Human Rights are not binary; Human Rights Policy is not about the case if an individual has them or is denied them. We instinctively know that with Human Rights it’s usually about finding the right balance between some basic individual rights like privacy as opposed to competing rights of groups which are often about security.
The police operate in this precarious field of competing tensions. This is why the Justice system is often represented by a blind folded lady holding a sword and a pair of scales. But scales tend to flip quite dramatically if overloaded on one side or the other. It may be better to think of human rights in terms of some form of pressure gauge. We have all seen films where some heroic captain saves the day, by telling his engine room to temporarily go in the red. Sometimes such macho behaviour saves the day. At other times ignoring warning bells can mean people get unnecessarily hurt.
To protect Human Rights we have to draw some lines in the sand. Again I make the analogy deliberately because when a security storm breaks loose, a line in the sand can be blurred and has to be redrawn from time to time to remember were it is supposed to be.
Police Complaints as Indicator of Human Rights being under police pressure. How does Suffolk fare?
Criminals don’t like the police like Turkeys don’t like Christmas. Once convicted, they generally have not much to gain from complaining about their arrest. When innocents get arrested however, they tend to be much more vociferous about their treatment. If such complaints are not dealt with properly by the police, to the already aggrieved this can feel like adding insult to injury. According to a recent article in the Telegraph the personal details of 15 million people, a quarter of the population of Britain will be held on various police databases. The Police National Database launched in 2012 holds the records up to six million apparently innocent people. This violates several data protection principles. To many this feels like Big Brother out of control.
The number of complaints a police force like Suffolk Constabulary receives from the public each year and the percentage upheld by the Independent Police Complaints Commission (IPCC) is a Key Performance Indicator (KPI) on the state of Human Rights. Nick Hardwick, who was the first Chair of the IPCC from 2002 to 2010, said he hoped that Police and Crime Commissioners (PCCs) would look at that data and hold Chief Constables to account for the number of complaints, the number of overturned recording decisions and the number of appeals upheld. The IPCC could play an important role in helping PCCs to interpret its statistics and develop actions for improvement he said to a Home Office Select Committe.
Nationally public confidence in the police has been shaken by recent events: Operation Yewtree, Operation Alice, the Hillsborough Inquiry, Operation Elveden and Operation Pallial all have cast doubt on police integrity and competence.
This corresponds to my personal experience in the way Ipswich police handled my dispute with the husband of a police employee. If police officers pretend to be civilians in Downing Street, why could not the same happen in an Ipswich park?
Role of the Independent police Complaints Commission(IPCC)
The unfavourable Police headlines are accompanied with a corresponding rise in complaints made against the police by the general public and in turn by the number of such complaints upheld by the IPCC. In percentage terms Suffolk Constabulary with 46% of IPCC complaints upheld fares much worse than the national average of 38% 
Evidence submitted to the same Select Committee highlighted, that although police forces like Suffolk Constabulary have a legal duty to comply with IPCC directions and Statutory guidelines, there appears to be absolutely no enforcement, or enforcement mechanism. It is clear in my case study, that our Chief Constable knows this and is exploiting the system. Instead of reinvestigating my counter complaint as suggested by the IPCC, he sends it to Norfolk  for a so called ‘independent’ review.
Note: This clearly is a practice that has to stop in view of the evident collaboration between Suffolk Constabulary and Norfolk Constabulary. Note shared letterhead!
Recent High profile ECtHR and Supreme Court cases
Some of complaints make it all the way to the Court of Human Rights in Strasbourg (ECtHR), an organisation the UK signed up to by treaty. Note that the UK does not have a ‘Bill of Rights’ to speak of, not one suitable for the 21st century anyway. Most notably the 2008 case of Marper and S.  and the 2012 case of M.M. v. the United Kingdom  held that the police had got the balance between the right to a private life of individuals and protecting the general public from crime completely wrong. Note that the Informational Commissioner (IC) has pretty much said the same to the Chief Constable of Humberside Police and others in a highly controversial appeal . Although the police won this on appeal it didn’t do them any favours and parliament is now discussing proposed legislation much more in line with the IC’s thinking.
In reaction to a changing public mood and spurred on by the UK Supreme Court , the coalition government introduced the Protections of Freedoms ACT (PoFA) enacted in May 2012. Also in November 2012 we saw elections for the newly created post of Police and Crime Commissioners (PCC) for England and Wales. Together these measures were created to make the police more answerable to the democratic will of the people of England, Wales and Northern Ireland. Respect for Human Rights is at the core of this.
The remainder of this paper will mainly address Article 8 Privacy issues
The reaction of the Association of Chief Police Officers (ACPO) to Human Rights criticism.
The response of ACPO to recent Human Rights Court rulings that have gone against them with regards to the retention of the DNA of innocents and the retention of minor PNC records has been compared by Shami Chakrabarti, director of civil rights group Liberty, as follows: “This isn’t necessarily a complete two fingers to the court of human rights but it comes pretty close. A BigBrotherWatch report  of June on the same subject solicited headlines like: “UK Police Clueless on DNA Databases” In the same report’s key findings Suffolk Constabulary is held out as a poor example.
