Fingerprints on Trial

Science, pseudoscience, and the curious case of Shirley Mckie

Next month, a “Public Judicial Inquiry” - announced by Kenny MacAskill MSP, the Cabinet Secretary for Justice, in the Scottish Parliament on 14 March 2008 – into the case of H.M Advocate v McKie will finally report its findings. (ref)

This report (about a case which seems to have faded into media obscurity) may have profound implications for legal systems (north and south of the border if not worldwide) and potentially for (a topic very much in the news) border control.

It all began back in 1997 when, a police woman, Shirley Mckie, was arrested and charged with perjury over a (left thumb) fingerprint – identified as hers by four experts from the Scottish Criminal Records Office (SCRO) – found on a right door jamb inside a house where a police team were investigating the vicious murder of one Marion Ross in Kilmarnock, Scotland.

The authorities insisted that Shirley must have been present at the crime scene at some stage during the investigation and was now lying about it. She insisted she had never entered the house.

In the end, Shirley Mckie was acquitted of perjury (though the case did go to trial) and (in separate developments) David Asbury – the man jailed for Marion Ross’s murder, also on the basis of a disputed fingerprint[1] – was exonerated and freed from jail.

You can read Shirley Mckie’s version of events here.

Now if the four experts at the SCRO had simply admitted they had made a mistake, that would have been the end of the matter. In fact, they stuck to their guns and have been supported by a number of outside experts. Meanwhile, many more experts – including several international experts - have supported Shirley Mckie and insisted that the fingerprints in question were not hers or Marion Ross’s.

The balance of findings of various court cases and inquiries thus far has tended to support the Mckie camp, but the fact that a number of profound questions remain open and are still disputed by different experts has led to the current Public Judicial Inquiry. The evidence presented to that inquiry is available online and, probably most interestingly, this evidence includes that of fingerprint expert Peter Swann – who was originally consulted by the Mckie family but who is now very much in the opposing camp and who still insists to this day that the identifications of Shirley Mckie's and Marion Ross's prints were unequivocally correct.

I have no idea what the findings of the Judicial Inquiry will be but, whatever they are, profound questions will be raised about the use of fingerprinting.

Let me say at the outset that I know nothing (other than what I have picked up in the course of reading about this case) about the science of finger printing. I do, however, know quite a lot about scientific methodology in general.

The Professor of Logic and Scientific Method Sir Karl Popper is often quoted (and often misunderstood) both by defenders of the “scientific method” (something harder to define than many scientist admit or realize) and by defenders of all sorts of pseudo-scientific nonsense. What is less often pointed out is that many of Popper’s ideas have been found wanting, but one of his insights stands up rather well. Popper realized that one of the key things that distinguishes true science from pseudo-science is that pseudo-scientists look (by and large) only for verification of their theories. True scientists test their theories by looking for falsification.

To give a simple example: it is very easy for an astrologer to go out and find 16 (or more) people born under the sign of Capricorn who are extremely capricious (or whatever Capricorns are supposed to be). The true scientist, however, looks to see if there are any Capricorns who are un-capricious. The finding of just one such person falsifies the astrologer’s claim – regardless of how many people the astrologer has lined up in support of his claim.

Of course claims like this are more often expressed in probabilistic terms: “Capricorns are more likely to be capricious”. The same basic principles apply however. The true scientist starts counting un-capricious Capricorns and capricious non-Capricorns and performs a statistical analysis. The astrologer simply goes on saying: “look at all these people who are Capricorns and who are extremely capricious”.

So what has all this got to do with finger printing? At the time of the original events, the website of the SCRO used to boast that “in order to comply with the existing standard in Scotland” they insisted on identifying sixteen characteristics, in sequence and agreement, before concluding that a match had been found (unfortunately I have no cache of this site but I assume that the exact wording will be available somewhere in the inquiry evidence).

I should be interested to know how widely this “standard” is (or was) used in the world at large – my understanding is that the former SCRO (now, I understand, part of the Scottish Police Services Authority Forensic Service) now use a “non-numeric” standard.

The potential fallacy implicit in the “sixteen points in agreement” approach (to anyone who has read Popper) is plain to see. Let us assume (as fingerprint scientist claim) that every fingerprint in the world really is unique (an un-testable hypothesis, but one that there are good reasons for accepting). It does not follow at all from this that every fingerprint in the world is unique with respect to sixteen (or however many) carefully selected characteristics. After all, I am pretty confident that (just considering the topology) I could find at least sixteen “points of agreement” between the London and Paris underground maps if I set my mind to it.

No matter how many points of agreement there are between two fingerprints – 16, 45, or 145 – logically speaking, one single point of disagreement clinches the matter: the two prints are not the same.

Of course, in the real world, things are never quite so clear cut. Points of agreement and disagreement will be a matter of judgment by experts - often working with less than perfect images – and several points of disagreement may have to be found to really clinch the matter. But the basic principle holds: Any true scientist comparing finger prints will look not just for points that confirm his hypothesis that two prints are the same, but for any points that falsify that hypothesis.

