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!