Robin Wilton's esoterica

Further details are starting to emerge about the circumstances under which the police entered the House of Commons last week; the BBC has some of them, in this article, though it has to be said, the net result is further confusion rather than clarity.

Interestingly enough, the BBC article appeared some time after Wikileaks had already announced the publication of a letter from the Metropolitan Police to the Home Secretary giving responses to a number of questions concerning their access to the House. It may not surprise you to learn that that letter, too, does more to obfuscate than to clarify.

The essence of the police argument concerning whether or not they had a warrant to search Mr Green's office is as follows (The italics and paraphrasing here are mine, but only because the police letter is so convolutedly impenetrable. Whether that is intentional or accidental, I could not possibly say):

"PACE (the Police and Criminal Evidence Act) permits a magistrate to issue a warrant for consentless entry to premises in search of evidence of a suspected crime, if the officer in question believes the magistrate could be convinced that entry would not be granted without a warrant (i.e. on the basis of consent alone).

The officers in this case did not belive they would have been able to convince a magistrate that consent would be refused, and therefore did not ask for a warrant, because the strict requirements of PACE would not allow the magistrate to issue one under those conditions."

This raises at least as many questions as it purports to answer.

Let us, for the sake of argument, apply the 'reasonableness test' to three hypothetical cases.

- First, imagine that officers had asked Mr Green, directly, if they could search his office. He might well have felt it within his rights, as an MP, to refuse.

- Second, let's imagine that they asked the Speaker of the House, or the Serjeant at Arms, and either of those office-holders demonstrated the kind of concern for parliamentary sanctity which MPs from all parties have suggested is their duty. They might well have refused.

- Third, let's imagine that the officers had gone straight to a magistrate and asked for permission to search an MP's parliamentary office, looking for evidence of leaks which are acknowledged to have taken place, and on the basis of a common-law offence of 'improper behaviour in public office'. The magistrate might well have refused.

The police claim, then, is that they didn't ask for a warrant because they felt that would put a magistrate in the untenable position of having to decide, against reason, that consent for access would be refused. With respect, surely that is for a magistrate to decide, and that is why the magistrate's consent has to be sought. If the police cannot make a case which will convince the magistrate, then they know exactly where they stand. 

Surely the clear implication is this: that the police were happier to proceed without first applying to a magistrate, because they suspected what answer they would have got if they had done so.

The European Court of Human Rights (ECHR) has now issued its ruling, which (by unanimous vote of the 17 judges concerned) declares that the UK policy of retaining the DNA samples and profiles of innocent people breaches those individuals' rights.

In my previous post, I quoted the Home Office view that "Any intrusion on personal privacy is proportionate to the benefits that are gained". The ECHR ruling directly contradicts this, finding that the current policy is neither proportionate nor "necessary in a democratic society", and fails "to strike a fair balance between the competing public and private interests".

Another commenter on the ruling took issue with the Home Secretary's subsequent statement that "DNA [...] is vital to the fight against crime", pointing out that in Scotland, detection rates are higher than in England despite the Scottish policy requiring deletion of the DNA records of those not subsequently charged.

So far the Home Office response is intransigent: the current legislation will stay in place, they say, while they consider what steps to take next.

In a comment on yesterday's post, Richard Veryard astutely pointed out some of the absurdities in the apparent drafting of the Borders, Immigration and Citizenship Bill (BIC. Hmm. Is the fact that it's named after a cheap, throwaway razor some kind of dry civil service joke? Perhaps, somewhere in the Home Office, a drafting clerk is hugging him/herself with silent mirth as their handiwork is propagated).

Leaving that entrancing image to one side... Richard aptly wonders how on earth a police officer is supposed to tell that the person whose identity documents he/she wishes to inspect has been outside the UK - this being the criterion which would makes it legal for their papers to be demanded. As he also points out, there are more ways to enter the UK than by crossing its borders. Well, one, anyway.

This is probably part of a cunning plan by the UK Borders Agency. Having established their position in this bill, they will draft secondary legislation in due course to classify all maternity wards as "points of entry into the UK", thus formalising their entitlement to station an immigration officer by every bed and birthing pool. New arrivals could then be DNA-sampled and registered (only as provisional citizens, of course, until it is determined whether they are integrating effectively or not).

All of which might make the outcome of this case critical. The European Court of Human Rights is today expected to issue its ruling on the appeal of two UK citizens to have their DNA samples and profiles removed from the national database. The two men, who were both arrested and charged but acquitted, have spent years arguing that their DNA should not be retained on the database. Interestingly, the 'home page' for the NDNAD now reads like a commercial marketing brochure - pre-emptively defending the scheme against the most publicised criticisms of it.

In a little FAQ-like section at the bottom of the page, it poses these questions:

"Why are people who have not been convicted on the database?". Answer: because the law has been changed to allow it.

"Does this pose any privacy problems?" Answer: "Any intrusion on personal privacy is proportionate to the benefits gained."

Well, I'm glad that's sorted out, then.