MPs realise it's exceptional for innocents to get their DNA removed from the NDNAD and vote not to do anything about it
by David Mery
Parliament overturned by 277 votes to 209 a Lords amendment
to the Counter Terrorism Bill 2008 which aimed 'to try to spark a
national debate about the retention of samples and to inform the public
about what information is being held on them'.
Several MPs told stories of their constituents fighting the system in
attempting to get their DNA off the National DNA Database (NDNAD). Reading through
the several interventions, I find surprising how poorly briefed many
MPs are on this very serious issue affecting millions
of individuals in the UK.
House
of Commons debates, Wednesday, 19 November 2008 – Counter-Terrorism BillDamian
Green (Shadow Minister, Home Affairs; Ashford, Conservative)
[...] The changes are necessary because of the worrying nature of the
guidelines under which we operate. They are produced for the police,
and go under the spectacularly opaque title “Retention
guidelines for nominal records of the police national computer“,
which could almost have been designed to stop anyone finding out what
the guidelines are for the use of DNA—a rather important term
that the document carefully refuses to mention in its title. Frankly,
the guidelines are draconian. They state:“Chief Officers have the discretion to authorise the deletion
of any specific data entry on the PNC 'owned' by them.”It is interesting that when a person's data are entered on to
the PNC, they are owned by the police. The guidelines continue:“They are also responsible for the authorisation of the destruction
of DNA and fingerprints associated with that specific entry. It is
suggested that this discretion should only be exercised in exceptional
cases.”According to the guidelines, the discretion to destroy the information
will rarely be exercised, which in itself is enough to raise eyebrows.
The guidelines later state:“In the first instance applicants should be sent a letter informing
them that the samples and associated PNC record are lawfully held and
that their request for deletion/destruction is refused”.Therefore, the standard guideline is, “Just say no, you can't have
your records deleted.” The last paragraph of this part of the guidelines
states:“It is not recommended that any proactive exercise is
undertaken to determine potentially exceptional cases”.The police are therefore being told in their guidelines first that
everything must be exceptional, and secondly that their first and
standard response should be to say no. Indeed, elsewhere in the
guidelines—I shall not detain the House by reading this
out—is the standard template letter of refusal, in case the
police cannot work out how to write a refusal letter. On top of that,
they are instructed not to make any effort to tell people what they can
do or what criteria they might have to fulfil to get their records out
of the system. That approach is not satisfactory.Compounding that, an example is given for those who want to know what
an “exceptional case” is. It is the only such example in a 236-page
document of what might be an exception. I shall quote it in full:“For example, where a dead body is found in a multi-occupancy dwelling
and the cause of death is not immediately obvious. All the occupants
are arrested on suspicion of murder pending the outcome of a post
mortem. All arrested persons are detained at the local police station
and samples taken. It later transpires that the deceased person died of
natural causes. No offence therefore exists, and all persons are
released from custody.”That is the only example given in the guidelines of an
allowable
exception. The House will recognise that that is an absurdity and that
the guidelines are clearly not an acceptable way in which to proceed.
This is a good summing up of the current situation (follow
these links for a flowchart
of the whole process and more details on getting
off the NDNAD), but let's take a step back. These guidelines
are issued by the Association of Chief of Police Officers (ACPO), a
private company (hence
not subject to the Freedom
of Information Act). Should guidelines affecting so many individuals so intimately be
decided by a private company behind closed doors?
Keith
Vaz (Leicester East, Labour)
I do not disagree with anything that the hon. and learned Gentleman
says. We do need a proper system, and the present system is totally
inadequate. At the very least, if we had letters in reply to reasonable
requests, providing information to the person who has asked for his or
her profile to be removed, I could understand it. As it is, this is the
first time that I have heard the guidelines as they were read out by
the hon. Member for Ashford. I did not realise that although everyone
is told that they have the right to have their DNA removed, it is only
in very, very exceptional circumstances that it will be so removed.
