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to Operation Nutmeg and the DNA sampling of gay and bisexual men convicted of consenting behaviour under the now repealed offence of gross indecency.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 supposed to be only taken from "individuals convicted of the most serious offences" and should not be taken from men whose "sole" conviction is gross indecency. It urges them to "review" any samples they have already taken and, if appropriate, ensure their "destruction."
The revised guidelines follows my 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, the conviction dated back decades.
Last week, I wrote to ACPO suggesting:
"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."
In my subsequent discussions with Amanda Cooper of ACPO, I urged the issuing of new advice to all police forces. To its credit, APCO has taken on board the concerns of the lesbian, gay, bisexual and transgender (LGBT) community 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 at all, regardless of whether it is a sole conviction or one of several convictions. Because it is a victimless offence for these men, they should have never been targeted by Operation Nutmeg.
On the positive side....
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.
"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 me after being DNA sampled 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 stated 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 subjected to DNA sampling.
Manchester police have apologised. Other forces have not, so far. I hope they will follow Manchester's lead.
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. The Home Office website explains how to apply to have a conviction disregarded.
If men have their convictions disregarded, they will not be at risk of similar police sweeps in the future.
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