Jacqui Smith – 2008 Speech at the Intellect Trade Association

Below is the text of the speech made by Jacqui Smith, the then Home Secretary, on 16 December 2008.

Today I’d like to address one of the most pressing questions we face as a modern society – how we secure our rights and liberties as individuals, at the same time as ensuring the wider protection of all in our society against terrorism, crime and disorder.

Balancing these individual and collective rights has always been a key responsibility of government. And in an era of rapid technological change, it is right that we should constantly satisfy ourselves that we have got the balance right.

Looking back over the year, we’ve seen the question raised in some new – and it’s fair to say, peculiar – ways.

In June, the MP for Haltemprice and Howden booked himself a footnote in the history books by resigning from parliament and the Conservative front-bench, only to return to the Commons a month later.

And one night in April – less than a mile from here, just off Oxford Street – the artist Banksy left his calling card, with a piece of 30 foot high graffiti that proclaimed ‘ONE NATION UNDER CCTV’.

Eight months later, it’s still there – with a CCTV camera watching over it. And while it’s probably done wonders for the value of that gable wall, we’re entitled to ask how much this effort, and others like them, have hit the right target.

A nation under CCTV?

Are we, really, a nation under CCTV? Do we, today, live in what critics call a surveillance society?

I don’t believe so, not for one moment. But I welcome the debate. And while not condoning graffiti per se, I understand the need to keep revisiting these issues in an open and democratic society.

We are – all of us, as citizens, consumers, businesses and government – now presented with a host of new ways to capture, analyse and use data.

And there are clear benefits:

– retailers, banks, and insurance companies delivering more personalised and efficient services

– nurseries using online webcams to reassure parents that their children are in good hands

– sat nav technology making people’s everyday lives easier, whether it’s working out the route of a journey or accessing information from your mobile phone

– strengthening the frontline against crime, with handheld computers and mobile fingerprint devices meaning the police can spend more time out of the station

In the space of a century, we have moved from setting up the first fingerprint branch in Scotland Yard in 1901 to the regular use of DNA today to extend and backdate the ability to investigate crime.

To put it another way, we have seen elementary policing progress from the deductions of Sherlock Holmes and his dear sidekick right through to the forensic use of the discoveries of Francis Crick and Dr Watson’s namesake.

These developments have brought opportunities and challenges in their wake.

In some cases, like with DNA or the use of covert surveillance powers, it means rethinking our regulations and ensuring high standards of safeguards.

In other cases, as with the rapid growth of online communications, new technology demands that we find new ways to maintain the protections we currently rely on for the public good.

Early in the new year, we will consult on how to best continue tracking information relating to serious and organised crime and terrorism in this new environment.

As today’s verdict in the trial for the murder of Rhys Jones has shown, communications data can form an important part of prosecution evidence. And indeed this information – on the fact that communication has taken place, but not on its content – plays a role in some 95% of all really serious criminal cases, such as murder, drugs trafficking, and child sex abuse.

If this capability isn’t to be lost due to the growth of online communications, it’s clear that we need to respond and adapt to technological change.

As always, of course, new technology presents opportunity gaps for criminals as well – a set of early adopters if ever there was one, always on the look-out for new ways to exploit weaknesses.

Identity fraudsters, child pornographers, and international terrorists – all have made extensive use of the internet. And, our response – working with industry on the responsible use of social networking sites, for example, or to develop filtering software – has had to adapt constantly to stay ahead of the game.

One thing is clear. The eager take-up of innovation in the consumer sector does not mean that government itself can proceed without caution, or without robust safeguards in place.

Common sense guidelines

The public expect us to make use of technology to protect them – and that is a clear priority for me. We would be failing in our duty to do otherwise.

When we talk about fingerprints…CCTV cameras…DNA swabs…or scanning machines at airports…I think that people instinctively understand that these technologies, used properly, are vital tools against crime, terrorism and illegal immigration.

But I also recognise the absolute necessity of getting the balance on privacy right.

And so today I want to set out some basic tests, and set out the direction of travel for some of our key policies.

Are there appropriate safeguards in place – to keep data secure, for example, and to provide independent oversight where appropriate – as we have progressively built into how the National Identity Scheme operates?

Are we being as transparent as possible – and as with ID cards, how do we provide individual citizens with the right level of choice and control?

