTERN, a mobile fingerprint system under development by PITO.
As for planned projects there are a number of smaller projects some of which are partnerships with other organisations in the UK and abroad. The Home Office is continuing to examine new technologies, and new ways of using existing biometric technologies, to ensure the protection of the public.
- IDENT1, UK police platform for fingerprints and palmprints;
- UK ePassport: completion of its rollout scheduled for third quarter of 2006;
- IAFS (Immigration and Asylum Fingerprint System), database of biometric data relating to immigration cases and asylum seekers;
- ARC (application registration cards) and the use of mobile quick check readers. ARC is a credit card sized plastic credential which contains fingerprint details of asylum claimants and others;
- RepARC (Reporting with ARC) programme to require asylum claimants to produce their ARC card at each reporting event;
- ISRP (Immigration Stateless Refugee Project) to collect fingerprint details from holders of the 1951 UN Convention Travel Document;
- VIAFS (Visa Immigration and Asylum Fingerprint System), collecting fingerprints of visa applicants from certain countries;
- EURODAC, European-wide system in support of the Dublin Convention uses fingerprint data in order that member states can determine whether an asylum-seeker or a foreign national found present within a member state has previously claimed asylum in another member state;
- IRIS (Iris Recognition Immigration System), a free and voluntary way for air passengers to clear immigration utilising their iris image to verify their identity;
- Systems in prisons to prevent escapes by prisoners exchanging places with visitors;
- C-NOMIS (Custody- National Offender Management Information System). Fingerprint based for confirmation of prisoner identity against IDENT1 and PNC.
- Pilot of a Methadone dispensing system using iris recognition, at HMP Eastwood Park.
- Trial of fingerprint based access control to IT systems in prisons.
FIND Pilot has now gone Live. Good news on the FIND project is that the FIND Pilot has now gone live in 5 Forces around the country. The Pilot started 06/11 and will run for approximatly three months with an option to extend the system if requested by the Forces and it is feasible. A Benefits / evaluation workshop is happening 29/11 to assess the first months success of the Pilot and capture the benefits gained so far to the Forces. The Forces involved in the Pilot are Lancashire, West Yorkshire and Merseyside (supplying their data and images) and Devon and Cornwal and British Transport Police Leeds Office (read only). We have had requests for access by other Forces '/ goverment bodies and of which need to be considered.
Some of my personal encounters with IDENT1 and NDNAD: fingerprints, palm prints and DNA samples taken. As recorded in the PNC. Raising some of these issues with the MPA. Finding that private companies are keeping their own DNA databases, possibly including my own DNA; complaining about it to the ICO; one response; a further one. Discovering that DNA samples and profiles are kept until death of the subject. Discovering that DNA samples and profiles are kept for eternity and that the NDNAD records information as to whether the subject has been convicted (which can of course be incorrect).
The Home Office is also involved in these changes.
At a time when the EU should have been providing global leadership in the wake of US abuses, European governments were secretly colluding with the Bush administration on secret detention and unlawful rendition
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Poland, the United Kingdom and Italy are singled out as having been especially uncooperative.
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The committee's report concludes that there were at least 1,245 overflights or stopovers by CIA planes in Europe, and that some of these flights probably involved prisoner transfers.
Since Tony Blair's New Labour government came to power in 1997, the UK civil liberties landscape has changed dramatically. ASBOs were introduced by Section 1 of the Crime and Disorder Act 1998 and first used in 1999. The right to remain silent is no longer universal. Our right to privacy, free from interception of communications has been severely curtailed. The ability to travel without surveillance (or those details of our journeys being retained) has disappeared.
Indeed, as Henry Porter (the Observer journalist famous for his recent email clash with Tony Blair over the paring down of civil liberties) reveals in this unsettling film, our movements are being watched, and recorded, more than ever before.
The meeting will be attended by senior representatives from the emergency services, Transport for London, and the National Health Service. The Committee will ask them questions about what progress they have made on key issues such as underground communications, digital radios / alternatives to mobile telephones, and putting in place plans to care for survivors of major incidents.
Sir Malcolm Rifkind, QC, MP, Ross Anderson and Henry Porter consider where we go from here. The Identity Cards Act 2006 is law, and must be repealed, but meanwhile the government is already working on extending its scope, through "information sharing" across the public sector and an "Identity Management Action Plan" to be produced by the end of this year. What new threats does this offer to personal liberty? How can the slide to the database state be halted?
