Yesterday Home Secretary Theresa May told Parliament that a rapid review of key counter-terrorism and security powers is underway. The review, a commitment in the coalition agreement, published on 20 May 2010, will look at what counter-terrorism powers and measures could be rolled back in order to restore the balance of civil liberties and counter-terrorism powers “and, in so doing, restore the ancient civil liberties that should be synonymous with the name of our country.”

She said: “The review will consider six key powers: control orders; section 44 stop-and-search powers and the use of terrorism legislation in relation to photography; the use of the Regulation of Investigatory Powers Act 2000 by local authorities and access to communications data more generally; extending the use of deportations with assurances in a manner that is consistent with our legal and human rights obligations; measures to deal with organisations that promote hatred or violence; and the detention of terrorist suspects before charge.” She believes that these are the most controversial and sensitive powers. “In particular, the issue of pre-charge detention has been the subject of considerable debate in the House, and tomorrow we will consider whether to renew the current detention limit for a further six months.” That would provide sufficient time to look carefully at pre-charge detention and to explore how the period of detention below 28 days can be reduced. She added: “Personally, I was always in favour of 14 days, but the whole point of a review is to look at what the appropriate period should be, and I do not wish to pre-empt the review’s decision or the information with which it will come forward.”

The review will be conducted by the Home Office with the full involvement of the police, security and intelligence agencies and other Government Departments, including those in Scotland and Northern Ireland, and with oversight from Lord Ken Macdonald QC, former Director of Public Prosecutions. The proposals made by Lord Carlile, in his statutory role as independent reviewer of terrorism legislation, will be fully considered as part of the review. The Home Secretary concluded: “I want the review to be conducted as openly and transparently as possible. I have asked Liberty to contribute to the review, and it has said that it would be delighted to do so. I am keen to involve other civil liberty and community organisations and, as with other reviews, I would urge anyone with an interest to submit their views to the Home Office.” On timing, she said: “I have ordered that the review should be completed as quickly as possible, because it is important that the police and the security and intelligence agencies are able to do their vital work with certainty and confidence. I will report back to Parliament on the outcome of the review after the summer recess.”

The blog posted on 23 June 2009 concerned the annual report by Lord Carlile, the government’s official anti-terror law watchdog, about the use of s.44 Terrorism Act 2000, which grants police the power to stop and search anyone in a designated area without suspicion that an offence has occurred. He found that examples of poor or unnecessary use of the section abound. “I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist” he said. He added that terrorism related powers should be used only for terrorism related purposes, otherwise their credibility is severely damaged.

Another blog, posted on 27 January this year, reported the judgment of the European Court of Human Rights that police stop and search powers under anti-terrorism legislation in the United Kingdom are too wide and not adequately safeguarded by the law against abuse. The Court concluded that the powers of authorisation and confirmation, as well as those of stop and search under ss. 44 and 45, were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They were not, therefore, “in accordance with the law”, in violation of Article 8.

Now comes another embarrassment for the police service with the revelation that tens of thousands of people have been stopped in the street and searched unlawfully, and it could be that they are all entitled to compensation. Fourteen police forces are urgently trying to find the individuals involved after being told by the Home Office that errors had been found in the way 40 separate stop and search operations were authorised since the powers were introduced in 2001. The Home Office said that in most of the cases authorisations were issued for periods beyond the 28-day statutory limit for each operation or were not signed off by ministers within the statutory 48-hour deadline. The Met and City of London police were responsible for 10 of the 40 illegal operations. Thames Valley police were responsible for six, Sussex five and Greater Manchester three.

Nick Herbert, the police minister, said in a written Commons statement on 10 June that the mistake was discovered after a freedom of information request triggered a review of the Metropolitan police’s s. 44 records, which in turn led to a comprehensive review by the Office for Security and Counter Terrorism. He said: “To summarise these errors, on 33 occasions authorisations were specified to be for 29 days, and two occasions when the authorisations were specified to be for 30 days, whereas the statutory maximum period is 28 days. In addition, there was one further case…where ministerial confirmation for the authorisation was not provided within the statutory 48 hour deadline”. Four other cases were mentioned. He concluded: “I am aware that there is considerable concern about the operation of section 44 stop-and-search powers going beyond these authorisation errors. The Government are committed to a wider review of counter-terrorism legislation, including the operation of the section 44 stop-and-search provisions.”