[emphasis added.] I am minded to vote for the Opposition's amendment, unless the Minister
gives a clear sign to the House that the Government will radically
alter the current guidelines on removal.
These retention guidelines replaced the 'ACPO General Rules
for Criminal Record Weeding on Police Systems' on 2006-03-31 (according
to the intro of version 1.3). They are the document
describing what the Police are doing with our DNA. If you take out the
cover page, blank pages, acknowledgment and the long lists offences,
it's only 14 pages long of principles, guidelines, letter examples and
flowcharts. (Most of the 236 pages, as mentioned above by Damian Green, is taken
by Appendix 3, three long lists of offences.)
How come an MP attending a debate on amendments concerning the
NDNAD has not read these 14 pages or been briefed about them? This is
even more surprising for Keith
Vaz considering he is the Chairman of the Home Affairs
Committee and this Committee issued only last May a report including recommendations
specifically about retention of the DNA profiles of innocents.
David
Jones (Shadow Minister, Wales; Clwyd West, Conservative)
[...] In response to my request, I received a letter from the chief
constable of North Wales police. The letter broadly followed the
template that my hon. Friend the Member for Ashford
mentioned—template A in appendix 2 to the ACPO guidelines. It
followed the guidelines almost word for word, except that at one
particular juncture the chief constable decided to ski off-piste. He said:“The Criminal Justice and Police Act 2001 amended the Police and
Criminal Evidence Act 1984, providing the police in England and Wales
with the power to retain DNA samples and fingerprints, relating to
persons following acquittal at court or other discontinuance of a case.I must admit to being personally surprised by this decision and I
am not sure parliament fully understood the implications of its decision.
However, the Act is clear enough and I am bound to act by its provisions.”In other words, it would appear that the chief constable of North Wales
police decided to enter the debate about the retention of DNA ahead of
the House. He clearly thinks that the current legislation is nonsense.
His letter continued:“If I were to exercise my discretion in this case, then I would have to
exercise my discretion in similar cases, thus it would not be a rarity.”There is, therefore, almost no circumstance in which a chief constable
will exercise that discretion, which is a lamentable state of affairs.
Clearly, the present arrangements are opaque and unsatisfactory.
Section
82 of the CJA 2001 amends PACE 1984 so that 'samples may be
retained after they have fulfilled the purposes for which they were
taken'. It is not an obligation and chiefs of police forces can legally
exercise their discretion in each case. Now the ACPO guidelines
effectively give them a framework where exercising their discretion
should be done only exceptionally: 'They have the discretion in
exceptional circumstances, to authorise the deletion of any conviction,
penalty notice for disorder, acquittal or arrest histories, “owned” by
them'. Chiefs of Police for England and Wales forces exercised their
discretion on average
222 times per year over 2005-2007.
Vernon
Coaker (Minister of State (Policing, Crime & Security), Home
Office; Gedling, Labour)
[...] The text of the amendment would require the Secretary of State
to issue guidance relevant to all agencies holding DNA and fingerprint
samples on the operation of their retention, use and destruction of
fingerprints and samples. Let me say why the guidelines contained in
the amendment are unnecessary. The rights of individuals from whom
fingerprints and samples are taken by the police under PACE or under
the Terrorism Act 2000 are already contained in guidance, including
PACE codes C and D, the ACPO retention guidelines for nominal records
on the police national computer, and guidance on subject access
requests. However, let me say to my right hon. Friend and other hon.
Members that I admit there is work to be done to publicise those rights
more widely.I undertake to work with the police to bring together the current
guidelines covering the matters raised in the amendment, and to publish
them more widely. The guidelines will need to be reviewed in the light
of the outcome of the S and Marper case, and a PACE review is currently
under way. However, I give my right hon. Friend an undertaking to
ensure that the points that he and others have made are fed into the PACE
guidelines review, so that we can improve the process.
