Death, dads, texts and taxes

Catching up on reading before I go on The Great Road Trip To Melbourne with Kruger and Co ...

Martin Daunton's lucid Trusting Leviathan: The Politics of Taxation in Britain 1799-1914 (Cambridge: Cambridge University Press 2001) and Just Taxes: The Politics of Taxation in Britain 1914-1979 (Cambridge University Press 2002)

Rachel Potter's 'Obscene Modernism and the Trade in Salacious Books' in 16(1) Modernism/Modernity (2009) 88-104 - incidental reading for the 'Forbidden, Hidden & Censored Books' conference in July next year - and the more insightful 'Dancing with the Devil: Publishing Modern Music in the Third Reich' by Kim Kowalke in (2001) 8(1) Modernism/Modernity 1-41 [PDF] 

Jerome Karabel's The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale and Princeton (Houghton Mifflin, 2006), of particular interest for comments on the construction of identity, the assessment of intangibles such as 'character' and mechanisms for exclusion of 'undesirables' (eg people who were described as "hebrews", "negroes" and "intellectuals")

Rachel Fuchs' Contested Paternity: Constructing Families in Modern France (Johns Hopkins University Press, 2008)

I've meanwhile been struck by Hilary Mantel's comment at 10 in (2009) LVI(16) New York Review of Books 8-12 on Keith Thomas' The Ends of Life (Oxford University Press, 2009) that -

For every example, as Keith Thomas demonstrates, you can find a counterexample. Some will object that his book is a collage of quotations, a toy box, a magpie hoard: that it does not sustain a thesis. But Thomas' work has always been more about sharing knowledge than winning arguments. In any event, in the field of human behaviour, which is where he has located his efforts, truths are provisional and tentative.

Mantel notes Thomas' references to religious belief -

... many people had trouble envisaging the afterlife; an old Sussex lady on her deathbed, promised that she would soon be in paradise, said that she would rather stay in Lewes.

That sounds quite reasonable to me.

The Globe and Mail - in reviewing Beautiful Pigs: Portraits of Fine Breeds (St. Martin's, 2009) by Andy Case, photographs by Andrew Perris - notes that -

The young Berkshire is a naughty pig with a lively character. Its back is long and level, and it has a high-set tail with well-sprung ribs ... [It] is well up on its toes, enabling it to walk well.

Nothing like a naughty pig to lift the spirits after a wrestle with Bordieu!

Pigs are not malicious or miscreant. Quite the opposite. They are as intelligent and elegant as any animal out there (hygiene and eating habits notwithstanding), they are fiercely maternal, proud, brave, stubborn and sensitive creatures, and they are the source of civilization's greatest side dish (bacon).

Praise the Lord and pass the contribution

A reader's complained that I was rather cruel about practioners of the 'gospel of prosperity' and pentecostal belief systems (singing, shaking, speaking in tongues, exorcisms, bullying of deviationists, denouncing Bruce Springstein as "the high priest of satan"). We should apparently ignore critiques and memoirs such as Behind the Exclusive Brethren (Scribe, 2008) by Michael Bachelard and People In Glass Houses: An Insider's Story of a Life in and out of Hillsong (Black Inc, 2007) by Tanya Levin or criticism by Family Court judges. 

 I was thus interested to see today's SMH item - yes, the time of the year when the mass media are desperate for filler - reporting that newspaper's survey of belief [PDF]. The SMH quotes a response from Anglican Archbishop of Sydney, Peter Jensen, a vocal exponent of the 'gay = abomination' school, who claimed that the survey results show the religious instinct was universal.

There was no denying that increased numbers of people described themselves as non-believers, but this was no boon to the atheist cause, he said. "The decline of Christian faith does not lead to lack of religious belief; it just opens the way for superstition".

Quite so. Notions of a heavenly father with a deep personal interest in every sparrow (albeit a certain inattention regarding several million Jewish kiddies and oldies in the 1940s, not to mention Armenians, tsunami victims and so forth) and a virgin birth, proficiency in conversion of water into wine, resurrection etc etc are presumably scientific rather than mere vulgar superstition. 

 Nearly half of the 1,000 people polled by Nielsen for the SMH reported belief in psychic powers such as extrasensory perception. 41% believe in astrology. 34% believe UFOs exist. Women are supposedly much more likely to believe in God and other phenomena than men, with the exception of UFOs. 63% of the surveyed Australians "believe in God or a universal spirit". 24% do not believe in either God or a universal spirit. 50% reported that religion is "important or very important in their lives", although the survey did not indicate whether that importance was reflected in behaviour and "committed Christians" might of course behave in ways that their irreligious peers consider to be repugnant, indeed illegal. 88% of the faithful indicated that they were either absolutely or fairly certain in their belief. 29% reported that the Bible is "the word of God", "to be taken literally, word for word". (Bad news, presumably for people wearing blended fabrics of animal & vegetable fibre ... stand next to the witches and those who question the righteousness of owning slaves.) 

