Fri, 15 Jun 2018

When do the police find a detainee vulnerable and an appropriate adult is called?

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 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:

(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:

...

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).

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Fri, 23 Feb 2018

Fact-checking

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

Very happy birthday to WhatDoTheyKnow!

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Sun, 19 Feb 2017

Transport for London’s retention of CCTV images

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:

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Sat, 14 Jan 2017

GCHQ did not illegally spy on me

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'.

PI's Did GCHQ Illegally Spy on You

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.'

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Sat, 18 Jun 2016

Consultation process for the Met Detention Equality Impact Assessment flawed

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.

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:

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).

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Thu, 21 Apr 2016

Fewer detainees held for longer by Met police

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.

Average time in custody

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.

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Sat, 09 May 2015

Met Police and mental health trust of racist cover-up makes national news

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).

The Independent p. 31 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.

The Independent p. 32

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.”

i p. 27

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.

Bootnote

Here are my previous posts about this incident:

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Sun, 03 May 2015

Epic interview of the National Autistic Society’s Chief Executive

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.

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Mon, 06 Apr 2015

What did the SLaM NHS Foundation Trust and the police cover up at River House

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 of the 2014 version of the report p.29 of the 2015 version of the report

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.

Apparently racist behaviour by TSG officers

‘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)

Massive police presence causing distress to vulnerable patients not involved in the disturbance

’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)

Communication between SLaM and Bromley Borough Police lost in translation

‘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

SLaM’s staff attempts to conceal intramuscular injection from patients

’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)

SLaM staff appears to have been confused, lost control of the situation and retreated to the nursing station abandoning some vulnerable patients

‘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

‘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

The definition of the following terms in ‘Appendix 4 – Acronyms, abbreviations and terms’ had been redacted

‘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

p. 41 of the 2015 version of the report 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.’

Bootnote

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.

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Mon, 30 Mar 2015

Surveillance in Trafalgar Square and the UK

Deutsche Welle filming crew 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.

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Sun, 22 Feb 2015

Police marking of autistics

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:

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:

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Wed, 18 Feb 2015

Throwaway society

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:

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Thu, 29 Jan 2015

NHS Trust forced to publish unredacted full report about massive police deployment to mental health ward

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

Decision notice FS50514652

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.

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Mon, 19 Jan 2015

Privacy campaigners vindicated in fight to delete DNA profiles of innocents

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.

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Sun, 09 Nov 2014

Policing of autistic suspects

Tape

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.

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Tue, 28 Oct 2014

Profile on the Restart Project's blog

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

Panda at a Restart Party

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]

The Horse is Technology, by Thich Nhat Hanh

Bootnote: Read an earlier post about my experience of becoming a restarter.

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Wed, 09 Jul 2014

IPCC case file eventually destroyed. Possibly. Probably.

IPCC disclosed case fileAfter 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.

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Tue, 24 Jun 2014

Further supplementary evidence to the Home Affairs Committee (Taser use forms)