Suffolk Constabulary collected 17,465 samples and has deleted only 4.
After the Marper and S. ruling in December 2008 in Strasbourg Suffolk Constabulary added 17,465 further profiles to NDNAD of which they now have to delete approximately 8,400 innocents by September. And whereas BigBrotherWatch Freedom of Information requests revealed his colleagues in Cambridge already deleted 1687 of such illegally held records in anticipation, Chief Constable Ash managed just four in the same period, or now including mine possibly five it seems.
How did this mess get started?
In short, a new section inserted by Criminal Justice Act 2003 slipped in a paragraph that a non-intimate sample may be taken from an individual without the appropriate consent if “two conditions” are satisfied. The conditions are listed as firstly, the individual is in “police detention in consequence of his arrest for a recordable offence” and secondly, a sample of the same type and from the same part of the body has not already been taken, or if it has been taken, it proved insufficient. The exhaustive and complete nature of the two conditions would suggest that in the latter case the oversight of the inspector is not required to take the sample without consent, even though the individual has only been arrested and not charged.
When answering a Suffolk resident’s request for erasure of his/her DNA profile and associated record of arrest, police lawyers like Suffolk Council’s Timothy Earl, has argued in the past, that somehow the Chief Constable is ‘bound’ by the decision of the house of lords in R (Marper) v Chief Constable of South Yorkshire Police  1 WLR 2196 to hang onto all this DNA and associated records for dear life.
This is a gross distortion of the law as it is written. Especially take note of the word ‘may’ in the text of the law. It doesn’t say ‘must’. There was never and there isn’t to this date an obligation for the police to take the DNA of anyone who for example suffers the indignity of being falsely accused of a recordable offence. But because the law makers used the word ‘may’ this gives the police a fig leave of an excuse to violate Human Rights and Data Protection Principles ‘at will’. With hindsight this sloppy wording could be compared to giving vampires the key to the NHS blood bank. The police was quick to abuse their new found powers so that they are now more familiar with the much abused caution quoting ‘necessity for a prompt arrest’ than ‘anything you say may be given as evidence’ when arresting people to get their hands on more DNA. Especially young black man  bear the brunt of this DNA collection mania with 77% finding themselves on NDAD. A huge Racial bias!
The use of the power [of arrest] must still be fully justified under Human Rights laws and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. Arrest must never be used simply because it can be used. Absence of justification for exercising the powers of arrest may lead to challenges should the case proceed to court. When the power of arrest is exercised it is essential that it is exercised in a non-discriminatory and proportionate manner.
There is a second use of the word ‘may’ involved. This one is contained in Section 64(1A) of PACE which was enacted by section 82 of the Criminal Justice and Police Act 2001. It is still in force. It basically says: DNA samples ‘may’ be retained after they have fulfilled the purposes for which they were taken. Note again this does not confer ‘an obligation’ on the police to do so, but again they think its lets them off the hook and that they don’t have to justify themselves in relation to the breaking of data protection principles or human rights act provisions. In other words: It gives them a fig leaf.
The 2011 Supreme Court ruling took this fig leaf away leaving the police exposed, especially in the way they condemned the Association of Chief Police Officers for drawing up ‘exceptional’ guidelines which are unlawful because they are incompatible with article 8 of the ECHR. Unfortunately the Supreme Court ruling granted no other relief. This had to wait for the enactment of the Protections of Freedoms Act in May 2012. Again, after much dragging of ACPO heals, this will finally receive commencement orders as late as September 2013.
If you have nothing to hide, you have nothing to fear?
Many press articles about Britain’s discredited National DNA data base (NDNAD) have appeared since the Marper and S. ruling. Reading the ‘comments’ section below such articles, you will always see the unwavering support of the usual ‘nothing to hide – nothing to fear’ brigade of do-gooders. Have these people had no history lessons? What of the millions slaughtered by Stalin and Hitler? Just have a look at what the Nazi invaders did with the helpful ‘stippenkaart’ the Amsterdam civic administration left them at the start of World War II: Dots on a map showing where they could easily round up the Jews. And all done with originally good intentions to build schools for a religious minority.
Illustration from the ‘Resistance museum’ about war time Amsterdam
Illustration from the ‘Resistance museum’ about war time Amsterdam where misguided information collected by the municipality aided the Nazi’s in rounding up innocent Jews.
Note also the emerging pattern of the DNA lobby, world wide, to gradually shift from boasting how many ‘extra crimes’ expanded DNA data bases would solve (which it won’t), towards claiming, like the National Policing Improvement Authority (NPIA DNA data base and me (bullet 3) does in the UK, that “Every second, the DNA data base eliminates thousands as suspects to crimes.” Well big deal! GeneWatch among others have thoroughly debunked figures bandied about as propaganda by the DNA lobby in the Association of Chief Police Officers (ACPO). All these illegally held records seem to do, is clog up the system and create false positives! This is a basic law of statistics when it comes to naturally occurring things like matching DNA profiles. If you don’t believe me just read the WikiPedia article on the birthday paradox. This naturally occurring phenomenon is especially problematic for certain ethnic groups in society. Researchers at the Universities of Washington and California at Berkeley show that false familial identification may be more likely for individuals with particular genetic backgrounds; for example, in the USA, those of Asian or Native American descent.