Publicising the existing guidelines – especially among MPs -
would be a good thing, but what is being asked by many including a
majority of Lords, the NDNAD Ethics Group, the Human
Genetics Commission, the Nuffield Bioethics Council, GeneWatch UK and
Justice is a public debate with one possible outcome being
to ensure that DNA profiles of innocents are not retained on the crime-related
intelligence database that is the NDNAD.
Coincidentally, on the very same day, the Metropolitan Police
Service Special Crime Directorate 12 (SCD12) issued version .2 of its 'Exceptional
Case Requests – Consideration for the Removal of DNA, Fingerprints and
PNC Records'. As its previous
version (issued on 2008-06-27), these guidelines closely
follow the ACPO ones. Slightly more interesting is the 'Roles and
Responsibilities' section:
The Exceptional Cases Unit will process any request by
preparing a report for the Commander for Operational Information,
Intelligence and Learning for their consideration. This report will
consist of information supplied by the applicant and the officer in
charge of the case [or in some circumstances, the Criminal Justice Unit
Manager]. The Association of Chief Police Officers [ACPO] designated
Criminal Records Office will be contacted for their advice and
recommendation.
So in the case of the MPS, the ACRO – an offshoot of a private
company – will be consulted as to whether the case is exceptional
enough that they don't feel they can refuse deletion.
If the decision to delete has been made, the Exceptional Cases Unit
will contact the respective departments and agencies to ensure that the
DNA, fingerprints and PNC records are deleted / destroyed accordingly.
The Exceptional Cases Unit will send a response to the applicant
notifying them of the decision of the Commander for Operational
Information, Intelligence and Learning on behalf of the Commissioner. [...]
This is still very far from the process map SCD12
promised.
Which 'respective departments and agencies'?
Does that include the private labs holding the DNA samples?
How is the
deletion of electronic records and destruction of physical samples
tracked? etc.
This still doesn't give much confidence that, in the few
cases where the chief of police exercise his or her discretion, the
samples and records are always properly removed.
There's more hope of progress and change in the retention of
DNA material being pushed by institutions such as the European Court of
Human Rights, the NDNAD Ethics Group, the Human
Genetics Commission and other bioethics and human rights organisation
than by either Parliament or the Police.
Despite every MP being sent a copy of '1984' in a campaign organised by the Libertarian Party UK, they either still don't get it, or your nightmares are really about to begin.
Another unjust proposal in the Counter Terrorism Bill is to
covertly collect DNA samplings and retain DNA profiles in a
‘CT [counter terrorism] DNA database’ – distinct from the
National DNA Database (NDNAD) and most likely illegal unless this Bill
passes. (DNA profiles of innocents were retained on the NDNAD before it
became lawful to do so.). Spy
Blog commented in a post analysing the Lords
debate on this section: ‘That is an extremely
dangerous power, to covertly enter
premises and steal a DNA sample, without the person's consent or
knowledge, and then to analyse it, again without consent. This must
only ever be done under the most exceptional circumstances, under the
strictest, independent safeguards, and with provisions for correcting
the inevitable mistakes, none of which exist in this Bill.’
Lord West recognises that such provision in the Counter Terrorism
Bill is not intended to be restricted to counter terrorism:
[T]he provision applies to samples otherwise lawfully obtained
in the interests of national security for the prevention/detection of
crime, the investigation of an offence, the conduct of a prosecution or
for purposes related to the identification of a deceased. Such latter
material might include material obtained during a criminal
investigation other than through the exercise of covert
powers—for example, during a search, from a crime scene or
lawfully provided by a body other than another law enforcement
authority, perhaps from the intelligence services of another state. (TheyWorkForYou)
Measures buried in a bill will be used to the extent described
in the text of the bill. Not all measures in a bill against terrorism
have much effect to make us all safer from terrorist actions, especially when we know that they are going to be used primarily not on terror suspects, but on innocent members of the public.
The
Libertarian
Party
is the only party that has promised to put an end to these databases,
ID Cards, the NIR, the NDNAD and NPfIT in particular, and ending the
Politics of
Fear by repealing many of the draconian laws enacted over the past
10
years.
Hattip David Mery