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. This second supplementary submission provides further information about the use of Tasers by and tactics of the the Metropolitan Police Service (MPS) when they were deployed on the night of 2012-10-01 at the River House mental secure unit, part of the Bethlem Royal Hospital run by the South London and Maudsley (SLaM) NHS Foundation Trust.
  2. As mentioned in paragraphs 17 of my evidence1 I have an ongoing complaint with the Information Commissioner’s Office about the cover up of the MPS concerning incidents at the River House mental secure unit. As part of their response to this complaint, the MPS have disclosed four Taser use forms2. The further information contained in these forms should be directly relevant to this inquiry.
  3. The forms confirm that four Tasers were ‘Drawn’ and reveal that 12 ‘TASER officers [were] present’.
  4. The text of the four forms is very close but with some differences. So much wording is identical that it is obvious the four officers conferred before filling in these forms, which may well be the standard procedure. However, some differences are significant.
  5. It appears that part of the intelligence that informed police decisions was faulty. One form’s ‘Information/Intelligence’ box includes: ‘Reports were also received that someone had been stabbed to death within the unit and that a further person had also been stabbed.’ while the three others state: ‘Reports were also received that someone had been stabbed within the unit’. Nowhere in the fully unredacted summary report3 is there any mention of a stabbing and the extensively redacted full report4 only includes one mention on p. 25: ‘One report by xxxx refers to “support to stabbing incident”. This is probably based on one of several hoax calls made by xxxxxxx.’ The police based its decision on how to intervene in a mental health ward in part on intelligence which was a hoax (not even considered worthy of mention in the summary independent investigation report), with one officer believing there had been two stabbings resulting in one death and three other officers believing there had been one stabbing and no consequent death, when there had been no stabbing at all.
  6. While the tactical options considered included ‘Negotiators’, ‘Prison training tactics’, ‘Taser’ and ‘Entry to save life and limb’, the one adopted was ‘Officers used prison training tactics and cleared the unit with the use of taser. Each of the bedrooms/rooms were cleared and all patients were eventually contained in the lounge area. The staff were removed from the secure room they were in and the aggressive ring leaders [also described as ‘main trouble makers’ in other forms] were removed from the group of patients into a separate secure location.’ The forms do not mention any consideration to the potential additional trauma to the vulnerable patients treated on this mental health ward when faced with ‘prison training tactics’ imposed by TSG officers, twelve of them equipped with Tasers and four of them having their Tasers drawn.
  7. At a meeting of Lambeth's Health and Adult Services Scrutiny Sub-Committee5, representatives from 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’. The investigation report already contradicted this statement, but now we learn that SLaM was attempting to cover up ‘prison training tactics’ used by the police.
  8. In light of these Taser forms, it would be useful for this inquiry to look into what intelligence the police use when deployed to mental health settings, how they check this intelligence with medical staff, the suitability of the tactics considered and used, and whether there should be support for patients following a police deployment.
  9. Further to the recommendation in paragraph 22 of my original evidence to publicly publish a minimum amount of information to ensure some transparency about police deployment to mental health units, police forces should publish monthly figures of the use of Tasers (and other weapons) that also include:
    • (a) how many weapons were brought to mental health settings,
    • (b) how many and which type of weapons were used (and as already suggested, which type of use) in mental health settings, and specifically on mental health wards,
    • (c) overall number, age, ethnicity and whether patient/staff/other of those police tactics are used against.

[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

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Tue, 17 Jun 2014

Supplementary evidence to the Home Affairs Committee (incidents at the River House mental health secure unit)

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]

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Wed, 14 May 2014

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:

  1. This submission consists of three unrelated sections:
    • The first part is about my experience as someone with Asperger’s syndrome of a police encounter at Southwark tube station on 2005-07-28 that resulted in an unlawful arrest.
    • The second one is about two critical incidents that occurred at the River House facility operated by the South London and Maudsley NHS Foundation Trust on 2012-10-01. I eventually exposed that 48 Metropolitan Police Service (MPS) officers were deployed and four Tasers drawn.
    • The third one is about the use of Mental Health Act (MHA) 1983 s136 in London and is the result of a research I did last year.
  1. I submit this written evidence as an individual having lived in London for over twenty years.[1]

A) Autistic behaviour considered suspicious and subsequent unlawful arrest

  1. On 2005-07-28 at 19:21, when trying to take the tube at Southwark tube station, Metropolitan Police Service (MPS) officers found my behaviour suspicious, stopped and searched me under s44 of the Terrorism Act 2000 and eventually arrested me for the offence of public nuisance.[2]
  2. In May 2013 I was diagnosed as being on the autistic spectrum - of the Asperger’s type, by a clinical neuropsychologist at Homerton Hospital.
  3. The reasons given by the police officers for finding my behaviour suspicious were that:
    • I went into the station without looking at the police officers at the entrance or by the gates, i.e., I was ‘avoiding them’ as I ‘appeared to be shielding [my]self from view’
    • two other men entered the station at about the same time as me
    • I was wearing a jacket ‘too warm for the season’
    • I was carrying a bulky rucksack
    • I kept my rucksack with me at all times
    • I looked at people coming on the platform
    • I played with my mobile phone and then took a paper from inside my jacket.
  1. As can be seen from this list it is clear that my failure to interpret social cues appropriately, including avoiding eye contact with the police, which is typical autistic behaviour, triggered the stop and search and the wrongful arrest.
  2. While on the platform there were reminders to ‘keep your bags with you at all times’ and of course I interpreted these literally keeping my rucksack on my back at all times.
  3. I am hypersensitive to sound and I was made to wait for a while at the entrance of the station, before being led to the police van, while some station’s alarms were ringing. As my hands were handcuffed I could not block my ears.
  4. At the station entrance an officer removed the handcuffs and started giving me back what they had taken from my pockets. However, confusingly another officer said that was not the proper procedure and I was re-handcuffed and was told a senior officer would come to apologise and I should wait in the police van. First time the door re-opened when I was in the back of the van was not to apologise as I had just been told but instead to tell me I was arrested.
  5. 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?’[3]. 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.
  6. After four years of fighting, including an IPCC supervised investigation, an appeal and threats of civil actions, the MPS Borough Commander for Southwark ‘apologise[d] 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’[4].
  7. 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)[5]. This training should be made more generally available.
  8. 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[6].
  9. 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.

