The Guardian on civil liberties

Tim quotes Martin Kettle in The Guardian about

how Maya Evans and Milan Rai were arrested for reading out the names of Iraq war victims opposite the Cenotaph war memorial in Whitehall (though if they had given the right notification they would not have been),

and justly comments

Of course having to ask permission from the police before you speak is not the same as living in a police state. What on earth would give anyone that idea?

As I recall, the Soviet Constitution guaranteed the right to hold demonstrations (Article 125 of Stalin’s constitution, though I think the numbering changed in later versions).

When, however, refusniks tried to quote this constitutional right on finding themselves on trial for hooliganism as a result of participating in demonstrations against the government’s refusal to grant exit visas, the Moscow city courts would patiently explain to them that the problem was they hadn’t obtained the necessary permits for their demonstration.

The fact that such permits are, for the present, considerably easier to obtain in London than were they in Moscow 30 years ago is certainly welcome but to use that as a justification for requiring people to obtain permits in the first place rather misses the point.

Brown, intercept evidence and disclosure

Craig Murray, our sometime man in Tashkent, sounds a note of warning about Gordon Brown’s proposal to allow intercept or wire-tap evidence in terrorism cases.

He writes,

The concern [in the Home Office] is that intercept evidence might be more helpful to the defence than the prosecution. Where communication intercepts are used, as in the USA, the laws of evidence are that the prosecution must make complete disclosure of all the wiretaps made. The defence can then search this for evidence that points to innocence.Compare this to the situation that operates with control orders, or indefinite house arrest without trial. Here the prosecution just feeds to the judge (no jury) an isolated snippet of information from “intelligence”, reflecting not a whole picture but just the security services’ interpretation. Judges tend to be impressed by this “Top Secret” stuff.

To let the defence at raw intercepts threatens the intelligence services’ greatest lever of power – their monopoly of interpretation of raw data. Even Ministers, or Ambassadors as I was, don’t get the raw data, but a “Report” summarising, interpreting and selectively quoting.

In criminal cases in general, there are pretty complicated rules on ‘disclosure’ that are supposed to make sure the defence gets to see anything that may be relevant to the case, and in particular anything that may strengthen the defence or weaken the prosecution. And, most of the time, the defence can ask to see — and often insist on seeing — anything that’s been turned up during the investigation even if the prosecution don’t think it’s in any way relevant.

Now, according to Craig Murray, he’s been told by a friend of his who’s still in the senior civil service that

the proposal being considered by the Home Office is this – that the defence should not be allowed access to all the material from wiretaps of the accused. The prosecution would have to disclose in full only the conversation, or conversations, being directly quoted from. The security services are prepared to go along with that, and the Home Office believe that the public demand for wiretap evidence to be admissible will drown out any protests from lawyers. We will be told the Security Services are not staffed to cope with fuller disclosure.You read it here first. As my friend put it: “You see, in the minds of the Home Office, justice equals more convictions.“

If this turns out to be the case, then it’s really rather sinister; it’s the equivalent to the defence only getting to see those witness statements that support the prosecution or, indeed, not getting to see the complainant’s past history of making false allegations. A good recipe, in other words, for miscarriages of justice.

Murray also raises the possibility that, slightly further down the line, doubts will be raised about the propriety of letting juries see some intercept evidence because of its security classification and that, a year or so from now, we’ll be seeing a move to introduce Diplock Courts in terrorism cases.

I don’t know about this, but it’ll certainly bear watching carefully when the detailed proposals are finally announced.

Our son of a bitch….

Via Matt at An Insomniac,the depressing, though perhaps unexpected, spectacle of a huge assembly of Guardian readers queueing up in Talk is Cheap Comment is Free to endorse censorship and the shutting down of TV stations by Hugo Chavez, criticism of whom is apparently now punishable by 30 months in prison. One of the few dissenting voices notes,

Chavez may be a son of a bitch but he’s the liberals’ son of a bitch.

My favourite, though, is someone who quotes Article 57 of the Venezuelan constitution, apparently protecting freedom of speech, and asking

Can you now state the law that protects freedom of speech in the UK or USA for example?

