Monday, 10 August 2009

Free to Choose?

I read this post at Marmalade Sandwich yesterday, in which Young Mr Brown describes ACPO's advice to police forces to ignore - for now - the European decision that our current policy on retaining the DNA samples of the innocent is illegal. My initial reaction was that it was reasonable to give the Home Office time to work out an appropriate replacement for the current scheme, and to hedge their bets in the interim.

Then, during the day, I thought further. I realised that when the Home Office change a regulation, I am expected to implement it immediately. Yes, in theory there is a consultation period, but only a tiny minority of the new offences and regulations that spew forth from this government actually come to our attention in advance. In any case, when (as here) the change in the law arises from a new Court decision offering an interpretation of a statute, I am not just expected to comply immediately with the new interpretation - I am required always to have complied.

What is more, the State was a defendant in the European case in question. They accordingly had ample time to see which way the wind was blowing. They had ample time in which to make representations to the Court to explain what their reasonable and justifiable needs were. If the judgement does not address certain questions, then some blame must lie on the defendant that did not ask them.

So, after reflection, I have reached the same position as Young Mr Brown; that it is not right that Police Officers (however senior) should pick and choose which laws they think they should follow - precisely because I cannot pick and choose. I am tempted, however, to explain politely to any officer that stops me in the near future that I am not yet observing that law, pending a decision as to my policy response to the issues that it raises.

Our police are meant to be "citizens in uniform"; it is time for them to either accept this or stop citing it.


  1. Reminds me of St Thomas More's words to William Roper in A Man for All Seasons (based on a real quotation I can't now locate):

    More: What would you do? Cut a great road through the law to get after the devil?

    Roper: I’d cut down every law in England to do that!

    More: Oh? . . . And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? . . . This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down . . . d’you really think you could stand upright in the winds that would blow then? . . . Yes, I’d give the Devil benefit of law, for my own safety’s sake.

    If the police break the law, what is their authority for upholding the law?

  2. Albert, what an excellent profound quote.

    Patently, it is not clear what the reasons are for the ACPO's advice. Putting aside the issues about the ACPO itself, it appears that the Ruling is still being discussed and presumably once the DNA is destroyed, there would be no way of recovering it. I honestly suspect there is more to this and that the judgement may be have been qualified or open to interpretation in some way.

    Catching criminals is a good thing so I do not wish to hamper the ability of the police. Yes, I know these individuals have rights too. Also, albeit this is no excuse and it is politically incorrect to say it, I think we British are often too effective at upholding the letter of European/ECHR laws! France, Italy and Greece appear to have a far better 'open parachute' approach in this respect.

  3. Well we did write the ECHR so I think we would have a bit of gall laying it aside. Presumably ACPO are waiting for new UK legislation which will allow police to keep the DNA samples which have been kept unlawfully. It is far too easy to hide behind broad and scary arguments like "catching criminals". The point about the DNA is that it is the DNA of people who have not been convicted which is being kept unlawfully.

    The crux of the matter is that under moral relativism we have forgotten the most important part of the justice system which is the presumption of innocence.

    There are very good reasons for the police to operate within the law rather than above it, and for the police to have no say in the setting of the law. Bliar changed all that - to our severe detriment.

  4. Thank you Blue - exactly my thoughts, but put somewhat more clearly!

    Even *if* it is right to keep the samples pending new rules, it is (quite emphatically) not for the Police to decide this. It would be for the Home Office to issue a new rule or direction, for example, saying that samples were to be kept until a certain date by which time a final ECHR-compliant rule would be in place. That action could then be scrutinised in Parliament on our behalf.

    The Police have been told by a Court that they cannot keep these samples. You can have a whole series of separate debates about the Court, the law that it applies, the terms of the decision, the effectiveness of Parliamentary scrutiny, and so on, but these are all side issues. Worthy of debate they may be, they do not affect the central point - which remains that the Police have been ordered to do something by a Court and they are not doing so. If any of us were to do that, it would be contempt and imprisonable as such.

    ACPO's instruction brings to mind the response "Who the **** do you think you are?"