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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Tue, 01 Jan 2013

Blog posts in 2012

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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

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

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

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