B) The River House incidents and its cover-up by the NHS and the MPS

  1. Two inter-related incidents involving service users happened on the night of 2012-10-01 at the River House mental secure unit, part of the Bethlem Royal Hospital run by the South London and Maudsley (SLaM) NHS Foundation Trust. Police were called to both incidents. These incidents 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’[7].
  2. The extent of police involvement was covered up by SLaM and the Metropolitan Police Service (MPS). SLaM delayed publication of its investigation report and initially published a heavily redacted version before I forced it, with the assistance of the Information Commissioner’s Office, to publish the redactions as well. The MPS also delayed their response to my Freedom of Information requests and still claim that the ‘Incident Management Log [their final report] cannot be located’[8], i.e., was lost.
  3. Data obtained from a campaign of Freedom of Information requests to SLaM, the MPS, the Independent Police Complaint Commission (IPCC), the Care Quality Commission (CQC) and Monitor, as well as from ongoing complaints to the Information Commissioner’s Office about breaches of the Freedom of Information Act in SLaM’s and the MPS’s responses, and from letters sent by the MPS to Baroness Jenny Jones has revealed the extent of this cover up[9]: 48 police officers were deployed including six officers from armed response units, two from dog units, 21 PC from the Territorial Support Group (TSG)[10] and the entire Bromley Borough night response team[11]. TSG officers entered the mental health ward and four drew their Tasers[12].
  4. It is unclear whether anyone was physically hurt in these incidents. SLaM stated on 2012-11-08 in its first response to my Freedom of Information requests that luckily this time ‘there were no injuries to patients or staff in this incident’[13]. It reiterated this position to its board of directors: ‘there were no reports of any injuries to staff or patients.’[14] However the investigation report states: ‘One patient sustained injury to his hand during the second incident. No physical injuries were sustained by staff.’[15] In any case, having TSG officers drawing their Tasers in a mental health ward can exacerbate or cause mental trauma to vulnerable individuals already suffering from mental health issues.
  5. To reassure Londoners that policing of vulnerable individuals with mental health issues is improving, the Metropolitan Police Service and the NHS Foundation Trusts will have to improve on their transparency as well as their performance.
  6. Commander Christine Jones, lead on mental health for both the Metropolitan Police Service and the Association of Chief Police Officers (ACPO) is reassuring when saying at the London Assembly’s Police and Crime Committee on 2013-11-21 ‘I have stopped police responding to mental health institutions for the purposes of restraint unless there are very, very good reasons why. […] 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.’[16] However this message has not managed to get through the organisation to the MPS press office which still stated on 2014-01-28 ‘The MPS does not have a specific policy in relation to the deployment of firearms officers to mental health units.’[17] Again, we have confusion.[18]
  7. A policy about all deployment of police to mental health units, preferably based on the words of Commander Christine Jones, should be published.
  8. When a deployment of police officers to a mental health unit does happen, some information should be published soon after the incident such as:
    • (a) how many officers from which unit were deployed,
    • (b) how many officers from which units entered mental health wards,
    • (c) details of any restraints of patients by police officers,
    • (d) details of any use of weapons by police officers; in particular if Tasers are used, details of the type of use (fired, angled drive stun, drive stun, red dot, arcing, aimed and/or drawn[19]) should be included,
    • (e) details of injuries caused to patients, staff or any other person.
  1. Any investigation report into incidents that required police intervention should also be published in full in a timely manner.