Someone else helpfully draws his attention to

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.”

I thought of pointing to Article 125 of the Soviet Constitution of 1936

ARTICLE 125. In conformity with the interests of the working people, and in order to strengthen the socialist system, the citizens of the U.S.S.R. are guaranteed by law:

1. freedom of speech;
2. freedom of the press;
3. freedom of assembly, including the holding of mass meetings;
4. freedom of street processions and demonstrations.

but I don’t think CiF readers do irony too well.

There may be a case for shutting down these stations, or, at least, not renewing their terrestrial broadcasting licences — I don’t know; Venezuela’s recently had an attempted coup, so maybe we shouldn’t expect things to work the way we’d like them to — but I do know that ‘Chavez is getting up George Bush’s nose something dreadful, so pretty much anything he does must be OK’, which is just abot the level of most of the CiF comments, isn’t a particularly convincing one.

CRB checks (and DNA)

Back in January I mentioned a friend of mine who discovered she’d been the victim of a mistake by the CRB. She does voluntary work with a play group organised through her church and they finally got round to insisting all volunteers had a CRB check.

Rather to her surprise, she discovered she’d been convicted back in the 1980s for Taking a Vehicle Without the Owner’s Consent, Excess Alcohol and No Insurance, which she was sure she’d have remembered if it had happened. Then, which really annoyed her, the following day a snotty and sanctimonious letter arrived from the national organisers of this children’s group suggesting they weren’t really sure she was suitable.

Simple enough mistake, it seemed. Same (rather unusual) first name and, similarly rather unusual, surname as her maiden name (she was, at the time of the offence, using her married name), though different middle name and about 10 years’ age difference.

Anyway, I said I’d post again to say how she got on. I saw her the other day and it’s, at last, resolved — 5 months later. This involved her arranging to be fingerprinted at her local police station, which apparently took several weeks to set up. Not quite sure why this was, though it may have been that they had to find an old ink roller and pad fingerprint kit (and someone who knew how to use it, I suppose) of the sort used a the time of the original offence, rather than use the digital equipment now in use, to make the comparison easier.

That, I think, took a couple of months, and now she’s only just been told, not that they’re sorry they made a mistake but that they can’t find the original file so they can’t actually prove it was her. Which seems somewhat grudging to me — no apology, and it took quite a bit of pushing from her to get Thames Valley (her local police area) to tell the CRB people to issue a new, clean, certificate rather than for her (or the charity, rather) to reapply.

She’s not at all happy about this, and who can blame her? What particularly irritates her, as she said, is that throughout she’s been telling them that the Excess Alcohol conviction would have led to an automatic driving ban, so here’s her licence and why didn’t they ask the DVLA if it had ever been suspended? Since the DVLA would — one hopes — confirm it hadn’t, nor ever had any endorsements on it, that would, surely, prove it wasn’t her who had been convicted. Not interested, though.

This reminded me of another case of mistaken identity, when some time ago another friend’s son, whose DNA is on the Police Database because he was convicted for common assault (punch-up between him and another drunk 18-year-old late one Saturday night) found himself hauled in for questioning in connection with a burglary, which he’d certainly had nothing to do with. They’d found DNA evidence at the scene of the break-in, though, and it seemed to match his.

He was sure he hadn’t done it, and had, in fact, been at work at the time of the burglary, so they ran a more detailed analysis and, sure enough, it wasn’t his DNA at all. Apparently the way it works is that they do an initial, quick and cheap, comparison, in the hope that whoever they get the match for will, on being confronted with the forensic evidence, realise the game’s up and confess. They only bother with the more detailed, time-consuming and expensive tests if, despite the apparent evidence, he’s still adamant he’s innocent.

The full implications of this become horribly clear when I read Philip Johnston in today’s Telegraph. After discussing the reasons we’ve apparently got

the world’s largest DNA database, half as large again as the rest of the European Union put together. It represents more than five per cent of the population, compared with just over one per cent in the rest of the EU and 0.5 per cent in America

— not only do we keep DNA from people like my friend’s son,

convicted criminals, [but this ] was extended to people who were tried but acquitted, then to people who were charged but never tried and then, last year, to people who were arrested but never charged

and now they’re talking about retaining samples from suspects, witnesses, people whose DNA has been taken for elimination purposes and, if John Reid gets his way, taking and retaining DNA for people committing ‘non-recordable offences’ like dropping litter and speeding (I can’t see it happening for speeding, since it would upset too many people, but who knows?).

