Earlier this month you may have read about some police forces gathering DNA samples from gay men who have been convicted of victimless crimes under repealed anti-gay laws.
After the media attention and action taken by Peter Tatchell, 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to Operation Nutmeg and the DNA sampling of gay and bisexual men convicted of consenting behaviour under the now repealed offence of gross indecency.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.
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.”
You can view the full article here on the Peter Tatchell Website
The published guidelines from (ACPO) can be be found here: http://petertatchellfoundation.org/images/ACPO-Operation-Nutmeg.pdf
As a result of the new guidelines Devon and Cornwall Police have issued the following statement:
The Protection of Freedoms Act 2012 and DNA Sampling
Devon and Cornwall Police recognise that It is unacceptable that men have been living for decades with criminal records for consensual sex. The Government has taken concrete action to remove this slur on their character and allow those affected by this to apply for their convictions to be disregarded. We would encourage individuals wishing to address any conviction to contact the Home Office via: www.homeoffice.gov.uk/historic-convictions
- After successful application to the Home Secretary, previous convictions (including cautions, warnings and reprimands) for acts of consensual sex (under sections 12 and 13 of the Sexual Offences Act 1956 and some other provisions) will no longer be disclosed in Court proceedings or appear on a person’s DBS Certificate (formerly CRB)
- Where an application is approved, the Home Secretary will write to data controllers to notify them of the ‘disregard’ and request the deletion of relevant records. Where physical deletion of a record is not possible, records must be annotated so as to prevent subsequent disclosure.
The issue of DNA.
DNA is a great aid to the police in preventing and detecting crime but we need to ensure the right people are on the database. Under the Protection of Freedoms Act 2012, only those convicted of a criminal offence will have their DNA retained indefinitely. The Protection of Freedoms Act ends the indefinite retention of DNA belonging to people not convicted of a criminal offence except in very specific circumstances where there is a higher risk of harm to the public from certain individuals.