 63% believe in miracles and 51% claim to believe in angels. 53% believe in life after death; 56% in heaven and 38% believe in hell. 49% expressed a faith in "psychic powers such as ESP"; 41% believe in astrology. 37% of respondents believe in Satan, a tad more than the 34% who believe in UFOs and 22% who believe in witches. 

Regrettably there seem to have been no questions about Elvis or the peregrination of Santa Claus and the Tooth Fairy. The self-professed 'Christian' cohort was asked about specific beliefs regarding Christ. 94% of the cohort believed he was a real person who lived some 2,000 years ago, with 91% believing that he was the son of God but only 72% believing that the mother of Jesus Christ was a virgin. 32% of respondents believe in an evolutionary process "guided by God". 23% believe the Biblical account of the origin of human beings (ie Eve generated from Adam's rib and so forth), affirming that "God created human beings, largely in their present form, at one time in the last 10,000 years or so".

Blood, butchery and barristers

Two defamation decisions out today.

Daniel Snedden (aka Dragan Vasiljkovic) lost his defamation case against The Australian. Snedden had been accused of war crimes in the Balkan. He sued publishers Nationwide News Ltd (ie the local newspaper arm of the Murdoch conglomerate) over a story printed in 2005.

A jury found that the story had several defamatory meanings, including that Snedden condoned the rape of women. (Ethnic cleansing in the region of course featured rape of noncombatant boys and men, but we don't like to talk about that).

The NSW Supreme Court ruled in favour of Nationwide, after the publisher argued a truth defence.

Snedden, who has dual nationality, vowed to appeal. He commented that "We think anyone who read the transcripts and reads this judgement will consider it a disgrace. This is a gross miscarriage of justice". The Federal Court, in Snedden v Republic of Croatia [2009] FCAFC 111, earlier this year allowed an appeal against his extradition to Croatia. A Commonwealth government appeal in the High Court against that decision is under consideration, with observers commenting that if the appeal is unsuccessful the nation will be harbouring a citizen who has been found by an Australian civil court to have committed war crimes.

The SMH reports that -

The Supreme Court is satisfied he committed the war crime of torture, participated in organised rape and admitted committing a massacre during the Balkans war. But Daniel Snedden is free in the community despite attempts by the Croatian Government to extradite him for prosecution.

Also known as Dragan Vasiljkovic or Captain Dragan, he is accused of war crimes while commanding a Serb paramilitary unit in Croatia in the early 1990s and sued for defamation after The Australian reported in 2005 on his alleged conduct during the conflict. ... In the Supreme Court yesterday, Justice Megan Latham found a string of imputations were "substantially true" and Mr Snedden "was loose with the truth when it suited his purposes".

"The systematic abuse, humiliation and deprivation visited upon those whom the plaintiff sought to punish and subdue at the Knin fortress, the old hospital prison and the Sremska Mitrovika prison, was consistent with the plaintiff's stated aim to drive out non-Serbs from the Krajina [frontier]", Justice Latham said. The accounts of electrocution, regular beatings and mock executions, carried out at the behest of, or with the authority of, the plaintiff, were harrowing."

The judgement - not yet available on AustLII - notes disagreement about convictions for offences committed in Australia prior to Snedden becoming a paramilitary.

The Australian editorialised that -

IT was a good day for the freedom of the press yesterday when The Australian was not punished in the courts for publishing the truth. Our victory in a defamation case brought by former Serbian paramilitary commander Dragan Vasiljkovic, also known as "Captain Dragan", involved us conducting a quasi-war crimes investigation in the former Yugoslavia in order to defend ourselves in a civil court in Sydney. We incurred high costs in marshalling chilling testimony from Vasiljkovic's Croatian and Bosnian victims. To prove that he raped a woman and committed the war crime of torture during the war in the former Yugoslavia in the early 1990s meant we undertook work normally left to the criminal courts or The Hague, albeit with a less onerous burden of proof.

That we were compelled to take this course of action should concern anyone with a commitment to justice, press freedom and the public's right to know. After our 2005 publication of Vasiljkovic's actions, Croatia began pursuing him for alleged war crimes. Our report prompted a defamation case fought on Vasiljkovic's behalf by Clive Evatt QC. Common sense suggested any war crimes process should precede the defamation hearing. Instead, we were forced to defend our publication without assistance from Croatia, whose files remained closed to us.