Plenary speakers: Gareth Peirce, Mark Thomas, Craig Murray, Mark Muller, Brian Haw, Bill Bowring, Nafeez Ahmed
Themes: Anti-terrorism measures, detention and repression of asylum seekers and other migrants, new police powers against demonstrators, ASBOs, ID cards and state surveillance; and how foreign policy and new state strategies for social control relate to all of these measures.
Speakers: David Cole (Professor of Law at Georgetown University and author of Terrorism and the Constitution) and Louise Christian (Human Rights Lawyer and Liberty Board Member)
Chair: Katy Clark MP
David Cole and Louise Christian will discuss whether sacrificing civil liberties has in fact made us safer, and suggest that some trade-offs in liberties may have actually made us less safe. They will discuss what has and has not changed since the terrorist attacks of September 11 and July 7, respectively, and how we should proceed as we seek security and justice for all in the future.
One in four men could soon be included on the national DNA database which is helping to turn Britain into a nation of suspects, an expert group has warned.The figures I had included in Is the UK a police state? where from March 2004. A million more DNA samples have been collected since.
The database has been established with little or no public consultation but over the past 10 years has collected DNA profiles on more than 3.5 million people, including 24,000 children and youths under the age of 18.
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Sir Bob [Hepple, chairman of the Nuffield Council on Bioethics] said that this implies that the Prime Minister would be happy to see every citizen's DNA profile being stored on the database. "The cost would be enormous but there is also the deeper question - instead of being a nation of citizens we become a nation of suspects," Sir Bob said.
[...] Mr Raissi, 32, an Algerian pilot, was the first person to be arrested in connection with 9/11 when armed police raided his West London home at 3am on September 21, 2001. He was held for five months in Belmarsh high-security prison before a judge declared that there was no evidence that he was involved in terrorism.
[...] The alleged terrorist link was one of a number of false allegations made against Mr Raissi. Prosecutors claimed in court that he was the “lead instructor” for the main hijackers who crashed aircraft into the World Trade Centre and the Pentagon. The FBI was said to have video material showing him in the company of Hani Hanjour, one of the hijack pilots.
However, all the evidence was shown to be unsubstantiated and, in February 2002, District Judge Timothy Workman ordered Mr Raissi's release.
[...] Mr Raissi said: “My life has been ruined. I lost my freedom, my reputation and my career. The courts have said I am innocent – why does the Home Secretary not accept this?” Jules Carey, Mr Raissi's solicitor, said the Home Secretary's decision (to refuse compensation) was “morally wrong. We hope to establish that his decision is also legally wrong.”
For instance: In 1993, John Matthews was arrested and detained for 10 weeks by the Police in connection with an IRA bombing. When the case came before a Magistrate's Court the prosecution offered no evidence and he was told by the Magistrate that he left the Court without a stain on his character.More...
As he literally left the Court, on the steps, he was served with an "Exclusion Order" and immediately removed to N.Ireland.
Free Unions - Unions Libres. Published July 1946 (1 issue). Dir. Simon Watson Taylor. London.(Thanks to AB for recently mentioning this story.)
Planned as a series of texts which would summarize the surrealist position at the end of the war, Free Unions was published 2 years after its conception, due to the arrest of the editors and the seizure of the proofs - thought to be coded messages of anarchists. With its publication, English surrealism became aware of the need for unity following the dissentions of the pre-war period, in order to establish a firm basis for the future. Artistic contributors included Lucien Freud and E.L.T. Mesens.
From the Introduction:
The concept of unity has today come to imply an antithesis to that of freedom. It is this antithesis in politics, morality, art and society that denies life... It is in our search for liberty that we, in the dark jungle of torpor, destruction and imbecility that has dug its roots into the world today, have discovered for ourselves the path cleared by surrealism in the tangled undergrowth.
Questions raised over some terror plot charges
By John Crewdson
Tribune senior correspondent
Published August 31, 2006
LONDON -- He is 17 years old, the son of a Muslim family that emigrated years ago to Britain from India. His lawyer describes him as a "steady, strong young man," which is good, because at the moment he is in a world of trouble.
Under British law his name cannot be published because of his age. But public documents attest that he is the youngest person among the 15 so far charged in what Scotland Yard calls a plot to commit "mass murder on an unimaginable scale" by blowing up airliners en route to the United States.
The teen is accused not of helping to plan the alleged attack, but of "possession of items that would be of use to terrorism." Among the items were documents the police described as "suicide notes" signed by other young men preparing to die.
"They're not suicide notes at all," retorts his lawyer, Gareth Peirce, whose application for bail was rejected Tuesday by a London judge. "They're really simple wills. To call these suicide notes was absolutely disgraceful."
