Even before the events of 9/11 and 7/7, laws in the UK were being strengthened in the fight against crime. The terrorist attacks of 2001 and 2005 raised the spectre and threat of terrorism and in response a raft of further laws have been introduced and enforced at ground level to protect our society. Logic suggests such actions are common sense and represent a reasonable approach, however is this the full story?

Anti-Terror Legislation & other measures

The Home Office understandably wants to put a positive spin on anti-terrorism legislation, explaining the strategy and even highlighting independent reviews on their Government website to give the impression of openness and consultation. There have been occasional requests for anti-terror legislation to be further strengthened, calls the Government have answered. The Guardian newspaper website explains the history of current legislation.

There have been several amendments to further increase powers since the Terrorism Act 2000; however it was the Anti-terrorism, Crime and Security Act 2001 that indicated that this legislation wasn’t solely for the use against terrorist activities. Whilst it focuses on terrorism, the legislation also seeks to freeze the assets of criminals and have access to information recorded by schools, hospitals and other public bodies to assist with criminal and terrorist investigations. The Act therefore insinuates that it is dealing with serious criminal activity, organised criminals and terrorism.

So how has the legislation been implemented on the ground? Undoubtedly there have been legitimate operations that have identified and prosecuted individuals that are intent on causing atrocities, however there have been mistakes and unlawful arrests. Concerns have been raised about the police approach to operations, particularly as the successful prosecution to arrest ratio is so appallingly low. To be fair some individuals that were never convicted or where charges were never brought or withdrawn may still have dubious intentions, however the drafting and implementation of anti-terror or alternative powers by the State or public bodies for investigative purposes could be regarded as flexible.

Anti-terror or RIPA Legislation has been used by Derby council to identify noisy children, by Poole council to investigate the illegal farming of shellfish in Poole Harbour, and even by Croydon council to identify who was illegally pruning a tree. Further examples can be found elsewhere including identifying a graffiti vandal (arrest supported with reservations about the use of legislation by the Tory MP for South West Devon) and a further 10,000 examples of the use of anti-terror legislation by local authorities in 2007.

This has lead to criticisms that lawmakers have allowed local authorities to utilise legislation that was clearly drafted to target major crime and terrorism to snoop, sometimes disproportionately or without reasonable justification. Further calls have been made to compensate victims of unfair snooping and even apply restrictions to council powers.

One fundamental right within a democracy must be the right to peaceful protest, yet there have also been accusations that anti-terror legislation has been used to prohibit or break up such protests. Protesters consequently feel that the authorities have no inclination to apply the law correctly and protect democracy. This is an ongoing issue and it seems that it’s only the Liberal Democrats that are current voicing concerns within the House of Commons.

The DNA Database

Take a look at the Genewatch website for a history lesson about the introduction of DNA as a crime fighting tool. Legislation has been extended throughout the past decade and today allows police to collect samples from all persons taken to a Police station as part of an enquiry following arrest. It also allows samples to be recorded indefinitely regardless of whether a person was successfully prosecuted, found not guilty or questioned following arrest but never charged with any offence.

A legal challenge funded by Liberty at the European Court of Human Rights in Strasbourg declared in December 2008 that the indefinite recording of DNA data breached human rights. The immediate reaction from the UK Government was that this ruling would adversely affect criminal investigations, however it has prompted suggestions that samples taken from those not charged or found guilty will be held on file for six years. The Home Office has instructed Chief Constables that police forces should continue to add DNA profiles as the “retention policy remained unchanged”.

When any amendments do eventually become law is anyone guess. However concerns have been raised that the Government it trying to ’steam-roller’ any changes through parliament without any debate including plans to hold DNA for up to 12 years. Some critics have commented if Government must have a retention policy, samples should be retained for 3-5 years, based upon the Scottish legal system. Regardless of the length of time, the need for parliamentary process is key in a democratic State.

Readers should be aware that in December 2000 the House of Lords ruled that unlawfully held DNA samples can be used in evidence however police could not deliberately store samples of those found not guilty. Legislation has since changed and I am unable to confirm if the Strasbourg ruling has any implications upon this decision. If the Law Lords rules does still apply, might there be a danger that the state retains DNA ‘by mistake’ as a matter of course knowing that it will be admissible in court?

The Home Office website justifies why DNA evidence is useful and it is widely acknowledged that the National DNA Database (NDNAD) is by far the largest in the world (the US is 5 years behind UK when it comes to recording DNA samples of its citizens). The UK has given access to DNA samples to the FBI, Europe, and to 3rd party organisations that the NDNAD Strategy Board felt that “authorised research purposes demonstrating clear potential operational benefit to the police in terms of detecting and solving crime”. Jenny Willott from the Liberal Democrats challenged this on the grounds of ethnic profiling research.