Recently even a heavy weight publication like ‘The Economist ‘weighed in with cautionary arguments. It seems DNA profiling and analysis is not as infallible as our DNA lobbyists would have us all believe: Forensic lab staff may “subliminally interpreted ambiguous information in a way helpful to the prosecution.” That is, if the labs aren’t shut down through lack of funding in a further bizarre twist to this sorry saga.
On February 8th, 2013 the BBC reported that the Home Office select committee hearing evidence on the state of UK forensic science was told by expert witnesses that “[The] UK is currently locked into outdated technology that is more than 10 years old.” and “When you start to combine and compare very large data-sets within and between countries, [the current UK system of] seven markers might not be enough to exclude adventitious matches.” In other words chances of false positives implicating innocent citizens is now a realistic prospect further endangering UK Human Rights.
Deborah Orr, columnist with the Independent newspaper was even more direct in her comments. In an article ‘A lazy and prejudiced approach to crime’ she wrote: “A society in which the police sit around, waiting for crimes to be committed that would fit the profile of their ever-growing pool of suspects if only they weren’t too busy taking DNA from as many people as they could to do a scene of crime check, is just a lazy, dumb and prejudiced one.”
Cold statistics do not bear out any of the exaggerated claims by politicians like shadow Home Secretary Yvette Cooper. The present home office minister Lord Henley put people like her in their place when he remarked in the House of Lords: “Since 2001, more than 4 million people have been added to the DNA database, yet despite that the number of DNA detections has fallen from 33,000 to just over 26,000 in 2009-10. There has been a vast growth in the hoarding of people’s DNA but a decline in the number of convictions. That is an important thing to remember”…
Is collecting DNA from innocents a good use of scarce police resources?
At a reported £40 a pop, the fact that Suffolk Constabulary now has to delete in excess of 8,400 DNA profiles of innocents shows an immediate waste of £336,000.
This money could have been better spent forensically investigating more crime scenes (only a tiny minority currently are) and not shutting down crime labs like the FSS, our national centre of forensic excellence which fictionally we all came to admire on TV series like ‘Silent Witness’.
After commencement orders for the Protections of Freedoms Act will finally be given, nationally substantial savings will be achieved by no longer hoarding six million DNA test tubes in huge banks of freezers. The rear guard New Labour and ACPO action being fought to prevent this from happening, is just a sign of these zealots being sore losers. Why has Chief Constable Ash only erased Mr Lasance’s DNA in November 2012 after filling volumes of files with previous refusal letters?
A Home office committee heard from two expert mediators4, who suggested that substantial cost-savings could be achieved at the same time as increasing public satisfaction with the Police by applying mediation and restorative justice techniques to these kinds of complaints against Article 8 violations by the police. That means saying sorry for mistakes and Human Rights violations early in the process, rather than fighting IPCC directions tooth and nail. Nobody respects sore losers!
What is the impact on Community Policing Initiatives?
Tim Passmore quote: “I believe that neighbourhood policing is the cornerstone of policing” and “Treatment of victims is central to building public trust and confidence in policing. Victims will be more confident in policing if they feel their case has been properly dealt with.” Surely this applies as much to victims of crime as victims of police incompetence and corruption. Nobody expects the police never to make a mistake. Only by staying firmly behind a station desk could police mistakes be 100% avoided.
The problem with the policy of the last ten years; of taking DNA first and asking questions later; is the detrimental effect it has had on community policing initiatives.
No wonder arrested people in Suffolk are nowadays more familiar with a police officer mumbling the words ‘necessity for a prompt arrest’ rather than the often quoted ‘anything you say may be given in evidence and can be held against you in a court of law’. By mumbling these ACPO weasel words a police officer can throw pages of caution in the wind as spelled out in the Police and Criminal evidence Act. After all you cannot informally ask a community member ‘what seems to be the problem Sir?’ and then afterwards ask: “IS it OK to stick a Q-tip in your face Sir?”
The PCC also said: “I am directly accountable to the electorate and I intend to remain accessible and accountable to members of the public who will be able to contact me directly.” But he seems to think that refusing to erase a record of arrest along with illegally held DNA profiles and samples is just ‘an operational matter for the police’.
Lord Henley  informed parliament of a now forgotten ACPO promise in this respect:
As your Lordships may be aware, the Association of Chief Police Officers has already issued guidance to forces in the light of the Supreme Court judgment earlier this year in the case of GC & C v the Commissioner of Police of the Metropolis. ACPO issued a letter on 16 June to chief officers which said that,
“if the biometric data is deleted or destroyed, then there is no need-and therefore no justification-for the retention of the arrest record on the Police National Computer. Therefore, if the biometric data is to be deleted or destroyed, then so must be the arrest record on the PNC”.