C) The use of section 136 of the Mental Health Act 1983 in London

  1. Attempting to find out how Mental Health Act (MHA) 1983 s136 is used in London has proved very difficult as there was ‘no central recording system in place that recorded the number of individuals detained under s136 of the Mental Health Act (MHA) by MPS officers for the period [I requested of] January 2012 to December 2012.’ and ‘Form 434’s would need to be searched for and the relevant information retrieved from each of the 32 London boroughs.’[20] (which is not possible to ask in a Freedom of Information request).
  2. The difficulty of obtaining any data on s136 in London is surprising when one finds out that the situation in London is better than in the rest of the country as the MPS has been very good in avoiding to bring individuals detained under s136 to custody suites. Only 59 persons were detained in police custody in the calendar year 2012 whose ‘Arrest Offence [in NSPIS] was set to equal “Mental Health Act” or “S.136 Mental Health Act”’[21] (when the number of s136 detentions for that year was approximately 2,665[22]).
  3. It is however interesting to note that not all boroughs are equally represented: Southwark (12), Lambeth (10), Croydon (7), Newham (5), and Lewisham (4) and Westminster Central (4) top the list of boroughs that use custody suites occasionally to detain individuals under s136.[23] With the exception of Newham, the boroughs were the SLaM NHS Foundation Trust operates are the ones with the highest number of individuals detained under s136 that were brought to a police custody suite and not into the NHS, in 2012.
  4. The operation of Section 136 in London[24] suggests that the situation has improved in Newham: ‘If a Section 136 patient arrives at one of these place of safety on an occasion when it is already occupied by a previous patient then arrangements are made to transfer one of the patient’s to a ward. Whilst this is not practical in every case, the evidence clearly shows that performance in 5 out of 6 [including Newham] of these places of safety is considerably better than average.’ I have been in touch with SLaM but have not managed to get any information to explain why numbers were higher in SLaM’s boroughs and/or any remedial step taken.
  5. Some limited information is available from many sources[25]. Hopefully this frustrating situation has recently improved as Commander Christine Jones expressed at the London Assembly’s Police and Crime Committee on 2013-11-21 that ‘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.’[26]
  6. It would be useful for more statistics to be published on a regular basis. As an example, for London the following data would be helpful:
    • (a) the number of individuals detained under s136 of the Mental Health Act (MHA) 1983 by MPS officers,
    • (b) the list of NHS s136 suites, per borough and the breakdown, per s136 suite, of the number of days the s136 has been opened that month,
    • (c) the breakdown by type of the initial place of safety those individuals in (a) where brought to (i.e., s136 suite, emergency department, custody suite, or other),
    • (d) the breakdown by type of vehicle (per s136 suite, A&E department and custody suites) those individuals in (a) were conveyed to a place of safety,
    • (e) the breakdown by gender (per s136 suite, A&E department and custody suites) of those individuals in (a),
    • (f) the breakdown by age range (per s136 suite, A&E department and custody suites) of those individuals in (a),
    • (g) the breakdown by ethnicity (per s136 suite, A&E department and custody suites) of those individuals in (a),
    • (h) the breakdown of whether those individuals in (a) were considered to be suffering from the effects of drink or drugs (per s136 suite, A&E department and custody suites).
    • (i) the breakdown of whether of those individuals in (a) were restrained (per s136 suite, A&E department and custody suites),
    • (j) the number of individuals detained under s136 of the MHA and admitted to hospital in each borough, following an MHA assessment.

[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

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Mon, 21 Apr 2014

Deployments of armed police officers at London's mental health units

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.

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Sat, 29 Mar 2014

More police officers use more Tasers more often

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.

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Thu, 20 Mar 2014

NHS Trust attempted cover-up over massive police deployment to mental health ward

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)

2012 annual march against deaths in custody

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 Trust

The 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:

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).

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Fri, 18 Oct 2013

The sixth DNA database

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.

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Sun, 04 Aug 2013

A real public nuisance: political persecution

Book launch of 'The Queen vs Trenton Oldfield: A Prison Diary'

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.

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Mon, 22 Jul 2013

Commencement day of DNA provisions of the Protection of Freedom Act in October

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.

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Wed, 10 Jul 2013

Labelled potential terrorist

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'.

Former suspect

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Thu, 23 May 2013

1,136,000 DNA profiles and 6,341,000 samples gone, but stealth DNA database of everyone being planned

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.

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Tue, 07 May 2013

Naked citizen: CCTV and online surveillance

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).

Naked Citizen (c) ORF

The international version of the program, called Naked Citizen has just been published on YouTube:

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Repair, don't despair! Towards a better relationship with electronics

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.

Restart Party (c) Janet Gunter

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. [...]

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Tue, 23 Apr 2013

Act of terror – recording stops & searches

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.)

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Sun, 03 Feb 2013

Complaining about the police and the IPCC

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]

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We are outraged

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.

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Fri, 14 Dec 2012

Destruction of DNA samples and other material - five years in the making

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.

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Thu, 06 Dec 2012

Destruction of DNA samples and other material to start - eventually

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.

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Sat, 20 Oct 2012

Remembrance march against deaths in custody and its policing

March against deaths in custody - start of the march

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:

  1. 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.
  2. The Prisons and Probation Ombudsman should be placed on a statutory footing.
  3. 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.
  4. Officers and officials directly involved in custody deaths are suspended until investigations are completed.
  5. Immediate interviewing of officers and all officials concerned with the death
  6. Officers and officials should never be allowed to collude over their evidence and statements of fact.
  7. Full and prompt disclosure of information to the families affected.
  8. Prosecutions should automatically follow ‘unlawful killing’ verdicts at Inquests and officers responsible for those deaths should face criminal charges, even if retired.
  9. Implementation of police body cameras and cameras in all police vehicles in the interests of both the officers and the public.
  10. 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.