The latest Home Office statistics show that there were 148,798 stop and searches under section 44 in 2009, 40 % fewer than the previous year.  A total of 688 arrests were made as a result of these searches, an arrest rate of 0.5%.

Of the 47 member states of the Council of Europe, the United Kingdom (excluding Scotland) is the only one to have an all-encompassing scheme for DNA and fingerprint retention. Under s.64 of the Police and Criminal Evidence Act 1984 the police can retain bodily samples, DNA profiles and fingerprints from anyone arrested for a recordable offence, whether or not they are charged, prosecuted or convicted.

This position was challenged at the European Court of Human Rights last year in a landmark case*. The circumstances of the applicants in S and Marper v UK were as follows. Mr S. was arrested on 19 January 2001 at the age of eleven and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted on 14 June 2001. The second applicant, Mr Michael Marper, was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. On 11 June 2001, the Crown Prosecution Service served a notice of discontinuance on the applicant’s solicitors, and on 14 June the case was formally discontinued. The applicants complained under Articles 8 and 14 of the Human Rights Convention that the authorities had continued to retain their fingerprints and cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or had been discontinued. In a far reaching judgment, delivered on 4 December 2008, the Court’s Grand Chamber of 17 judges found that the retention of DNA profiles, cellular samples and fingerprints of the applicants was disproportionate and therefore unjustified under article 8 of the Convention. It declared that the current legal framework for the DNA database, with its “blanket and indiscriminate” powers to retain samples, amounted to a violation of fundamental rights. The Court countered the government’s argument that, as a pioneer in new techniques, it should be given a greater margin of discretion by stating, in para 112 of the judgement, “The Court considers that any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance…” The onus was placed on the government to put forward a scheme for retention that fulfils the basic requirements for proportionality, and the Court reminded the government to take greater account of individual rights when developing the law.

The Home Office has today published its proposals, which fall far short of the destruction of all DNA profiles, samples and fingerprints of 850,000 innocent people kept on the DNA database sought by human rights groups and opposition politicians. Instead they propose to retain profiles of those arrested but not convicted of serious violent or sexual crimes for 12 years; retain profiles of those arrested but not convicted of all other crimes for six years; retain profiles of young people arrested but not convicted or convicted for less serious offences as a teenager until they turn 18; and keep fingerprints for those arrested but not convicted of serious violent or sexual crimes for 12 years, and six years for all other crimes. The Court had sought a response that would not simply be to cite crime prevention as a generality, but, launching a public consultation on the subject, Home Secretary Jacqui Smith said “It is crucial that we do everything we can to protect the public by preventing crime and bringing offenders to justice. The DNA database plays a vital role in helping us do that and will help ensure that a great many criminals are behind bars where they belong… These new proposals will ensure that the right people are on it, as well as considering where people should come off.”

For full details of the public consultation ‘Keeping the right people on the DNA database’ go to http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/

* Grand Chamber; Case of S. and Marper v. The United Kingdom (Applications nos. 30562/04 and 30566/04); Judgement: Strasbourg, 4 December 2008.database,

This column has banged on at some length in recent times about the dangers to civil liberty and privacy caused by unlimited surveillance, and now the EU is weighing in with the same concerns. “Europeans must have the right to control how their personal information is used” said Viviane Reding, the EU’s Commissioner for Information Society and Media, announcing this week several areas in which the Commission is ready to act to maintain this right as technology trends make it easier to use, and misuse, personal information.

The Commissioner said that European privacy rules are crystal clear: a person’s information can only be used with their prior consent. Radio Frequency IDentification (RFID), the smart chips integrated in products such as electronic bus passes to send radio signals, would only realise their economic potential if they are used by the consumer and not on the consumer. “No European should carry a chip in one of their possessions without being informed precisely what they are used for, with the choice to remove or switch it off at any time.” The Commissioner also called on social networking companies to reinforce privacy protection online, particularly the profiles of minors, which must be private by default and unavailable to internet search engines. Mrs Reding asks “do we not cross the border of the acceptable when, for example, the pictures of the Winnenden school shooting victims in Germany are used by commercial publications just to increase sales?” The European Commission has already called on social networking sites to deal with minors’ profiles carefully, by means of self-regulation. The Commissioner warned that the EU would take action where Member States fail to implement EU rules ensuring privacy and the need for a person’s consent before processing his or her personal data.