It would have been easier -- and cheaper -- to settle but we had strong evidence to back a story that we believed was manifestly in the public interest. Our decision was vindicated by yesterday's judgment but we face further action from Vasiljkovic, who has taken another defamation case against us over similar allegations.

It is time for the Law Reform Commission to take a close look at the way defamation law is being played out since the capping of damages and consider whether this is leading to an increase in litigation. Defamation actions are expensive to defend and plaintiffs generally do not have to produce any evidence of an ability to pay costs if they lose.

Mainstream media outlets, like our own, accept the ethical responsibility to pursue issues in the public interest. It is our core business to reveal stories such as that of "Captain Dragan". But it is not clear the public interest is served when the blogosphere defames with impunity, while litigants target big media companies that continue to pursue their job of publishing the truth.

Meanwhile the Supreme Court has found in favour of Fairfax Media (publisher of the Sydney Morning Herald) and critic Matthew Evans, whose memoir recently featured in this blog.

They had been sued by Aleksandra Gacic, Ljiljana Gacic and Branislav Ciric, the owners of King Street Wharf restaurant Coco Roco, over Evans' September 2003 review of that venue. He referred to Coco Roco as "a bleak spot on the culinary landscape", slammed the food ("more than half the dishes" he tried were "unpalatable"), described the restaurant's overall value as "a shocker" and gave it a score of 9/20 (ie in the "stay home" category). Coco Roco went into administration in March 2004.

In the initial case leading barrister Clive Evatt alerted the jury that he had it on good authority that "defendants are stoned to death for defamation in Serbia". The jurors found that the review did convey imputations that the restaurant sold unpalatable food and provided bad service. However, that was not seen as defamatory. The jury also found that the review did not convey imputations that prices were excessive or that the owners were incompetent restaurateurs.

The 'Coco Rico trio' then appealed, arguing that what the jury found was unreasonable. In Aleksandra Gacic & v John Fairfax Publications Pty Limited & Anor [2006] NSWCA 175 [here] the NSW Court of Appeal agreed with that argument, finding that it was defamatory to say the food was unpalatable and the service bad. The appeal court referred the question of whether the newspaper imputed the owners were incompetent back for another jury trial.

Fairfax and Evans next appealed to the High Court, arguing that the Court of Appeal exceeded its powers in rejecting the jury decision. In 2007 the High Court ruled 6-1 in favour of the trio in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; 235 ALR 402 [here]. Justice Michael Kirby disagreed with the finding that no reasonable jury could find it wasn't defamatory to declare a restaurant sold bad food and offered poor service, perceptively commeting that on matters such as criticism of a restaurant's food and service, jurors were much more likely to reflect community standards than judges and that "astonishing as it may seem, judges may occasionally lack a sense of irony or humour".

The High Court found that the review conveyed three defamatory meanings -

that Coco Roco sold some unpalatable food, that it provided some bad service, and that the trio were incompetent restaurant owners because they employed a chef who made poor quality food.

Crucially, there are defences in dealing with those meanings. They were successfully raised when the dispute returned to the Supreme Court for further trial of the undetermined imputation, for consideration of any defences available to Fairfax and Evans, and for the questions of damages. Legal costs mounted and the trio had meanwhile been the subject of bankruptcy proceedings, eg Banov v Ciric [2008] FMCA 353 [here].

Justice Ian Harrison in the Supreme Court ordered the former restaurant owners to pay the legal costs of Fairfax and Evans. He found the defence of comment had been established in relation to the three meanings. He also found the defence of truth had been established in relation to the statement regarding some bad service.

Exit Big Liz

The Victorian Attorney General, Rob Hulls, has announced that from 1 January 2010 criminal legal proceedings in state law will be brought in the name of the Director of Public Prosecutions (DPP) rather than in the name of the Queen, ie the rather rich lady who is head of an established church, lives in another country and got her job (for life) by being her father's daughter.

Reference to the DPP rather than to Ms Windsor is not particularly revolutionary; she's already been removed in legal proceedings in Tasmania and Western Australia. The change - effected through the Criminal Procedure Act 2009 (Vic) - has, however, apparently caused some diehard monarchists to suffer deep distress: I had visions of them spraying the cornflakes over the doily or perhaps choking on a kipper as they read the sad sad news.

The Age (it's Christmas, after all, news is slow and devotees of the idiot box are suffering from Carbonhagen Fatigue) made a bid for attention by announcing that -

Monarchists and republicans have gone to war over the State Government's decision to dump the Queen from Victoria's legal system.