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Mon, 07 May 2012

Protection of Freedom Act, a step forward for DNA retention

Protections of Freedom Bill 2011

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.'

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Sun, 22 Jan 2012

Visiting London's police custody suites

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.

ICV visits in London's custody suites during the 29 months from 2009-06 to 2011-10
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 suites821,0574,834192.930,5976.315,9063.3
24/7 custody suites
528164,34823328,6486.614,8563.4
Overflow custody suites
1815995422652.81571.7
Unknown (either 24/7 or overflow)
255172681.2420.8
Closed custody suites
10823361321,6164.88512.5

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:

Detainees held in Marylebone custody suite
from September to November 2011
Arrest date Total held in Marylebone custody suite
2011-09-115
2011-09-239
2011-09-2413
2011-09-259
2011-09-3013
2011-10-0115
2011-10-0212
2011-10-078
2011-10-0815
2011-10-092
2011-10-153
2011-10-259
2011-10-262
2011-10-291
2011-11-093
2011-11-118
2011-11-131
2011-11-309
Total137

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:

Analysis of ICV visits in London's custody suites during the 29 months from 2009-06 to 2011-10
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 DagenhamFreshwarf New Build24/727/7300
Barking and DagenhamBarkingOverflow7431.3307.5143.5
Barking and DagenhamDagenhamOverflowClosed930122.51304.3612.0
BarnetColindale24/724/721213297.32,15310.11,2706.0
BarnetBarnetOverflowOverflow5531.761.261.2
BarnetWhetstoneOverflowClosed4
BexleyBexleyheath24/724/720125294.38016.43993.2
BrentKilburn50% Overflow24/71790293.14374.92763.1
BrentWembley24/724/72593293.21,04911.35896.3
BrentWembley Park (BTP)24/71018121.5100.650.3
BromleyBromley (PFI)24/724/730127294.49137.24653.7
BromleyOrpingtonOverflowOverflow80
CamdenHolborn24/724/71690293.15145.72893.2
CamdenKentish Town24/724/71190293.14344.82843.2
CamdenTottenham Court Road (BTP)24/71091293.13363.71972.2
CamdenAlbany StreetOverflowOverflow9951.8394.3293.2
CroydonCroydon24/724/714104293.67287.04484.3
CroydonSouth Norwood24/724/711103293.65605.43373.3
EalingActon24/724/722133294.61,34610.16424.8
EalingSouthall24/724/711123284.45084.13002.4
EnfieldEdmonton24/724/714222297.71,9768.96342.9
EnfieldEnfieldOverflowOverflow7623.0213.591.5
GreenwichPlumstead24/724/72499293.41,02110.35555.6
GreenwichGreenwichOverflowClosed8221.02211.0105.0
HackneyShoreditch24/724/7986263.33554.12002.3
HackneyStoke Newington24/724/716102283.67667.54884.8
HackneyHackneyOverflowOverflow51572.1342.3201.3
Hammersmith and FulhamHammersmith24/724/718431.3184.5102.5
Hammersmith and FulhamFulham24/7Overflow9961.5283.1161.8
Hammersmith and FulhamFulham Place Road (BTP)33152.2451.4260.8
Hammersmith and FulhamShepherds BushOverflowClosed9
HaringeyHornsey24/724/711112293.96275.62822.5
HaringeyTottenham24/724/77103293.65765.62722.6
HaringeyWood GreenClosed428122.330.120.1
HarrowHarrow24/724/713110293.85434.92472.2
HaveringRomford24/724/713102293.56956.83443.4
HaveringHornchurchOverflowClosed8221.094.552.5
HeathrowHeathrow Polar Park24/724/730116294.03823.32512.2
HillingdonUxbridge24/724/711120294.16575.53603.0
HillingdonWest Drayton24/724/79116294.03352.92151.9
HounslowChiswick24/724/7790273.32412.71221.4
HounslowHounslow24/724/712115294.06325.53382.9
HounslowBrentfordOverflowOverflow50
IslingtonIslington24/724/724133294.61,39210.57105.3
IslingtonBrewery Road (BTP)24/72273.1602.7261.2
IslingtonHollowayOverflowOverflow8331.041.341.3
Kensington and ChelseaChelsea24/724/781682.0452.8281.8
Kensington and ChelseaNotting Hill24/724/761682.0342.1171.1
Kensington and ChelseaKensingtonOverflowOverflow6111.011.011.0
Kingston upon ThamesKingston24/724/710112293.94153.72742.4
LambethBrixton24/724/716103293.68157.93883.8
LambethKennington24/724/7989283.23834.31992.2
LambethStreatham24/724/76101293.52642.61381.4
LewishamLewisham (PFI)24/724/73381292.81,13514.04075.0
LewishamCatfordOverflowOverflow12221.0189.073.5
MertonWimbledon24/7Closed1089263.43473.91772.0
NewhamForest Gate24/724/71590293.17027.83543.9
NewhamPlaistow24/724/71286293.05516.43414.0
NewhamWest Ham (BTP)22191.2231.0160.7
RedbridgeIlford24/724/71798293.498310.05255.4
RedbridgeBarkingsideOverflowClosed7221.073.521.0
Richmond upon ThamesRichmond24/724/752173.0512.4361.7
Richmond upon ThamesTeddington24/7Overflow5541.391.881.6
Richmond upon ThamesTwickenhamOverflowOverflow4111.000.000.0
SouthwarkPeckham24/724/71869272.66008.72934.2
SouthwarkWalworth24/724/72078292.77669.83354.3
SouthwarkSouthwarkOverflow13111.000.000.0
SuttonSutton (PFI)24/724/730126294.38576.84603.7
Tower HamletsBethnal Green24/724/7192392.61918.31145.0
Tower HamletsLimehouse24/724/7722102.2753.4462.1
Waltham ForestWaltham Forest / Leyton24/724/7300
Waltham ForestChingfordClosed1298293.46116.23733.8
WandsworthBattersea24/724/710107293.74544.22031.9
WandsworthTootingOverflowOverflow53183.9732.4421.4
WandsworthWandsworth24/7Closed1185223.94875.72212.6
WestminsterBelgravia24/724/7161061.7595.9353.5
WestminsterCharing Cross24/724/745951.89610.7586.4
WestminsterPaddington Green24/724/7141271.7675.6292.4
WestminsterEbury Bridge (BTP)24/742783.4401.5210.8
WestminsterHarrow RoadOverflowOverflow140
WestminsterMaryleboneOverflowOverflow90
WestminsterWest End CentralOverflowOverflow28331.020.710.3