Where surveillance powers are used, are they kept in proportion to the damage and the threat they are seeking to prevent?

And perhaps the toughest question of all – does it stand up to the test of common sense?

Safeguards, openness, proportionality and common sense.

For the public to have confidence that we will protect them and protect their rights, it is our responsibility as a government to ensure that these standards apply even as technology evolves.

RIPA consultation

Ten days ago, on a trip to Tower Hamlets, I saw how an entire neighbourhood had had their daily lives made a misery for months by the behaviour of people in one particular flat – until the local council and the police got a premises closure order and boarded it up. That order was only made possible because covert CCTV had helped capture the evidence of anti-social behaviour and crime.

There are literally hundreds of cases like this, where the police and local authorities access investigatory powers like covert surveillance and communications data under RIPA – the Regulation of Investigatory Powers Act – and use these powers fairly and squarely to help law-abiding people to hit back against the yobs and bring criminals to book.

But even as we recognise the usefulness of RIPA, we have to be sure that it is being used properly. Even with the clear safeguards that RIPA requires for the use of communications data and covert surveillance, I am concerned at the level of misunderstanding there is about what these powers are, who has access to them, and what they can be used for.

Let’s be clear. RIPA is not anti-terror legislation, as is sometimes suggested. RIPA limits the use of investigatory powers, and makes sure they are used properly and proportionately. The legislation provides for oversight by independent commissioners and routes for individuals to complain if they feel the use of these powers has been unjustified.

While most of the investigations local authorities carry out are important – like protecting the public from dodgy traders, trapping fly tippers who dump tonnes of rubbish on an industrial scale across the countryside, or tackling the misery caused by noisy and disruptive neighbours – there are clearly cases where these powers should not be used.

I don’t want to see them being used to target people for putting their bins out on the wrong day, for dog fouling offences, or to check whether paper boys are carrying sacks that are too heavy.

Local council requests amount to a tiny proportion of the overall numbers – but nonetheless, it’s essential to make sure we’ve got the balance right. And it’s these tales of ‘dustbin Stasi’ and examples of excessive intrusion that give the responsible and respectable use of the powers a bad name.

Early next year, we will consult on a number of proposed changes to RIPA – and we will look at:

– revisions to the Codes of Practice that come under the Act;

– which public authorities can use RIPA powers; and

– raising the bar for how those powers are authorised, and who authorises their use.

One question I will be asking of local authorities is whether the powers are authorised at a high enough level. Would it reinforce public confidence, and avoid frivolous use of the powers, if they could only be done with the consent of a senior executive, and subject to a form of oversight from elected councillors?

I am determined to maintain robust powers to tackle crime and disorder. But to allay public fears of excessive intrusion, and to keep people’s trust and confidence in the wider necessity of these powers to tackle disorder, crime and terrorism, I am equally clear that we have to measure these efforts against our standards for safeguards, openness, proportionality and common sense.

DNA

The same principles apply to DNA evidence. Having looked at this area particularly closely over the past year, I’ve found there are few areas where the balance between rights and protections comes into such stark relief as on DNA.

The recent European Court judgement in the S and Marper case has put the issue back in the spotlight.

Many of you will have seen the response of victims’ families to the recent ruling – notably the family of Sally Ann Bowman, whose killer was convicted as a result of DNA taken after he was arrested following a pub brawl and subsequently acquitted.

I have real sympathy for all those with concerns that any move could undermine a system that helped trap Sally Ann’s killer. And I want to reassure Sally Ann’s father that I will not let that happen.

In this and other cases, we’ve seen convictions for serious crimes of culprits who had had their DNA taken and retained for a previous crime where they were arrested, but not convicted.

In May 2002, Kensley Larrier was arrested for the possession of an offensive weapon. His DNA was taken and loaded to the DNA database, although the proceedings were then discontinued. Two years later, DNA from a rape investigation was speculatively searched against the database and matched his sample. This was the only evidence in the case, and when found guilty Larrier received a 5 year custodial sentence and was entered on the sex offenders register for life.

These cases and others tell me that the DNA database is crucial to public protection. It not only helps to lead to the guilty. It helps to prove innocence and to rule people out as suspects.

There is more we can do to strengthen the dividing line between guilt and innocence. For those who have committed a serious offence, our retention policies need to be as tough as possible.