Supporters of the Queen yesterday accused Attorney-General and Acting Premier Rob Hulls of trying to transform Victoria into a republic by stealth.

But Mr Hulls, an avowed republican, hit back, saying monarchists were inventing ludicrous conspiracy theories when all he was trying to do was modernise the state's justice system.

Oh dear, diddums, as one of my feistier students is wont to say.

The A-G reasonably explains that the change reflects his Government's "commitment to modernise and simplify laws" -

Referring to the Queen is outdated. Substituting the Director of Public Prosecutions (DPP) for the Queen or Regina reflects the legal and political independence from the United Kingdom and its monarch that has been achieved by Australia. ... This is a further step to bring our legal system into the 21st century.

It is also consistent with the passage of the Australia Acts which terminated the power of the United Kingdom Parliament to legislate for Australia, removed the ability of the Queen to disallow or suspend federal or state laws, and abolished appeals from the High Court to the Privy Council.

The change followed removal in 2000 of the requirement for new lawyers to swear an oath of allegiance to the Queen and substitution of 'Senior Counsel' for 'Queens Counsel' (the latter perhaps being more regretted by senior members of the profession than deletion of references to Her Majesty.

Painting a halo on the pig

Given the importance of religious organisations (or ostensibly religious organisations) for the delivery of social services, the tax and other advantages provided by the state and their colonisation of the commercial sector - turf farming, hospitals, pathology services, property development, retailing that's as uninhibited as overtly commercial competitors - it is heartening to see the announcement by the Australian Competition & Consumer Commission (ACCC) of successful action over misrepresentations by Mercy Ministries Incorporated and Mercy Ministries Limited.

Painting a halo on the pig is not, it seems, a licence to breach the Trade Practices Act 1974 (Cth).

The ACCC has indicated that it has gained court enforceable undertakings (which includes payment) from seven former directors of the Mercy Ministries entities regarding "misrepresentations".

Mercy Ministries is a "not-for-profit Christian based charitable organisation" associated with the controversial and politically powerful Hillsong group. It offered a residential counselling program to young women affected by issues such as eating disorders, unplanned pregnancy, depression, self harm, substance abuse and the effects of sexual or physical abuse. The program was offered whilst the young women resided in a Mercy Ministries home.

The ACCC indicates that between January 2005 and June 2008 Mercy Ministries misrepresented (in brochures and on its website) that its services were provided for free. However the majority of residents were required to assign their Centrelink payments (ie welfare payment from the state) to Mercy Ministries for the duration of their stay. The Lord it seems, helps those who help themselves in an Australian manifestation of the US 'gospel of prosperity' (a gospel perhaps currently being questioned by televangelist Oral Roberts, who this week has gone to the big cash register in the sky).

The ACCC was also concerned that Mercy Ministries "misrepresented that it offered professional support" from psychologists, dieticians, general practitioners, social workers and counsellors. Alas, "the level of professional support was not available as represented". The ACCC notes that "Mercy Ministries did not employ this range of professionals". Access to external professionals was 'facilitated' upon request from residents, although it's unclear whether the consumers were instead encouraged to rely on prayer. (Some critics have alleged that Mercy also engaged in exorcism.)

The deliciously succinct Section 52 of the Trade Practices Act prohibits corporations from engaging in conduct that is misleading and deceptive or is likely to mislead or deceive. Section 53(aa) prohibits them from falsely representing that services are of a particular standard, quality, value or grade. Section 53(e) prohibits them from making false or misleading representations with respect to the price of goods or services. Individuals responsible for the conduct or management of a corporation are prohibited from knowingly causing or permitting the corporations to engage in such conduct.

Oops, that was bad news for the mercy business. The ACCC indicates that the former directors of Mercy Ministries Inc/Ltd -

* acknowledge that they were persons ultimately responsible for the conduct of Mercy Ministries, and admit its conduct was false, misleading and deceptive, and likely to contravene sections 52, 53(aa) and 53(e) of the Trade Practices Act 1974
* undertake to attend annual trade practices compliance training for three years.

Undertakings by those former directors - Mark Zschech, Darlene Zschech, Peter Irvine, Mark Caldwell, Stephen Crouch, Young Pil (Phil) Sohn and Clark Pearson - include provision of a signed joint letter of apology to past residents in the relevant period. The undertakings also include an offer of a voluntary payment of $1,050 - small but a signal that Mercy's words were awry - to the people affected by the conduct.

ACCC chair Graeme Samuel said -

Given the vital role charitable organisations have in our society, and the trust placed in them, it is imperative that their conduct is of the highest standard, especially in their dealings with vulnerable and disadvantaged members of our community. The utmost integrity is expected from charities - by the ACCC and the public at large - and it should be delivered.