Regarding behavioural advertisement systems that monitor internet users’ web browsing to better target them with advertisements, “we cannot…have all our exchanges monitored, surveyed and stored in exchange for a promise of ‘more relevant’ advertising”. Earlier this week the European Commission launched proceedings against the UK concerning this online advertising technology developed by UK based Phorm, tested by BT and cleared by the authorities. The current UK law allows internet traffic to be intercepted if the company doing the intercepting believes that it has consent. “We have been following the Phorm case for some time and have concluded that there are problems in the way the UK has implemented parts of EU rules on the confidentiality of communications”. The Home Office said that it would respond to these proceedings in due course.

“It is a national disgrace that in 2009 rape almost always goes unpunished” writes Libby Brooks in the ‘Guardian’. “This is about systemic, institutionalised negligence. If you are raped, the likelihood is that the police won’t help you, and the CPS won’t help you. If you unusually achieve a trial, the prosecution won’t help you and the judge won’t help you”.

The statistics of rape are difficult to pin down. The British Crime Survey in 2000 calculated that 754,000 women had been raped at least once, 61,000 in the previous year. The group Campaign to End Rape estimated that in 2001 there were 190,000 serious sex assaults and 47,000 rape or attempted rape victims. As all figures are considered to be underestimated the incidence is staggering. The great majority of victims never report their attack, and of those that do only 25% will make it to court because the obstacles for a complainant remain enormous. In 2003/04 there were 12,354 recorded offences of rape. The persistently low conviction rate is just over 6%.

So embarrassing has been the failure to deal effectively with rape cases that the Home Office this week announced a series of new measures. An additional £1.8m is to be provided to set up more sexual assault referral centres, which “play a vital role in providing care and support for victims, while also giving investigators the best chance to build a successful case. They provide victims with immediate medical help, counselling, forensic examinations and the opportunity to give evidence anonymously, all in one location”. There will be training for police officers on what to do when a rape is first reported. Victims will meet with a specially trained officer within an hour of reporting the crime. There will be additional help for police and prosecutors investigating rape cases, to ensure that crimes are solved and attackers are punished. Targets will be set for rape investigations, and a Rape Performance Group set up, charged with quarterly monitoring and assessment of police and the Crown Prosecution Service’s handling of rape cases.

Introducing the new initiative, Home Office Minister Vernon Coaker called sexual assault cases “uniquely difficult crimes to investigate”. In a clearly coordinated move the CPS last month published a revised ‘Policy for Prosecuting Cases of Rape’ detailing all the steps (and difficulties) of such cases. It concludes with the not exactly resounding commitment “to playing our part in improving the way that rape cases are dealt with in the criminal justice system. We want victims to have confidence in the way in which we review and progress cases”. But campaigners are not impressed. According to Libby Brooks, Britain has some of the best sex crimes legislation in Europe, but a police service that won’t enforce it, a judiciary that refuses to apply it and a government that gives it insufficient priority.

The Home Office recently published a consultation document and draft regulations to implement a European Directive requiring the retention of electronically generated data. The consultation document states that this is “to enable public authorities to undertake their lawful activities to investigate, detect and prosecute crime and to protect the public.” It goes on to say “the term communications data does not refer to the content of communications. It’s about:

• Who is communicating with whom?
• When and where are they communicating?
• What type of communication is it?”

In the aftermath of the July 2005 London bombings, the then Home Secretary, Charles Clarke, took the lead in securing the Directive, which specifically places the provisions in the context of the EC’s “declaration condemning the terrorist attacks on London”. So far so good, but in implementing the requirements the Government is going way beyond terrorist offences. The catch-all provisions of the 2000 Regulation of Investigatory Powers Act mean that access to personal internet and text data will be available to all public bodies licensed under that Act. According to the ‘Guardian’ “this means that hundreds of public bodies including local councils, health authorities, the Food Standards Agency, the Health and Safety Commission and even the education standards watchdog will be able to require telecommunications companies to hand over the personal data”.

Opposition spokesmen have condemned these requirements as a “snooper’s charter”, but the Home Office loftily declares “we consider that these measures are a proportionate interference with individuals’ right to privacy to ensure protection of the public.” The recent track record of public bodies in protecting sensitive data gives little cause for confidence.

If you want to contribute to the debate you have until 31 October. For the full text of the consultation paper, the EU Directive and the draft regulations see http://www.homeoffice.gov.uk/documents/cons-2008-transposition?view=Binary