The wills, Peirce adds, "all date to 1995," when her client was 6. She says they appear to have been drawn up by British Muslims going to fight alongside other Muslims in Bosnia more than a decade ago, "which was not a crime."
The charge against the youth --along with the release of five suspects and the failure so far to formally accuse five others out of 25 arrested more than three weeks ago--suggests that the British police may have erred on the side of caution in arresting individuals who knew little or nothing about the plan to blow up the airliners.
The alleged plot has been portrayed as potentially another Sept. 11 attack, or worse. Some of those who have seen the prosecution's evidence agree that several defendants seem to have been contemplating the in-flight bombings of passenger jets.
Skepticism grows
But skepticism has grown about some of the initial police claims and charges, reminding some Britons of other recent instances in which police initially overstated the seriousness of purported terrorist plots, such as the arrests two years ago of eight men suspected of planning to bomb the stadium where the famed Manchester United soccer team plays. The suspects were quickly released when the case against them evaporated.
In large part, the skepticism has been fueled by the reluctance of the police to more fully describe the evidence supporting their dire warnings that an attack had been "highly likely."
But two defense lawyers who have seen some exhibits presented by prosecutors in closed court hearings say there does appear to be solid evidence that a core group of the defendants was planning to smuggle liquid chemicals--from which a powerful but relatively unstable explosive can be made--aboard trans-Atlantic airliners.
One of the defense lawyers, who spoke on condition that he not be named because to do so would risk a citation for contempt of court, called the evidence "quite serious indeed."
Both lawyers said that they had seen no evidence linking a number of those arrested to a terrorist plot, and one lawyer termed what the police did Aug. 9-10 as "over-broad sweeps."
The documents in the youth's case, according to Peirce, were found by police in a box in the boy's mother's house, apparently left there by his since-divorced and departed father, who once operated a London charity that collected clothing and medicine for Bosnian Muslims.
The box, Peirce said, also contained another of the items listed in the charge against her client, a crude map of Afghanistan--drawn years ago, Peirce says, by the boy's younger brother: "It's a child's map!"
A third item mentioned by police, recovered from the same box, is a book investigators say contains instructions for building bombs. Peirce says the book is filled with drawings of electrical circuits that might contain information useful in building a bomb, although not the kind of bomb the defendants are suspected of having tried to make.
"He saw a book that had diagrams," Peirce says. "He said it looked like the textbooks at school. What I said in court was this charge can only have been brought by people who are seeing things through spectacles that say `terrorism,'" Peirce said after the bail hearing.
The 17-year-old's only connection to the alleged plot, Peirce maintains, is that some of the other suspects in the case worked for his father's now-defunct charity, which she identified as Islamic Medical Aid.
Questions also have been raised about charges against Umair and Mehran Hussain, two university-educated brothers in their early 20s who lived in the heavily Pakistani-Muslim Walthamstow area of northeast London, where eight of the defendants grew up.
Their father, Fazal Hussain, who labored in a shoe factory to put his sons through college, was described by a family friend as "devastated" by the arrests.
Umair and Mehran Hussain are both charged with a single count of withholding from police information pertaining to a possible terrorist act, a far less serious offense than conspiracy to commit murder and terrorism, of which 11 of their fellow defendants have been accused.
Will allegedly withheld
The information allegedly withheld, according to one source who has seen the prosecutors' evidence, is a Muslim will signed "nearly a year ago" by a third brother, Nabeel Hussain, who was charged Tuesday with conspiracy to commit terrorism and murder.
Umair and Mehran Hussain are not accused of participating in or even knowing about the alleged bombing plot, the source said, only of having failed to tell the police about Nabeel's will.
The prosecution's contention that the will relates to terrorism, this person said, hinges on a quotation it includes from the Koran. Nabeel's lawyers are said to have assembled Koranic scholars who will testify that the quotation has nothing to do with terrorism.
Muslims say there is no ideological significance attached to the making of an Islamic will.
The full range of evidence in the case is not likely to become public unless there is a trial, something lawyers say could be two years away.
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jcrewdson@tribune.com
A panel of five MPA members interviewed the officers with Sir Ian Blair, the Metropolitan Police Commissioner, acting as police advisor. Catherine Crawford, Clerk to the Authority, was also in attendance.
MPA Chair Len Duvall, who led the interview panel, said:
<snip>
"Clearly there are some sensitive and unprecedented circumstances involved. Candidates were chosen on the basis of their application and ability. The MPA would not prejudice an officer's fair promotion prospects by making assumptions about future disciplinary action. Officers will not be posted into new posts until outstanding issues are resolved."