The SMH reports that -

Hillsong Church said in October it had cut ties with the group. At the same time, Mercy Ministries announced it was closing its Sydney home, citing "extreme financial challenges and a steady drop in our support base".

Moles and rats

No, not Wind in the Willows. The Australian Communications & Media Authority (ACMA), the national telecommunications regulator, reports that the Federal Court in Brisbane today imposed $6.5m in penalties against Scott Moles and Jobspy - two further respondents in proceedings brought by ACMA against SMS spammers.

Those penalties are in addition to $15.75m imposed on five other respondents earlier this year, notably Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 2) [2009] FCA 887 (highlighted here and here), bringing aggregate penalties to $22.25m. The hearing in relation to Scott Gregory Phillips, the final respondent, is due to resume on 8 February next year.

In today's judgement the Federal Court hit Jobspy Pty Ltd with a $4m penalty; Scott Mark Moles received a $2.5m penalty.

ACMA had alleged that Jobspy and Moles were involved in a complicated scheme that featured creation of fake dating website profiles to obtain the mobile numbers of genuine dating site users. Those mobiles were then sent messages from people pretending an interest in meeting and forming a relationship. Users who responded to the messages were charged approximately $5 per message, rather than the usual opportunities of heartfelt love and undying emotion. ACMA alleged that the scheme cost Australian mobile users more than $4m since late 2005.

Genetic Info privacy and Forensic Databases

National Guidelines for health practitioners in the private sector on the Use and disclosure of genetic information to a patient’s genetic relatives under Section 95AA of the Privacy Act 1988 (Cth) [PDF] were issued by the NHMRC on 27 October this year and came into effect today.

The Guidelines implement changes in 2006 to the main national privacy statute. They specify requirements that must be met by private sector health practitioners who choose to use or disclose genetic information without patient consent under National Privacy Principle [NPP] 2.1(ea). Disclosure of genetic information without consent must be in accord with NPP 2.1(ea) and the Guidelines.

The NHMRC notes that, in contrast to other guidelines for clinical settings developed by the NHMRC, the Guidelines have been issued with the approval of the Privacy Commissioner (under section 95AA of the Privacy Act) as the means of implementing the amendment to the legislation.

In summary the Guidelines are as follows -

1 Use or disclosure of genetic information without consent may proceed only when the authorising medical practitioner has a reasonable belief that this is necessary to lessen or prevent a serious threat to the life, health or safety of a genetic relative.

2 Specific ethical considerations must be taken into account when making a decision about whether or not to use or disclose genetic information without consent.

3 Reasonable steps must be taken to obtain the consent of the patient or his or her authorised representative to use or disclose genetic information.

4 The authorising medical practitioner should have a significant role in the care of the patient and sufficient knowledge of the patient’s condition and its genetic basis to take responsibility for decision-making about use or disclosure.

5 Prior to any decision concerning use or disclosure, the authorising medical practitioner must discuss the case with other health practitioners with appropriate expertise to assess fully the specific situation.

6 Where practicable, the identity of the patient should not be apparent or readily ascertainable in the course of inter-professional communication.

7 Disclosure to genetic relatives should be limited to genetic information that is necessary for communicating the increased risk and should avoid identifying the patient or conveying that there was no consent for the disclosure.

8 Disclosure of genetic information without consent should generally be limited to relatives no further removed than third-degree relatives.

9 All stages of the process must be fully documented, including how the decision to use or disclose without consent was made.

Nothing to hide, nothing to fear? Balancing individual rights and the public interest in the governance and use of the National DNA Database, s report by the UK Human Genetics Commission last month, comments

The National DNA Database (NDNAD) was established in 1995 and now contains the DNA profiles of approximately five million UK citizens. There has been little concerted public opposition to the rapid growth of the database in the UK, although it cannot be inferred from this that all aspects of the database command widespread support. Through public engagement activities such as the 2008 Human Genetics Commission (HGC) Citizens’ Inquiry and subsequent public consultation, we are aware of the existence of significant concerns that have never been fully addressed. These concerns are the starting point for our deliberations. 

We consider the development of the database as the coming together of distinct developments in genetics science, police record-keeping and information technology (chapter one). We discuss the particular technologies in use and make the distinction between a biological sample and a DNA profile. We identify the danger that reliance on the use of the database as an investigation strategy could lead to irreversible evolutions in policing practice that make commitment to the database a fait accompli. 