But for others, including children, I am convinced that we need to be more flexible in our approach.

The DNA of children under 10 – the age of criminal responsibility – should no longer be held on the database. There are around 70 such cases, and we will take immediate steps to take them off.

For those under the age of 18, I think we need to strike the right balance between protecting the public and being fair to the individual.

There’s a big difference between a 12 year old having their DNA taken for a minor misdemeanour and a 17 year old convicted of a violent offence, and next year I will set out in a White Paper on Forensics how we ensure that that difference is captured in the arrangements for DNA retention.

We will consult on bringing greater flexibility and fairness into the system by stepping down some individuals over time – a differentiated approach, possibly based on age, or on risk, or on the nature of the offences involved.

That may mean letting the 12 year old I mentioned come off the database once they reach adulthood. And it could mean limiting how long the profiles of those who have been arrested but not convicted of an offence could be retained.

We are also re-examining retention arrangements for samples. Physical samples of hair and saliva swabs that represent people’s actual DNA are much more sensitive than the DNA profile that is kept on the database – which only uses a small part of non-coding DNA.

This was a key point flagged up when we set up the Ethics Group under the National DNA Database Strategy Board, and we will pursue improvements to the safeguards around the handling of samples.

These changes will see some people coming off the system. But as I said, we need to strengthen the dividing lines between innocence and guilt – and so I want to do more to ensure we get the right people onto the system as well.

No matter when they were convicted, I want to see the most serious offenders on the database. That’s why we are working with the police to increase the number of convicted offenders on it, starting with those now serving time in prison for rape and murder. And we will also look at whether we need to extend powers so that the police can take DNA samples for a longer period after conviction and from those convicted overseas when they return to the UK.

As I said at the beginning, the use of DNA in investigations is one of the breakthroughs for modern policing. And it’s an area where I’m proud to say that Britain is leading the world.

The strengths of the DNA database can only be safeguarded if they enjoy the confidence and trust of the public – and so the changes we will set out in the White Paper will deliver a more proportionate, fair and common sense approach.

CCTV

It may disappoint Banksy to hear it, but one area where I am quite clear that we have the confidence and support of the public is on the use of CCTV cameras.

I mentioned the use of CCTV to help evict noisy neighbours. On a wider scale, CCTV has helped to reclaim our town centres and public spaces for the law-abiding majority. It’s playing a key role in crime prevention and in reducing the fear of crime – in turn bolstering the confidence of communities to stand up to vandalism and anti-social behaviour.

And it was footage from CCTV cameras, of course, that was crucial in the prosecution of the men who planned suicide bombings on public transport in London on 21 July 2005.

Up and down the country, MPs and local councillors are inundated with requests for more cameras on the streets.

And on the boulevards, too, perhaps – with President Sarkozy now arguing that France should follow our lead and increase the use of CCTV in public areas.

With the growing number of business-related CCTV cameras in operation, there are clear opportunities for closer working in the fight against crime.

I want to see more police forces follow the lead of Cheshire constabulary, who are now mapping out the location of CCTV cameras in shops and offices in their region, so that if they do need to access footage for a serious crime like murder or child abduction, they can get to the source quickly before the evidence is lost.

Conclusion

It’s by using new technologies and new resources in an innovative way – particularly when they’re combined with tried and tested approaches – that we can keep ahead in the fight against crime.

And where we can demonstrate that different arms of the state can tackle those who wilfully persist in crime or anti-social behaviour – like checking persistent offenders against TV Licensing and DVLA databases, and running checks for benefit fraud and council tax payments – I think there are few who would argue that it was not common sense, proportionate or public-spirited to do so.

At a time when technology is moving more quickly than ever before, and in an age where the public has never been better informed and more rigorous in their scrutiny of authority, it is fitting that the age-old question of how we get the balance right between individual and collective protections should continue to be asked.

This afternoon, I have outlined how we will continue to set the highest standards for ourselves in recalibrating that balance for today’s world, and how we will ensure that fair rules continue to be fairly applied.

Over the next few months, I want to engage the public in a discussion based on the protections and security we all derive from getting this balance right.

The public are our best defence against crime and terrorism. But I know they will not thank us if the systems we design to protect them are too intrusive. And so I will continue to put safeguards and openness, a sense of proportion and above all common sense, at the heart of everything we do.

Thank you.