The National Police Improvement Agency announces successful prosecutions using DNA technology and Government documents introduce DNA technology in ways that imply an almost infallible technique. The Parliamentary Office of Science and Technology Postnote from February 2006 states that the chances of a match are slightly less that 1 in 1 billion as well as commenting:

“to date, there have been no chance matches between full SGM+ profiles from unrelated individuals”.

Full SGM+ profiles, the term that the Parliamentary report uses, represents the perfect DNA sample using the current DNA profiling technique. However the use of this phrase fails to give an accurate impression of many samples taken from crime scenes. In the UK, a DNA sample is measured in 10 loci/markers and many samples collected at either the scene of a crime or covertly contain only partial data (LCN or Low Copy Number profiles) resulting in multiple partial matches. There must be a danger that in time someone will be wrongly convicted based upon based upon the perceived strength of partial match, something that the State does not currently seem to acknowledge. In addition there’s also the potential danger of DNA samples being contaminated when collected or processed.

Privacy International challenges the concept that DNA evidence is almost infallible in an online article entitled DNA Databases and Evidence published in August 2004. Under the heading Genetic Identification it commented:

“in Britain, a DNA match between evidence left at the scene of a robbery and an individual who had already been entered into that country’s DNA database turned out to be false despite calculated odds of 37 million to one that a false match would occur”.

The quoted improbability or likelihood of a DNA sample to be mismatched against an innocent individual is also being questioned by scientists. Page 22 of a report produced by Genewatch UK called The Police National DNA Database: Balancing Crime Detection, Human Rights and Privacy gives two examples of cases in America where innocent persons spend a collective total of 9 years in prison having been incorrectly convicted of rape as a result of DNA evidence.

Of course the argument regarding the accuracy of DNA needs to be balanced against the stone cold fact that this technology is a useful weapon against crime. My question though is whether the general public is being made aware of the full honest truth (the benefits as well as the risks) by the State, rather than by other organisations, be they pressure groups, lawyers or scientists?

Despite the growing number of samples collected to date (currently 5.2% of the UK population according to the Home Office website), the press has reported that the number of crimes that have been solved through the use of DNA evidence is falling. Additionally there are at least 100,000 erroneous DNA records on the database, meaning that DNA samples are incorrectly linked to other persons simply due to mistakes being made when entering the samples onto the system. Back in August 2007 The Independent newspaper reported that the Government was admitting that as many as 500,000 DNA records might be misspelt or be linked to false or inaccurate information.

Many view the Government’s actions as a clear intention to collect the DNA samples of the entire UK population, or have sufficient samples to encompass the entire UK population. There have still been calls by police to extend current legislation even further so that samples are collected for minor offences such as dropping litter or breaking the speed limit. Although the Government has rejected any notion that DNA is being collected by stealth, recent news reports claim that police are making arrests with the aim of recording as many DNA samples as possible; even those acting in a honest manner are now arrested.

The Guardian newspaper hosts daily podcasts and on 27 November the DNA Database was discussed. The podcast started by examining the apparent biased nature of sampling amongst ethnic sections of the community. The Association of Chief Police Officers were invited to take part but declined citing that no-one was available. Instead they submitted a statement that was read out. They’re decision not to take part may have been as a result of other influences (e.g. Home Office). It may appear to some that an apparent unwillingness to openly discuss and allay fears indicates that the State really has something to hide, or are intent on being unaccountable for their actions, at least to the general public.

Websites such as Genewatch give advice on how to remove a DNA profile from the NDNAD by appealing to the police force concerned. Articles published in the press on New Years Eve suggest that the success of these requests are varied, without any clear policy in place. What is concerning though, is that there are proposals afoot in the recent Queen’s Speech to allow persons whose DNA has been taken to apply to the Chief Constable of a police force for their DNA to be removed… at a cost of £200 per application. Could this be a means of limiting requests in order to retain as many DNA profiles as possible?

It must also be pointed out that despite challenging the Government in Strasbourg, Liberty are not against the use of DNA technology by the judicial system. They have stated we believe that the human rights principles of necessity and proportionality should place limits on DNA retention. The significant value of DNA retention as an intelligence and evidence tool must be balanced against the incredibly intimate nature of material that reveals so much more than the identity of the person profiled.

An Apology

Apologies for the length of the article, but I could have increased the scope further; from revelations about WMD & their use within 45 minutes through to ID Cards and internal reports the Government allegedly wanted to keep secret.

I hope the above (including hyperlinks) gives a flavour of how the focus of legislation has changed, the manner in which these laws have been sold to the general public and how they have been applied in the real world.

In Part 3 I will analyse what I have learnt, highlight what I feel are the main issues and examine whether photographers really do have anything to fear from the State.

I hope that you and yours had a fantastic Christmas and that you have a very safe & happy 2010.

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