I WILL PLACE a bet, here and now. Within two years, tens of thousands of British motorists will have been arrested, fingerprinted, DNA-tested and drug tested for minor road and traffic violations. Some for turning the wrong way at an intersection. Some for thoughtlessly driving in a bus lane.
The experience will be traumatic, but efficient. Fingerprints will be scanned at the roadside and transmitted instantly for checking against the national fingerprint database. While this information is being processed, a sample of saliva or a hair will be taken. Once the Government has introduced mandatory drug testing, as it has pledged, a roadside drug test can determine instantly whether a range of substances are present in the body.
Meanwhile, the usual checks will be made against the Police National Computer (PNC) and intelligence databases. With the establishment of a corporate data model across the entire law enforcement community, police can also access information from the probation service and courts. Forthcoming new provisions for information sharing will also empower police to reach into databases throughout government that are currently inaccessible.
The PNC stands testimony to the vast reserves of information now available to police. Its millions of files include arrest data, details of offences and methods, personal descriptions, bail conditions and remands, convictions, custodial history, disqualified driver records, cautions and drink-drive related offences.
The data search will not be confined to the UK. The PNC is compatible with Europe’s Schengen Information System (SIS), designed to exchange criminal and wanted-person information across Europe. SIS is expanding to include four new categories of people: “violent troublemakers”, such as protesters and suspected football hooligans; people whose visas have expired, who would be subject to arrest and expulsion; an “EU visa database” to record all visa applications (issued and refused); and a database of all third-country nationals legally resident in the EU (more than 14 million people).
Even with all this data to hand, the arresting officer will not always be satisfied with the results of a roadside investigation. If the appropriate personal ID is not available, the hapless driver will be issued on the spot with “street bail” to attend a police station. This is a recent power granted to police under the Criminal Justice Act that permits officers to require suspects or offenders to report to a station at a specified time. Failure to comply may result in arrest and imprisonment.
Traffic violations are currently dealt with through summons, rather than arrest. However, a raft of new laws and amendments to the Police and Criminal Evidence Act, the Criminal Justice Act and the Serious Organised Crime and Police Act has created police powers that would be unthinkable in most democracies.
The trigger for many of these new powers is clause 106 of the Serious Organised Crime and Police Act, hastily passed into law just before the election. The section removes the traditional legal distinction between “arrestable offence” (an offence punishable by imprisonment) and an ordinary offence (littering, jaywalking or blowing a whistle in an annoying manner).
Once this section comes into force after the summer any officer can use the full powers of arrest — and all the bells and whistles that go with it — to deal with any transgression, no matter how trivial. Recent legislation empowers police to take fingerprint and DNA samples on arrest, rather than upon charge. The data will remain indefinitely on police systems, even if the subject is acquitted.
The Government’s view is that the law does not require police to use their full powers of arrest on every occasion. The police are empowered to use discretion. Thereby hangs the tail. The lottery facing any citizen is that unknown circumstances or prejudices may trigger a demand for fingerprinting and DNA. After all, some officers may rightly be indignant about motorists who unlawfully travel in a bus lane. They may view this offence as a heinous violation of trust that must be fully punished to support the common good. Other policemen may feel equally passionate about speeding, or perhaps unlawfully collecting firewood in a forest.
In granting these new powers the Government has lost the plot. Now that Parliament has risen for its summer break MPs may wish to reflect that they have succeeded in gutting traditional rights and freedoms in British law. Of course, the fight against terrorism should be supported by all citizens, but not unless new police powers are matched with equally potent safeguards against abuse.
The Association of Chief Police Officers has laid out a set of demands for new powers that go beyond even the current right to stop and search without suspicion. These proposals include secret hearings and requiring computer users to disclose their encryption keys. The powers would have application well beyond the world of counter-terrorism.
Nearly every modern law is built on the premise that all people are potentially guilty unless proven otherwise. The Children Act is a good example of this trend, It provides for the profiling and analysis of all children to detect which infants may be potential criminals. The Regulation of Investigatory Powers Act makes provision for the universal archiving of all communications records (phone, e-mail and internet visits) for possible later use by authorities. A raft of new laws on border security, travel and immigration controls assumes that all travellers, UK nationals and others are potential criminals and should be subjected to constant tracking and profiling.
It is equally true that the Government has abandoned any responsibility for protection of privacy. The Health and Social Care Act removes the traditional right of patients to control their own health information, transferring the ownership of this data to the Secretary of State for Health.
The Identity Cards Bill will place all key personal information under the control of the Home Secretary. Legislation since 1995 has permitted a range of public authorities the right to share information on every UK resident. Each of these laws progressively undermines the provisions of the Data Protection Act, a law designed to preserve citizen rights over personal information.
The Government must recognise that alongside its responsibility to protect the nation against crime and terrorism, there must be an equally robust commitment to improve transparency and accountability. Otherwise, this all amounts to a gradual but serious corrosion of rights.
Simon Davies is a Visiting Fellow at the London School of Economics and Director of Privacy International