Well, if you’ve nothing to hide, you’ve nothing to fear, or so we’re told. Other, I suppose, than someone making a mistake or a sample getting contaminated or even, as happened with my friend’s son, being hauled in and questioned at quite some length by detectives who’re convinced they have what appears, prima facie, to be pretty good evidence against you.

But it’s worse than that. We’ve apparently recently signed up to something called The Prum Treaty. Mr Johnston explains,

This is an agreement to share criminal data across the EU, including DNA.Since Britain has by the far the largest DNA database in Europe, how this treaty operates is of great importance to those whose profiles are retained. Other EU police forces will have access to the UK database on a “hit, no hit” basis. In other words, the British authorities will inform their counterparts in, say, France whether a profile they have forwarded is retained on the British system.

If it is, what would the police in France think?

Let us imagine they are investigating the rape of a girl at a campsite and they take the DNA of all men staying there. Would they not be suspicious of a person whose DNA shows a positive match on the UK’s criminal database, since their own does not have a million innocent people on it?

So you may have nothing to hide but if, like our correspondent now on the criminal database for being beaten up by someone who ran into his car, there may be something to fear. Who knows what would happen to him were he considered a suspect in a serious crime while on holiday abroad on the sole grounds that his DNA was a “hit” on the UK system?

Google, privacy and a techie note

Via Archrights and Longrider, a Financial Times story from last week about

Google’s ambition to maximise the personal information it holds on users is so great that the search engine envisages a day when it can tell people what jobs to take and how they might spend their days off.

Longrider is quite sanguine about this development, as is the FT editorial; the service is an optional one, they both argue, and if you don’t feel the need to ask Google for suggestions about what to do next weekend or what job you should take, then there’s no need to sign up for it.

Fair enough, though the FT does add the — to my mind, necessary — caveat that

The underlying principle must be informed consent. This means that information should be used only for the purpose for which it was gathered. In general, this should mean that it is not handed over to another organisation without the user’s express say-so. Even if this stance cannot always be maintained – for example, if a government demands information at the time of a security crackdown – then the risk that the data may be passed on in certain circumstances must be made explicit.

I’m always slightly suspicious of data mining for pretty much the same reasons as is the FT. There’s a surprising amount that can be deduced about you from things like supermarket loyalty cards — I’ve worked for a company, albeit on another project, that helps build the software that analyses such data for the supermarkets’ marketing departments, so I know a bit about this — and you’d be astonished both at how accurate the predictions turn out to be, at least based on take-up of personalised offers and vouchers issued on the basis of analysis of your purchasing habits, and you’d also be astonished at the third parties to whom this information is sometimes sold, and what they can do with it.

I mean, if you were a life insurance company wanting to offer the most competitive rates, wouldn’t you be interested in finding out as much as you can about the eating, smoking and drinking habits of a potential customer? I’m not sure if anyone does that — I’d be a bit surprised, though, if an individual supermarket’s marketing department and its financial services department (if it has one) don’t share information. And certainly HM Revenue & Customs have the power — which they use — to check on people’s spending; if you’re a self-employed painter and decorator who’s being a bit remiss with your VAT, I really wouldn’t advise using a loyalty card at one of the big DIY stores, for example.

Anyway, as I say, I’m a bit distrustful of data retention on principle, and this extends to data retained by search engines. People will recall, no doubt, the embarrassment caused to both AOL and its customers — rather more embarrassing for the customers, I think — when, last August,

AOL’s publication of the search histories of more than 650,000 of its users […] yielded more than just one of the year’s bigger privacy scandals.The 21 million search queries also have exposed an innumerable number of life stories ranging from the mundane to the illicit and bizarre.