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:

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Tue, 03 Jan 2012

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.

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Thu, 08 Dec 2011

Be seeing you

EyeWhen 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:

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.

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Mon, 05 Dec 2011

All your DNA are belong to us

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.

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Sun, 27 Nov 2011

British Transport Police pervert CCTV policy

CCTV

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.

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Wed, 16 Nov 2011

Question to the police authority about police provocations at peaceful march and Met's response to the 'Protecting the innocent' review on DNA retention

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):

March against deaths in custody - start of the march

‘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.

Protections of Freedom Bill 2011

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 Commissioner

Summary

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:

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).

  1. 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
  2. The circumstances in which DNA is retained and for how long (both the sample and the profile)
  3. Where their DNA samples will be stored.
  4. 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.
  5. Who has access to their DNA record and the safeguards in place to protect this information.
  6. Who has knowledge that their DNA has been taken.
  7. 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.

  1. Ensure that this agreed procedure is strictly adhered to across all MPS custody suites.
  2. 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.

  1. Individuals sampled under PACE - arrested for a recordable offence
  2. Individuals examined under Schedule 7 Terrorism Act 2012
  3. 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.

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:-

  1. Annonymisation [sic] of raw data files as opposed to the deletion of the same;
  2. CPIA provisions in respect of deletion and destruction of elimination and evidential samples and profiles within casework for use in court proceedings;
  3. Automation of PNC files to enable deletion of DNA profiles;
  4. 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.

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Thu, 10 Nov 2011

DNA database: analysis of offending figures

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:

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Sat, 29 Oct 2011

Police provocations at peaceful march against deaths in custody

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.

March against deaths in custody - start of the march

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:

It has a list of eight practical demands:

  1. 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.
  2. Officers and officials directly involved in custody deaths be suspended until investigations are completed.
  3. Immediate interviewing of officers and all officials concerned with the death.
  4. Officers and officials should never be allowed to ‘collude’ over their evidence and statements of fact.
  5. Full disclosure of information to the families.
  6. Prosecutions should automatically follow ‘unlawful killing’ verdicts at Inquests and officers responsible for those deaths should face criminal charges, even if retired.
  7. Implementation of police body cameras and cameras in all police vehicles in the interests of both the officers and the public.
  8. 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.