Without protection for the individuals who make up society, society itself founders. Nor is there a balance to be struck between the rights of individuals and national security: national security depends upon every individual in this country having inalienable rights
Paul Stephenson, Deputy Commissioner of the Metropolitan Police, said: ‘We are confident that we have disrupted a plan by terrorists to cause untold death and destruction and commit mass murder. This was intended to be mass murder on an unimaginable scale.’What are they trying to achieve with this unprecedented scale terminology? Isn't one supposed to be a professional presenting dispassionate facts and risk assessment, and the other a politician offering a measured reaction with a way forward? Instead all we get is propaganda.
John Reid, the Home Secretary, said that ‘loss of life would have been on an unprecedented scale’.
‘This has ruined my life, I cannot sleep, I have flashbacks, I cannot sleep with the light off.’The Metropolitan Police Authority (MPA) issued a press release asking for the MPS to produce a report on the ‘Forest Gate operation’. I would have hoped for stronger language when we learn that at the last Authority meeting the Commissioner misled the Authority. I expect the chair of the MPA wouldn't want anyone to think the MPA is a soft touch when some innocent Londoners are shot by the MPS.
I am told by the Library that this is the 52nd Home Office Bill since the Government came to power in 1997.More...
As ‘The Metropolitan Police Authority (MPA) does not consider the Metropolitan Police Service (MPS) to have overreacted to the horrific terrorist attacks’ of last July 2005, and that ‘the MPS response in terms of both disaster-management and investigation has drawn respect and recognition from around the world’ we have an essential disagreement. If the MPA finds the MPS is doing a perfect job in respect to its anti-terrorism response then a discussion on how it can be improved is not possible.
This satisfaction can not be shared by all Londoners when there are so many stop and searches under Section 44(2) of the Terrorism Act 2000, and subsequent arrests of innocent Londoners. This does not make us any more secure but does impact the lives of Londoners.
Even Sir Ian Blair, the Metropolitan Police Commissioner, appears to disagree with MPA's assessment. He is reported by Bloomberg to have said at the MPA's own 'Together Against Terror?' conference last December: ‘London police have arrested 130 suspects since suicide bomb attacks in July, yet the threat of terrorism continues to increase’.
That's more than all the arrests, whether in connection with terrorism or not, resulting from stop and searches conducted under Section 44(2) during the combined financial years 2003/4 and 2004/5 (the Met arrested 125 persons during this period according to the Statistics on Race and the Criminal Justice System). And that's only for five months.
Former Home Office criminologist and visiting professor at Kent University, Professor Marian Fitzgerald mentioned on BBC One, on 22 January 2006, that ‘under the Terrorism Stop and search [legislation], the arrest rate there is only 1% and very few of these arrests are anything to do with terrorism.’
This shows that that the MPS must work more effectively with more intelligence instead of stopping, searching and arresting Londoners, without reasonable cause, on the basis of a stereotypical profiling.
How can the MPA be satisfied that the MPS keeping DNA samples, fingerprints and palm prints of innocents forever, and PNC records, including mentions of non-conviction, until the Londoner reaches 100 years old increases our security.
The MPA is to be commended on getting the MPS to publish statistics such as the Statistics on Race and the Criminal Justice System. May I suggest the MPA puts further pressure on the MPS for the statistics to be published earlier and to include the number of arrestees being tried and how many are convicted.
The MPA's 'Together Against Terror?' conference was I'm sure a very interesting. It is unfortunate that its existence was announced by a press release only three days earlier and that the selection of the over 150 (100 in the press release) community members has not been open and transparent. I couldn't find transcripts or videos of the event, either. Hopefully lessons have been learned from organising this event and the forthcoming events will be more open to Londoners.
I am disapointed that your response has not convinced me that ‘in counter-terrorism, as in all other fields of policing, the MPA remains committed to securing an effective, efficient and fair police service for all of London's communities.’
Terrorist need:Common sense would have prevented such publication. Don't law abiding residents also need "a place to live"? Don't law abiding residents need to be aware of security measures to respect them? Don't law abiding residents ever return goods even for large cash refunds? Don't law abiding retailers sell legal goods and shouldn't be surprised to have people buy them?
- A place to live: Are you suspicious about any tenants or guests?
- To plan: Have you seen anyone pay an unusual amount of attention to security measures at any location>
- Money: Individuals may set up bogus bank accounts, copy credit cards, return goods for large cash refunds.
- Equipment: If you are a retailer, do you have any cause to be suspicious about anything being bought?
