London – 23 January 2013
Chief Constables in England and Wales have been issued with new guidance relating to Operation Nutmeg and the DNA sampling of gay and bisexual men convicted of consenting behaviour under the now repealed offence of gross indecency.
The new advice comes from the Association of Chief Police Officers (ACPO). It reminds Chief Constables that DNA samples are only supposed to be taken from “individuals convicted of the most serious offences” and should not be taken from men whose “only” conviction is gross indecency. It urges them to “review” any samples they have already taken and, if appropriate, ensure their “destruction.”
A copy of the new ACPO guidance follows below and here: http://bit.ly/YmJMm7
“The revised guidelines follow our research which shows that police have taken DNA samples from gay men in West Yorkshire, London, West Sussex, Northumbria, West Midlands, Manchester and Essex. The stated reason for the sampling was a conviction for gross indecency – an offence that no longer exists – in many instances dating back decades,” reports Peter Tatchell, Director of the human rights advocacy organisation, the Peter Tatchell Foundation.
Last week, Mr Tatchell wrote to ACPO stating:
“It might be helpful if the ACPO guidance was revised and reissued. I don’t think there is any justification for the inclusion of gross indecency in the list of DNA qualifying offences. These men are not a threat to the public.”
Mr Tatchell confirms:
“In my subsequent discussions with Amanda Cooper of ACPO, I urged the issuing of new advice to all police forces. I am delighted that APCO has taken on board our concerns and moved swiftly to send out updated guidance.
“My only reservation is that a conviction for consenting gross indecency between adult men should not be listed as a DNA sampling qualification, regardless of whether it is a sole conviction or one of several convictions. Because it is a victimless offence it should not be included in Operation Nutmeg at all,” added Mr Tatchell.
Referring to past consensual offences involving sex between men, such as gross indecency, the new ACPO guidelines state: “Forces should not seek to obtain a DNA sample from subjects who only have this conviction on their record.”
ACPO goes on to stress: “…the need for each Operation Nutmeg individual to be dealt with on a case by case basis. Having a legal power to take a sample does not necessarily mean that it may be proportionate to do so under Operation Nutmeg. As stated in the original guidance a risk assessment is strongly recommended to be undertaken by each Force in relation to every decision to sample an Operation Nutmeg individual…forces are reminded to consider the proportionality requirement and perhaps seek a more senior level oversight on any sampling decision.”
The ACPO advice concludes by recommending that every police force does a “review” of all instances where they have taken DNA from men convicted of gross indecency and other now abolished anti-gay laws.
It recommends: “If in any instance a different outcome would be deemed appropriate e.g. not to have sampled, as Chief Constable you are able to approve the removal of the DNA profile and the destruction of the sample.”
The new guidance comes from Assistant Chief Officer, Amanda Cooper, of Thames Valley Police, who is Chair of the DNA Strategy Board of the Association of Chief Police Officers.
“The men who contacted the Peter Tatchell Foundation were convicted of consensual gross indecency with other men, in many cases dating back to the 1980s under a homophobic law that no longer exists.
“The purpose of Operation Nutmeg is to collect DNA from persons who have committed serious violent and sexual offences, such as murder, rape and child abuse. It is supposed to focus on individuals who pose a risk to the public.
“Men convicted of consenting gross indecency with other adult males are no danger to the public. None of them should have been subject to DNA sampling.
“Manchester police have apologised. Other forces have not, so far.
“Gay and bisexual men who have been convicted of consenting behaviour under now abolished discriminatory, homophobic laws can apply to the Home Secretary to have their convictions disregarded. I urge them to do so,” said Mr Tatchell.
The Home Office website explains how to apply to have a conviction disregarded. See here: http://bit.ly/UH40of
Association of Chief Police Officers
FOR THE ATTENTION OF:
ALL CHIEF CONSTABLES
21st January 2013
OPERATION NUTMEG REVIEW OF S.12 AND S.13 OFFENCES FROM THE 1956 ACT
I am writing to you in my capacity as Chair of the DNA Strategy Board and further to my letter dated 17th January 2013.
Recently Operation Nutmeg has received some media attention with concerns raised about it specifically targeting gay men. This issue relates to those individuals on the Operation Nutmeg list who have certain section 12 and 13 offences under the Sexual Offences Act 1956 as a sole offence. The purpose of Operation Nutmeg is to ensure individuals convicted of the most serious offences are on the National DNA Database in order to prevent and detect such crimes. There is no intention to specifically target any community.
It is important to remind all involved in Operation Nutmeg of what is stated in the guidance covering section 12 and 13 of the Sexual Offences Act 1956.
“It should be noted that under section 92 (Protection of Freedoms Act) of this Act certain convictions under s.12 and s.13 of the Sexual Offences Act 1956 will be disregarded on application to the Secretary of State. Therefore Forces should not seek to obtain a DNA sample from subjects who only have this conviction on their record.”
I have written separately to Forces Operation Nutmeg SPOC.
Not all offences under s.12 and s.13 of the Sexual Offences Act 1956 involve gay men and some of the offences include non-consensual acts and those involving children. Therefore it is not possible for ACPO Criminal Records Office to remove the individuals who have s.12 and s.13 offences from the Operation Nutmeg list. This is because it would be necessary to research every individual’s criminal record centrally. This research is expected to be conducted by individual forces once they have been provided with the list of Operation Nutmeg individuals living within their force area. This further highlights the need for each Operation Nutmeg individual to be dealt with on a case by case basis.
Having a legal power to take a sample does not necessarily mean that it may be proportionate to do so under Operation Nutmeg. As stated in the original guidance a risk assessment is strongly recommended to be undertaken by each Force in relation to every decision to sample an Operation Nutmeg individual. This risk assessment should include the Modus Operandi of the offence. This may require searching microfiche records. If this information is still not retrievable due to the age of the offence then forces are reminded to consider the proportionality requirement and perhaps seek a more senior level oversight on any sampling decision.
The Activity Process Map (Appendix F) of the Operation Nutmeg guidance shows that the risk assessment is recommended to take place before writing to any individual. Appendix K – the Nominal Research Form – allows for the recording of this risk assessment and the decision making process. This applies for the approach to sampling of ALL Operation Nutmeg subjects. Following the risk assessment the Force may come to the decision not to sample an individual.
From the media report it appears there may be a small number of s12 and s13 subjects who have been sampled. It is important to ensure that the above risk assessment process was followed in such cases. As such I would recommend that you review any such cases involving s.12 and s.13 offences of the Sexual Offences Act 1956 in order to ensure that you are satisfied with the information considered and the decisions taken. If in any instance a different outcome would be deemed appropriate e.g. not to have sampled, as Chief Constable you are able to approve the removal of the DNA profile and the destruction of the sample. Should you have any such instances I suggest your SPOC contacts Operation Nutmeg ([email protected]) to facilitate this and ensure the appropriate destruction processes are followed.
Should you have any further queries in relation to Operation Nutmeg I can be contacted through my staff officer Sgt Nicole Murphy [email protected]
Chair of the DNA Strategy Board
Association of Chief Police Officers
Director of Information, Science & Technology, Thames Valley Police