March against deaths in custody - police reinforcements in front of Downing Street March against deaths in custody - police opposite Downing Street

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

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Thu, 13 Oct 2011

Deaths in custody

Vigil for Sean RiggPublic 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:

Letter taped to Downing Street's gates2011 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.

Independent Custody Visitors (ICV) - MPAVisiting 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.

2553 deaths in custodyStatistical 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.

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Sun, 17 Jul 2011

Another European Court of Human Rights case about retention of innocents' DNA by UK police

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.'.

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Thu, 23 Jun 2011

Cageprisoners interview

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.

Ayesha Kazmi speaks to David Mery about his case.

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Wed, 22 Jun 2011

The London experience of DNA and the National DNA Database

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:

  1. 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
  2. The circumstances in which DNA is retained and for how long (both the sample and the profile)
  3. Where their DNA samples will be stored.
  4. 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.
  5. Who has access to their DNA record and the safeguards in place to protect this information.
  6. Who has knowledge that their DNA has been taken.
  7. 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:

  1. Agree a clear process outlining how and when DNA samples are to be taken, processed and retained within custody.
  2. Train all officers and staff responsible for taking a DNA sample to ensure the procedure is undertaken correctly.
  3. 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.
  4. Ensure that this agreed procedure is strictly adhered to across all MPS custody suites.
  5. 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.

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Wed, 15 Jun 2011

Police to keep holding on to DNA of innocents until compelled to do otherwise

Appendix 2 of the Management of Police Information (MoPI) Guidance - Step model - Retention GuidelinesThe 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.

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Sun, 12 Jun 2011

Missing CCTV footage

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.

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Wed, 18 May 2011

Retaining DNA of innocents ruled unlawful, again

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.

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Fri, 18 Mar 2011

Terrorism stop and search, plus ça change…

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.

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Sun, 13 Mar 2011

Six million DNA profiles, 1 million innocents. Still rising

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.

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Mon, 28 Feb 2011

Innocents to become less suspect

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 – indefinite
UNDER 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!

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Sun, 30 Jan 2011

Supreme Court to revisit DNA retention

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

  1. The Secretary of State must make arrangements for a National DNA Database Strategy Board to oversee the operation of the National DNA Database.
  2. 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.
  3. 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.
  4. 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.
  5. The National DNA Database Strategy Board must make an annual report to the Secretary of State about the exercise of its functions.
  6. The Secretary of State must publish the report and must lay a copy of the published report before Parliament.
  7. 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!

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Thu, 16 Dec 2010

Government owned DNA forensic lab to be closed down

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.

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Thu, 25 Nov 2010

Mobiles as reliable surrogate for people tracking

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.

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Sat, 20 Nov 2010

All 'Bout Children and DNA databases

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:

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.)

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Sat, 30 Oct 2010

Deaths in custody have to stop

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.

Letter taped to Downing Street's gates

The Rt. Hon. David Cameron MP
Prime Minister
10 Downing Street
London

30th 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:

  1. 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.
  2. Unlawful killing verdicts in Inquests are being over-turned with no recourse.
  3. Officers should not to be allowed to collude their statements of fact.
  4. Cameras need to be in all police vehicles in the interest of both the officers and the public.
  5. Immediate interviewing of police and prison officers in cases of this type.
  6. 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.
  7. There continue to be voluminous judicial reviews and legal battles with only 'no case to answer' verdicts.
  8. 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.

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Thu, 21 Oct 2010

Good reason found

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.)

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Sun, 19 Sep 2010

Police return DNA samples to teenager

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

Alan and Joshua StevensJoshua 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.

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Wed, 01 Sep 2010

Interim situation to continue a bit longer for DNA retention

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):

  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 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.

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Thu, 29 Jul 2010

An ethical and evidence-based National DNA database

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.

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Fri, 23 Jul 2010

Death. Police. Rewards.

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.

No justice, no peace

Further information:

The Ian Tomlinson Family Campaign has launched a Campaign Fighting Fund to help the Tomlinson family in its fight for justice.

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Wed, 21 Jul 2010

Adopting the Scottish approach to DNA retention

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:

  1. 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?
  2. When does the Government expect to have the new law in place?
  3. 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.
  4. Will there be a system of independent oversight to make sure that the police delete people’s records when they are supposed to?
  5. Will the Government review whether some DNA samples are being collected unnecessarily, when they are not relevant to solving the alleged crime?
  6. 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;

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Mon, 12 Jul 2010

Halting section 44 stop and search powers

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.'