While users weren’t identified by name, they were given unique user numbers, so, for example, you can find out that

Based on the number of local searches, AOL user 1515830 appears to be a resident of Ohio’s Mahoning County.

and I’m willing to bet that, when she was conducting various searches on March 9 of last year, AOL user 1515830 didn’t expect them to be made public and was justifiably furious when they were (read the CNET story and see if you don’t agree).

For a bit of light relief, turn to the explanations of some of his Google searches the inestimable Jon Swift thought it necessary to provide when he discovered in January 2006 that Google

fighting a subpoena from the Bush Administration to turn over its data on searches in order to defend the Internet Child Protection Act. Of course, I support whatever the Bush Administration thinks it needs to do to protect children from the Internet and think Google should surrender this data immediately. However, I was looking at the record of Google searches I have done and am worried that there might be some misunderstandings when these searches are seen out of context. So in case Google does lose its case, I would like to take this opportunity to explain some of the searches I did so that no one in the Justice Department gets the wrong idea. As you can see there are innocent explanations for all of them

My worries about this sort of thing were hardly assuaged when I read in today’s Register that

Google has faced down one European probe into what it does with people’s personal information, only to be challenged with another.Last October, privacy watchdogs in Norway, which is not part of the European Union but has identical data protection laws, asked Google to justify why it retains people’s search histories for up to two years. Google refused to co-operate.

Now the Article 29 Working Party, which advises the Justice Directorate of the EC, has asked Google to bring its business practices into line with European data protection law so that it gives due respect to people’s privacy.

The article continues,

The Register understands that Google has been the cause of anxiety among members of the A29 Working Party for some years. Their members, who include representatives of national EU privacy watchdogs, are not pleased about how long it keeps information. The Norwegians were also concerned that Google might be using its data stores to create profiles of people’s lives. This was one question Google refused to answer.Leif Aanensen, deputy director general of the Norwegian Office of the Data Inspectorate, told The Register that it had effectively put its Google probe on ice after the data giant refused to accept that it came under Norwegian jurisdiction.

“We are not satisfied,” he said. “We didn’t get the proper answers.”

“Our main issue was their data retention policy and the use of the data they stored. We asked them what they were doing with the personal data – are you creating profiles – they didn’t answer,” he said.

Anyway, if, like me, you are a bit concerned about this sort of thing, you might like to know there’s a Firefox add-on called TrackMeNot. As the project’s home page explains, along with a lot of rather disturbing background about what the US government is doing, or trying to do, with search engine queries,

TrackMeNot runs in Firefox as a low-priority background process that periodically issues randomized search-queries to popular search engines, e.g., AOL, Yahoo!, Google, and MSN. It hides users’ actual search trails in a cloud of ‘ghost’ queries, significantly increasing the difficulty of aggregating such data into accurate or identifying user profiles.

Blair, civil liberties and the rights of suspects

Mr Blair seems determined to leave office, perhaps as an ironic tribute to the Viking who will succeed him, with a positively Wagnerian bonfire of civil liberties.

Where to start? His article in today’s Sunday Times is perhaps a good place, since it’s pretty breath-taking in what it reveals about the way our PM’s mind works. He wants, he says, to ‘clear away some of the absurd criticism of the police and security service over the three individuals who absconded.’ That’s a bit of a half-truth, I think, because the criticism hasn’t, as far as I know, been particularly aimed at them; it’s been directed at his Home Secretary. ‘Why,’ people have wanted to know, ‘is the Home Secretary forever blustering on, whenever anything goes wrong, about how he needs more and more power?’ (I think there’s a Star Trek joke there, somewhere). Could it not be, one wonders, that the man’s not particularly competent at using the ones he’s already got? Or could it even be that there’s a deeper problem?