We consider the development of the legislative conditions for the database, principally by successive amendments to the Police and Criminal Evidence Act 1984 (chapter two). We find that the purpose of the database has altered over time and has never been stated in sufficiently clear terms. We discuss the case of S and Marper v. The United Kingdom and identify two limit cases (a database comprising profiles of only convicted offenders and a whole-population genetic database). We describe the problem of justifying any middle path (i.e. holding profiles of some, but not all, people who have not been convicted) as a challenge to the legal ‘presumption of innocence’ on the one hand or, if this can be overcome, to the evidence that would distinguish individuals on the basis of the risk they pose to society. In order to provide clarity and control of the purpose of the database we recommend that the National DNA Database should be established in law through new primary legislation. The permitted uses of the records constituting the National DNA Database should be simply, unambiguously and explicitly defined in legislation, and any use of the database that falls outside those permitted uses should be made an offence subject to strict penalties. Any provision made for amending those uses through delegated legislation should be limited in scope in the primary legislation. 

We examine expressed attitudes to DNA and genetic information (chapter three) in order to understand why people might feel that holding DNA profiles on a forensic DNA database is a particular interference with their privacy. We consider four ways in which genetic information might be seen as exceptional compared with other sorts of information. We examine the argument that those who have nothing to hide have nothing to fear from the NDNAD and examine possible harms including the risk of adventitious matches, inadvertent discovery of unknown biological relationships, and breaches of data security. The claim that those whose profiles are retained are in a distinct relationship with the state amounting to ‘genetic probation’ is discussed. We recommend that the legislation that establishes the National DNA Database should be accompanied by a full privacy impact assessment with advice from the Information Commissioner, so that these impacts can be considered when the legislation is debated openly in Parliament. 

We examine the social consequences of the NDNAD, in particular its disproportionate effect on certain sections of the population including young people, black and minority ethnic groups, and people with mental health problems. We recommend that new guidance is given on when it is appropriate to take a DNA sample following arrest and to record a resulting DNA profile on the National DNA Database; the guidance should have regard to the circumstances of the arrest (including the nature of the offence of which the arrestee is suspected). Furthermore, we recommend that an independent panel reviews, at regular intervals, evidence relating to arrests and the taking of DNA samples, in order to ensure that (1) the guidance is sufficiently robust and (2) the guidance is being appropriately followed. In order to ensure that the risk of stigmatising particular groups is minimised and attention is given to disproportionate impacts we recommend that the legislation that establishes the National DNA Database should be accompanied by a full equality impact assessment so that these impacts can be considered when the legislation is debated openly in Parliament. In order to express solidarity and to foster greater trust and co-operation between the police and the communities they serve we recommend that all serving police officers, and those whose professional duties require or permit them to come into contact with crime scenes or crime-scene samples, should have their DNA profiles recorded on the Police Elimination Database and retained; this requirement should be a condition of employment. We consider the position of those who ‘volunteer’ to provide profiles for inclusion on the NDNAD and agree with other commentators that consent should be freely given and capable of being withdrawn. We recommend that the statutory framework for the National DNA Database should include provisions relating to consent which, as a minimum, should make it unlawful for records derived from volunteer samples to be retained in the absence of a validly obtained and subsisting consent. 

We consider the suggestion that a whole-population database would provide a solution to the disproportionate representation of certain groups under the current arrangements but remain convinced that the need to avoid discriminatory consequences is not in itself a sufficient reason to institute a whole-population database. 

Having concluded that the balance of argument is against the general threat of crime as a justification for retaining DNA profiles from unconvicted people in general, we discuss how the usefulness of the database as a tool to identify offenders might provide a justification for retaining profiles from those most likely to offend (chapter four). Two problems with this approach are discussed: (1) how those at risk of future offending can be so reliably identified as to licence a prospective interference with their privacy and (2) defining and evaluating the ‘forensic utility’ of the database as an investigative strategy. We suggest how a definition of ‘forensic utility’ should be approached and the measures that are needed to ensure it is properly evaluated. We recommend that the National DNA Database Strategy Board should define and consult widely on an appropriate definition and acceptable measures of forensic utility. These should support the evaluation of the role played by the National DNA Database in the identification of offenders, while making it feasible to collect prospectively the evidence necessary for the evaluation in an operational context. Given the gravity of the consequences of basing decisions about the scope of the database and the retention of individual profiles on their utility in crime management, public and independent scrutiny are necessary. We support the efforts that are currently being made by the National DNA Database Strategy Board to identify and provide meaningful information that can be placed into the public domain, and we recommend that data supporting evaluation of the forensic utility of the National DNA Database should be collected and published by the National DNA Database Strategy Board or the National Policing Improvement Agency National DNA Database Delivery Unit. An evaluation of such data should be conducted by an independent body and placed in the public domain. 