Victory Flashmob – Section 44 is Dead!Innocent at New Scotland Yard (c) Peter Marshall

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.

S44 stops and searches 2005-2009S43 stops and searches 2005-2009

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?.

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Wed, 07 Jul 2010

Stopping the renewal of the 28-day pre-charge detention - coming Wednesday

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:

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.

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Wed, 16 Jun 2010

Public meeting on the National DNA Database and the use of DNA in policing

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:

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.

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Mon, 31 May 2010

Confusing capture and retention

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

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

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

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

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/y7or0

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

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

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

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

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

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

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Tue, 18 May 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prevention of Double Keying

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

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

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

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

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

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Sat, 15 May 2010

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

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

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

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

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

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

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

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Thu, 13 May 2010

Seven years with the IPCC

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

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Wed, 05 May 2010

Secret evidence never to be used in ordinary civil trials

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

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

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

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

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

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

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

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

Their Lordships commented that

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

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

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

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

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

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

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

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

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

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

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Sun, 25 Apr 2010

Erasing (another) David

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.

Erasing David

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Mon, 12 Apr 2010

'Surveillance, Politics and Civil Society' - registration details

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.

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Fri, 09 Apr 2010

Politicians and the DNA database

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.

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Wed, 07 Apr 2010

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.

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Tories accept Labour's DNA clauses, for now

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 CONTENTS

Andrews, 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.

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Wed, 31 Mar 2010

One year on and still no justice for Ian Tomlinson

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.

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Thu, 11 Feb 2010

Home Office: five equals four

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.

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Wed, 10 Feb 2010

Leafing through an IPCC case file

IPCC disclosed documents 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.

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Fri, 05 Feb 2010

Fight 'The Man' and win on Dissident Island Radio

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:

Dissident Island Radio

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.

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Mon, 25 Jan 2010

PACE Review web page stuck in July 2009

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.

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Thu, 21 Jan 2010

If you've got a camera, use it

Mass photo gathering poster (Smithfiled Market) Life's too short to be controlled

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.)

I am a photographer, not a terrorist! launch party

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.

Photographying filming photographying... NoBorders

First published on 2010-01-21; last updated on 2010-01-27.

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Tue, 19 Jan 2010

Home Affairs Committee collecting DNA... stories

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.

Jonathan Leighton & Greg Hands giving evidence at
 the Home Affairs CommitteeGreg 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.

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Sat, 16 Jan 2010

GeneWatch UK on the National DNA Database

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:

  1. 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).
  2. 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.

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Mon, 11 Jan 2010

Close Guantánamo Bay; release all innocents

(c)
 Peter MarshallThe 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.

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Wed, 06 Jan 2010

Sorry Affairs Committee

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:

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:

Chris Sims and Gary Pugh

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

Alan Campbell and his minders

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.

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Sun, 03 Jan 2010

Home Office still wants your DNA profile, and your PNC record

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:

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.

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Fri, 01 Jan 2010

Home Office gets DNA database funding priorities wrong

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.

Crimes with a scene-subject match Detections of crimes in which a DNA match was available
(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.

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Mon, 14 Dec 2009

Interviewed by the Londonist

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).

The London Blogger Interviews #34 Gizmonaut @ The Londonist

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Mon, 07 Dec 2009

A visit to SIAC - U to remain in jail

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.

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Tue, 01 Dec 2009

Demanding justice for Ian Tomlinson

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.

Candlelight vigil for Ian Tomlinson

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.

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Tue, 24 Nov 2009

Moving on for the de Menezes family

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.

Stockwell - remembering Jean Charles de Menezes

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Mon, 09 Nov 2009

Strasbourg finds Home Office's DNA retention plans lacking

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.

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Sat, 31 Oct 2009

Calling for an end to the use of secret evidence

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.)

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Fri, 30 Oct 2009

Ultimatum issued to the ACPO to change its guidance on the retention of DNA

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'.

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Sun, 25 Oct 2009

Shooting the principles of policing in the foot

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.

This much is true @ Theatre503 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.

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National DNA Database, more and less of the same

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:

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.

DNA matches and detections
('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!

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Sat, 17 Oct 2009

Some recent DNA-related news

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.

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Fri, 09 Oct 2009

More than 500 responses to the DNA database consultation

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.)

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Thu, 08 Oct 2009

Exposing MI5 blackmail

[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.’

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Wed, 23 Sep 2009

Metropolitan Police Service apologises for unlawful arrest

Police apology

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 in