In any event, Mr Blair’s answer is the usual one: it’s everyone’s fault but ours. In this case, the culprits are, of course, those infernal civil libertarians in general and the judiciary in particular. Mr Blair explains,

Dr Reid in discussions with the judiciary

The Home Secretary, House of Commons, 24 May:

I entirely accept that we should speak to a range of people, including retired members of the judiciary, but at the end of the day this is a matter for politicians. It is not a matter for judges or lawyers. They are a vital tool in interpreting existing laws, but it is for politicians to address the historical disjunctions that arise because of changes in the world. It is for them to address the law of conflict as it currently exists and its inadequacies in terms of the nature of today’s conflict, the law of peace and the disjunction between it and the nature of today’s peace—for we currently have something between war and peace—and the nature of the threat that we face. […]Let me put it simply. The European convention on human rights was intended to defend the individual from the unparalleled destructive capacity of the fascist state. That is what gave rise to it. People did not envisage at that time that the state and the community might now be under threat from the unparalleled destructive capacity of fascist individuals working in networks. That is what we face today. The arbitrary imposition of one’s will on another by destructive power is fascism, whether it emanates from Europe or any other area. We now face a historical development that requires all of us to build on the European convention on human rights, strengthen it and ensure that the most fundamental of all rights—the right to life and to protection of that life—without which no other right—

Lord Hoffman (a not-yet retired member of the judiciary) in his dissenting judgment in A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2004] UKHL 56, 16 December 2004:

If the finger of suspicion has pointed and the suspect is detained, his detention must be reviewed by the Special Immigration Appeals Commission. They can decide that there were no reasonable grounds for the Home Secretary’s suspicion. But the suspect is not entitled to be told the grounds upon which he has been suspected. So he may not find it easy to explain that the suspicion is groundless. In any case, suspicion of being a supporter is one thing and proof of wrongdoing is another. Someone who has never committed any offence and has no intention of doing anything wrong may be reasonably suspected of being a supporter on the basis of some heated remarks overheard in a pub. The question in this case is whether the United Kingdom should be a country in which the police can come to such a person’s house and take him away to be detained indefinitely without trial.The technical issue in this appeal is whether such a power can be justified on the ground that there exists a “war or other public emergency threatening the life of the nation” within the meaning of article 15 of the European Convention on Human Rights. But I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.

The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of “war or other public emergency threatening the life of the nation”, accurately states the conditions in which such legislation has previously been thought necessary.

[…]

Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. When Milton urged the government of his day not to censor the press even in time of civil war, he said:

“Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours”

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.

[…]

I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

Dr Reid’s farewell performance?

Dr Reid is understandably annoyed that about the three terror suspects who’ve just gone missing. Reassuring, though,

As the hunt for the three men continued, Home Secretary John Reid said they were not a “direct threat” to people in the UK.

Nevertheless,

Mr Reid also said ministers could suspend – or “derogate” from – parts of the European Convention on Human Rights to allow tougher control orders to be imposed in future.”We will consider other options, which include derogation, if we have exhausted ways of overturning previous judgments on this issue,” he said.

Now, this is a bit puzzling. People will recall that these control orders were introduced after the Law Lords ruled against Part 4 of the Anti-Terrorism, Crime and Security Act 2001, whereby David Blunkett had given himself the power indefinately to lock up foreigners he suspected (but could not prove) were terrorists. This involved ‘derogating’ from Article 5(i) of the European Convention on Human Rights (habeas corpus, fair trial and suchlike), which you’re allowed to do under Article 15:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law

Note the two preconditions —

war or other public emergency threatening the life of the nation

and

to the extent strictly required by the exigencies of the situation

While the Lords agreed — possibly surprisingly, since no other signatory to the ECHR had found it necessary to derogate, and we have frequently been told, have we not, that Britain’s foreign policy has nothing whatsoever to do with any risk of terrrorism we may face — that we were, indeed, facing a ‘public emergency threatening the life of the nation’, they thought that banging people up in Belmarsh was rather more than was ‘strictly required by the exigencies of the situation.’ Which is why we’ve got these ‘non-derogating’ orders that Dr Reid finds so unsatisfactory. (This account is based on an excellent lecture by Lord Phillips, the Lord Chief Justice, last year on Terrorism and Human Rights, should anyone want to go into the subject in more detail).

To be fair, there were various other flaws in David Blunkett’s stab at the problem (the Lords thought it illogical that it only applied to foriegners and not to Brits, and also thought it illogical that the detainees were free to leave the country at any time), so I can see that their Lordships might take a different view of some new regime. But go to the Lords it assuredly would, and there’s every chance it would be struck down again, not least on the basis that the escape of three men who the Home Secretary doesn’t consider ‘a “direct threat” to people in the UK’ fits too well with ‘to the extent strictly required by the exigencies of the situation.’