We consider arguments for the retention of biological samples after a DNA profile has been extracted from them. We do not find any of these convincing and, in any case, they are far outweighed by the concerns already identified about the further uses to which they may be put. Therefore we recommend that there should be a move towards the destruction of subject samples when profiles have been loaded to the National DNA Database; and that the UK should continue to support efforts to standardise sets of markers with other countries in Europe and elsewhere with whom the sharing of data for criminal intelligence purposes may be desirable. 

We turn to the future (chapter five) and consider ways in which the utility of the database might be increased: by increasing the size or improving its composition, by the introduction of new technologies for analysing samples and protecting individual privacy, and by introducing enhanced approaches to data mining. We identify the potential for both beneficial and harmful ‘function creep’ and for ‘function leap’ that would involve co-opting the NDNAD to an ulterior and more urgent purpose. We consider briefly changes in social conditions that might make this either more likely or more tolerable. We consider sharing and linking data both with other databases and with forensic databases in other jurisdictions, and we recommend that robust processes should be developed to control international data sharing and that these should be subject to appropriate monitoring in order to ensure that (and to determine whether) the necessary data, and no more, is being shared or exchanged. We reiterate our view (chapter six) that holding the DNA records of innocent people fundamentally alters how suspicion, guilt and innocence function in the relationship between the citizen, society and the state. 

We recommend that the Government supports continuing national debate, informed by the publication of relevant evidence, that addresses explicitly the extent of and justification for the interference with personal privacy inherent in retaining personal DNA profiles. The debate should address the basis on which a distinction may be made among unconvicted individuals so that the collection and retention of DNA profiles of some of them, but not all, would be acceptable. Whatever measures are put in place in the interim to comply with the S and Marper judgment we recommend the establishment of a Royal Commission on the National DNA Database to give focus to, and to learn from, the public debate, and to ensure that its outcomes will be taken forward and reflected in future framework legislation. We confirm the conclusions of our Citizens’ Inquiry that there is a need for better understanding of the role of DNA in police investigations, to foster increased trust and co-operation between the public and the police. We recommend that more, and more reliable, information about the National DNA Database is made widely available, in particular evidence of its usefulness in investigating crime and leading to the conviction of offenders. To represent the different perspectives that people have and the values that people bring to bear when discussing the NDNAD we identify six ‘ideal types’ that we have abstracted from our various public engagement activities. Having distinguished these types we identify the principles that they share in common and the key point of divergence – the challenge the NDNAD represents to the presumption of innocence. 

Finally, we set out some practical measures to improve the governance of the database. While we appreciate the efforts made to increase openness by the NDNAD Strategy Board, nevertheless we recommend that an independent body be established to oversee the management and use of the National DNA Database, and that this body should conduct its business in an open and transparent way to the fullest extent that the operational sensitivities of policing will allow. In order to ensure that proper consideration is given to requests to remove DNA profiles from the database we recommend that clear and explicit rules for the removal of samples/profiles from the database be drawn up so that consideration and, if necessary, argument can be addressed to whether a given case falls under that rule. Consistently with our other recommendations concerning the establishment of the database in law, we recommend that these rules should be stated in primary legislation. To ensure that these rules are properly implemented and to reduce the barriers (of difficulty and cost) currently faced in securing removal of DNA profiles from the NDNAD we recommend that an independent body be empowered to consider appeals against rejection by a Chief Officer of an application to remove a DNA profile from the National DNA Database. 

A key finding in relation to the evidence surrounding the NDNAD is that there is currently insufficient evidence available to demonstrate its forensic utility, certainly to the extent that its proven usefulness might justify greater intrusions into individual privacy. We are particularly concerned that no deliberate and appropriate efforts appear to have been made to redress thisprospectively. Therefore we recommend that the National DNA Database should have in-built reporting systems properly designed with the assistance of those with appropriate academic expertise to provide information necessary to demonstrate forensic utility and for equality and privacy impact assessments. In order to ensure that the evidence is brought to bear on NDNAD profile retention policy as it emerges we further recommend that an annual review be undertaken, informed by the reporting systems we have recommended, of the forensic utility of the National DNA Database and that the review should draw out strategic and policy proposals for the management and use of the database. 

Finally, given the enormous significance of the ethical issues raised by the database, and particularly its role in approving research using the database, we recommend that the National DNA Database Ethics Group be placed on a firmer footing: members should be remunerated (as for the majority of other public bodies), and the secretariat strengthened to support its work. Its independence from the Home Office should also be increased, as should its capacity to review and authorise research applications.

Bars, Brutality and Tagged Teens

The latest Australian Bureau of Statistics (ABS) report on incarceration in Australia indicates that the number of adults in Australian prisons increased by 6% (1,700 prisoners) over the year to 30 June 2009.