Such a proposal would doubtless run into opposition from many quarters, not least from Sir Ken Macdonald, the Director of Public Prosecutions, who told the Criminal Bar Association in no uncertain terms this January,

Terrorism is designed to put pressure on some of our most cherished beliefs and institutions. So it demands a proactive and comprehensive response on the part of law enforcement agencies. But this should be a response whose fundamental effect is to protect those beliefs and institutions. Not to undermine them.So, although a development in the role of the security services and the police is essential and desirable in this context, I believe an abandonment of Article 6 fair trial protections in the face of terrorism would represent an abject surrender to nihilism. It would represent defeat.

All this, of course, is almost certainly academic; it seems to me a bit unlikely that Dr Reid, who’s said he’s going at the same time as is Blair, is going to be allowed to saddle the incoming Prime Minister with the political consequences of derogating from the ECHR or his successor with getting through yet another anti-terrorism bill which will almost certainly end up in a dubious fight in the Lords, just because he wants to distract attention from the fact he can’t keep an eye on these chaps who’re apparently dangerous enough to need control orders imposing on them but don’t pose ‘”direct threat” to people in the UK’ (no, I can’t quite work that out, either).

I know that there are apparently fears they might make their way to either Iraq or Afghanistan, without passports, there to take up arms against British soldiers, but I don’t really see that they can make things much worse in either place than already they are. Indeed, it could be argued that this would be a desirable outcome, since if they survive the experience, if we catch them we can charge them with treason. But really, this is just Dr Reid blustering, yet again, and telling everyone that it’s everyone’s fault but his when something goes wrong with everything he touches.

Only just over a month to go, though.

Latest Madness from HMG

A bit belated, but I couldn’t let this monstrous proposal go without comment, though:

Council workers, charity staff and doctors will be required to tip off police about anyone whom they believe could commit a violent crime, under secret Home Office plans.

Well, that’s just about everyone in the country, since we’re all of us capable of committing a violent crime under the wrong circumstances. Fortunately, for most of us these circumstances don’t arise.

Apparently, though, the idea is to be a bit more selective:

Danger signs used to identify an individual as a potential perpetrator might include a violent family background, heavy drinking or mental health problems. A potential victim might come to the attention of the monitoring agency on seeking treatment for stress-related conditions from a GP.

Right, so someone trying to take the difficult step of admitting he needs help with his drinking and his depression as a result of a difficult family situation and seeking help from his GP now has to take into account the risk that his GP will be under a statutory obligation to inform the police. What the police are supposed to do with this information is anyone’s guess.

The proposal’s ludicrous. It seems the document’s author

admits that a number of issues need to be resolved, including what should trigger an initial report and what should count as a serious violent crime.

Well, yes. That is a bit of a problem. One of my favourite pieces of legislation, the dear old Criminal Justice Act 2003, has a shot at defining them, and tells judges what they’re supposed to do when people have actually been convicted of committing them. Essentially, if you’re convicted of one of a number of offences, the Court has to undertake a risk assessment before you’re sentenced and, if the sentencing judge concludes that you present a serious risk of causing serious harm to people in the future, he’s required to sentence you in a particular manner. That, as the Court of Appeal noted, in the case of R v Lang, in which the Appeal judges made an initial stab at making sense of how this works in practice, can get a bit tricky. The judgement concludes, after 150-odd paragraphs rehearsing the facts of actual cases where people had been sentenced under these provisions and trying to work out if the relevant bits of the CJA applied — and, take it from me, it’s complicated — with the comment:

It would be inappropriate to conclude these proceedings without expressing our sympathy with all those sentencers whose decisions have been the subject of appeal to this Court. The fact that, in many cases, the sentencers were unsuccessful in finding their way through the provisions of this Act, which we have already described as labyrinthine, is a criticism not of them but of those who produced these astonishingly complex provisions. Whether now or in the fullness of time the public will benefit from sentencing provisions of such complexity is not for us to say. But it does seem to us that there is much to be said for a sentencing system which is intelligible to the general public as well as decipherable, with difficulty, by the judiciary.