As at 30 June this year some 29,300 prisoners were held in 'corrective services adult custody', ie an imprisonment rate of 175 prisoners per 100,000 adults. Eight in 10 of those prisoners were born in Australia. (Recent figures on adult and juvenile crime are highlighted here and here.)

The proportional increases were greatest in Western Australia (up by 17%) and the Northern Territory (11% increase). Those jurisdictions also had the highest imprisonment rates (260 and 660 prisoners per 100,000 adults respectively).

56% (ie 16,270) of all prisoners had served a sentence in an adult prison prior to their current incarceration. The most serious offence or charge for nearly 1 in 5 prisoners (5,600 people) was 'acts intending to cause injury'. The most serious offence or charge for older prisoners (those aged 55+) was sexual assault and related offences. The ABS doesn't give a breakdown of sexual and other offences committed by inmates against other prisoners, highlighted in last month's 59 page Predator or Prey? An Exploration of the Impact & Incidence of Sexual Assault in West Australian Prisons [PDF] by Brian Steels & Dot Goulding. (Recent figures on juvenile incarceration are highlighted here; context is provided in the recent Offending Youth: Sex, Crime & Justice (Federation Press, 2009) by Kerry Carrington.)

Prisoners were sentenced to an average prison term of 4.8 years, with an average expected time to serve (the earliest date of release taking into account the type of sentence, good behaviour, time already served, etc) of 3.5 years.

The rate of Indigenous imprisonment continued to rise; the rate was 14 times higher for Indigenous prisoners than non-Indigenous prisoners. However, their average sentence length was less than non-Indigenous prisoners (3.6 years compared to 5.3 years). The ABS notes that the number of women prisoners increased by 57% between 1999 and 2009 compared with a 35% increase in male prisoners during that period.

The Steels & Goulding study, drawn from interviews with 150 ex-prisoners and with prison staff, is consistent with research such as Heilpern's Fear or Favour (1998) which noted that one in four males between 18 and 25 years reported that they had been sexually assaulted while in NSW custody. It indicates that -

• 81 or (54%) of the participants interviewed said they had knowledge of sexual assault in WA prisons.
• 35 or (23.3%) of the participants interviewed disclosed that they had been placed under pressure at some time during their sentence in a WA prison to provide unwanted sexual acts. Most claimed that the incidents occurred within the first six months of their sentence.
• 116 or (77.3%) had knowledge of an assault and had experienced a degree of pressure to perform some kind of sexual act.
• 21 or (14%) of participants said they had been sexually assaulted whilst held in a WA prison.
• 6 or (4%) acknowledged predatory sexual behaviour in prison. 4 of these said they had previously been sexually assaulted in prison themselves.
• 7 or (4.6%) were unsure if sexual assault occurred in prisons or not.
• 4 (2.6%) claimed that sexual assault incidents do not occur in prisons.

The authors comment that Australia as a society is -

measured by our capacity to apply basic human rights, even to those that are being sanctioned by the community, in an institutional setting. That prisoners are the victims of sexual abuse and assault in those very institutions is an indictment on the system that turns a blind eye. This research is confronting. It is by its very nature, shocking.

Sadly, its findings - other than information about the distress experienced by some custodial officers who deal (or in practice don't deal) with the assaults - are not new and one might be sceptical about whether much is going to change in dealing with an environment where -

Prison sexual assault remains largely hidden from public view, is usually left out of corrective services’ annual reports, is frequently ignored by senior policy makers, and goes largely unchallenged by judges and lawyers, creating little more than a disinterested whisper outside of prison walls.

Meanwhile the BBC reports that "the number of young offenders ordered to wear electronic tags in England and Wales has seen a steep rise", with around 20,000 15 to 17-year-olds being tagged last year. More than half of those teenagers - unsurprisingly - "breached their restrictions, either by removing the tags or breaking curfews". Tagging has been adopted for people as young as 10, ostensibly both as a cost-effective alternative to custodial sentences and "to deal with the problem of youngsters who made the lives of others a misery through anti-social behaviour".

The BBC quotes a UK Ministry of Justice spokeswoman as claiming that -

Electronic monitoring provides the courts with a credible alternative to custody. It can be used alone, or as an enhancement to other community interventions. Curfews introduce regularity into what are often chaotic lifestyles. They enhance supervision and can disrupt the pattern of offending behaviour.

The spokesperson did not refer to past criticisms of the way that tagging has been implemented, with for example instances where private security services either ignored automated alerts when tags where removed or simply did not bother to follow-up when tagged teens moved out of a designated precinct.