The author of this crack-pot idea, though, envisages placing a legal obligation on GPs to undertake a similar exercise to the one the judiciary finds so difficult, and then to break their duty of patient confidentiality if they reach certain conclusions. How on earth you’d go about prosecuting a GP who you thought hadn’t fulfilled this obligation is an utter mystery, by the way.

The more I think about it, the more insane the scheme appears. Chap goes to his GP to discuss his problems. GP is alarmed and says, ‘I’d like to refer you for some help with anger management and with alcohol abuse.’ Chap agrees. What’s the point, then, of bringing in third parties?

Alternatively, chap doesn’t agree, or attends the sessions for a while and gives up. Everyone now alarmed, but what do they do? If we’ve actually convicted someone of a crime, then there are sanctions to make him cooperate; breach his probation and re-sentence him (or activate his suspended sentence), or recall him to prison if he’s out on licence. But we can’t do that if we just suspect he might do something illegal in the future, can we? Well, yes, I know about control orders, so probably this government wouldn’t see any problems, but the courts might.

The whole idea seems inspired, if that’s the right word, by the thinking behind the National Children’s Database; keep tabs on people and focus multi-agency intervention in an attempt to head off potential problems in the future. And, as the ArchRights blog has frequently pointed out, one reason for keeping a close eye on what the government do to children is that they’ll probably try to do it to adults, too, sooner or later.

Seems typical of this government’s thinking; at some level it regards all of us as both children to be guided and as criminals who just haven’t got round to committing a crime yet, but probably will do if someone doesn’t stop us.

The justifications for this wheeze bear looking at, too. Inevitably, the Soham murders and the murder of Victoria Climbié are quoted as examples of why we need more collection and sharing of information.

I can never understand why that is. As I recall, and if anyone disagrees, I’ll dig out the official reports into both cases and go through it in detail, in neither case was the problem ‘we didn’t have enough information’. In the Climbié case, the problem was, on the contrary, the Social Services department had plenty of information and complaints, but didn’t follow it up properly. In the Soham case, it was, again, people not doing their jobs properly — references not being properly checked, criminal records inquiries not being conducted properly, Hull Police not recording complaints and information received about Huntley properly,so no one investigating one of the many complaints about him never got the full picture, because no one understood the computer system and because they’d completely misunderstood what they could and couldn’t do under the Data Protection Act, and so on.

If everyone concerned had done their jobs properly — or even if some of them had, certainly in the Soham case, then the murders could probably have been avoided. And if organisations can’t even supervise and manage their own staff properly, then I don’t see why anyone expects them to do particularly grand job of supervising and managing the general public.

And, again inevitably, we get told that

the Home Office has its duty of public protection as its top priority.

This sounds all very worthy, until you think it through. It might well be the Home Office’s top priority, since the Home Secretary carries — does his best to avoid carrying, more like — the can when something goes wrong, but most of us don’t live our lives on the basis that protecting ourselves, or being protected by others, from criminals is our top priority. It’s one of them, certainly, but my main worry in life certainly isn’t that I might become a victim of crime and that, in consequence, I’d better do everything I can, no matter how irksome or disproportionate, to avoid it. In fact, I’d think anyone who did live his life primarily on the basis he must at all costs avoid the risk of falling victim to crime was rather odd.

This is, of course, only a leaked first draft, and the Home Office say

These proposals are still in development and no decisions have been made

which probably (I hope) means they were never meant to see the light of day; it’s not unusual, as I understand it, to start with draft proposals so extreme and unworkable that they’ll never be implemented, as part of a method of seeing what’s, in fact, acceptable and practicable and what isn’t. But it’s worrying people’s minds in the Home Office seem to be running on those lines.

EU proposals on racism and xenophobia: worrying but not for the obvious reasons

Great concern from various bloggers, not least Devil’s Kitchen (who’s collating reactions) about the new EU proposals on combating racism and xenophobia (pdf).

My initial reaction is that people are certainly right in being extremely concerned about this but they’re getting concerned for the wrong reasons.