So does this mean that fingerprinting is or was or often is a pseudoscience? I am really not qualified to say – though I can think of research programmes that could clinch the matter and I shall certainly read the coming report with a great deal of interest.

Two alternative conclusions seem hard to avoid however:

either

1) UK fingerprinting was (and possibly still is) riddled with incompetent and/or dishonest and/or deluded “experts”.

or

2) Fingerprinting really is not a true science and different “experts” will honestly reach different judgments when presented with the same evidence.

Again, I have no idea which of these conclusions is correct (perhaps a bit of both?) but I would find either of them profoundly disconcerting.


[1] In this case, the print (on a tin in David Asbury's possession) was identified - by the SCRO and later by Peter Swann - as belonging to the murder victim Marion Ross.

POSTSCRIPT

The report has been published:
summary
full report

The Chairman, Sir Anthony Campbell, would seem to have come down very firmly in support of suggestion "2" above: "Fingerprinting really is not a true science and different 'experts' will honestly reach different judgments when presented with the same evidence."

Why there is no simple relationship between immigration and the rate of unemployment

Background to this post

This post arises from an ongoing Twitter conversation with a rather unpleasant tweeter who was trolling @DAaronovitch on the subject of immigrants causing unemployment and who seems to have shifted his attentions to me. I’m not sure this particular individual is amenable to rational persuasion – his tweets are sprinkled with insults – but the position he seems to hold – that jobs in a particular country are a bit like spaces in a car park – is common enough, and I think is worth challenging in the hope that some people may revise their opinions.

Full Employment

First of all a definition: "full employment" does not, as some people assume, mean that everyone has a job. This terminology is used to describe a state of affairs where the number of vacancies is on a par with the number of unemployed. Of course neither the number of unemployed nor the number of vacancies are things that can be measured particularly accurately, but it was pretty clear that during the Thatcher years - when we had about three million officially unemployed and about a hundred thousand official vacancies - that we did not have full employment. During the 1960s and again for a time in the 1990s we did.

So why do we still have any unemployment during periods of full employment?

Well there are essentially two forces at work here: "frictional" unemployment and "structural" unemployment.

Frictional unemployment occurs simply because the world of work is fluid and dynamic. Jobs are being destroyed and created all the time and people leave jobs and begin new ones. At any one moment in a country of sixty million or so, there are, at any one moment, certain to be significant numbers of people "between jobs" - even if everyone concerned is destined to begin a new job in the near future.

Structural unemployment is a more serious problem. This occurs when vacancies require skills that are in short supply or workers who are in short supply in the area of the country where they are needed. Thus, even during full employment, you may have (say) lots of unemployed bricklayers in the North alongside a shortage of hair stylists in the South.

What can we do about structural and frictional unemployment?

Well frictional unemployment is not necessarily such a bad thing. It provides a pool of workers who can be recruited quickly and contributes to a certain degree of fluidity and flexibility in the labour market, but, to the extent it is a problem, efficient dissemination of information is the key. Structural unemployment can be addressed - though not always successfully - by retraining and help in relocating. Such measures cannot, however, address the underlying problem during periods of less than full employment - a point that often seems lost on politicians and journalists:

Fallacy #1: The problem of unemployment can be solved by education or training

During the abovementioned Thatcher years I remember regularly shouting abuse at my wireless set as commentators repeatedly advanced the argument that, in a situation where there were about three million officially unemployed and a hundred thousand official vacancies, those with the best qualifications and the best interview skills were the most likely to get any jobs that were going (that bit’s true so far) therefore (this is where the reasoning went wrong) all we had to do was train everyone to be good at interviews and to raise educational standards and everyone would get a job. The fallacy behind this argument is so obvious that there does not seem to be any need to point it out, but I still hear versions of it repeated even to this day.

So why don't we always have full employment?

The key fact here is that employees, as well as being suppliers of labour, are consumers of goods and services. Ignoring the effect of imports and exports (or, alternatively, assuming that there is an equal balance of imports and exports) if the demand for goods and services from the population as a whole is roughly equal to the ability of the entire workforce to produce those goods and services we will have full employment; if the demand for goods and services from the population as a whole is greater than the ability of the entire workforce to produce those goods and services we will have an overall shortage of labour; and if the demand for goods and services from the population as a whole is lower than the ability of the entire workforce to produce those goods and services we will have net unemployment - ie unemployment that would still be there even if we could fill every vacancy.

So why don’t we always have enough demand for labour

This is the point where those of different political persuasions tend to part company. It could be argued (and indeed I should argue) that high unemployment was a deliberate policy for a while under Margaret Thatcher since this policy tipped the balance of power against working people and (especially) their trade unions. But let’s assume most governments of whatever political persuasion will usually seek to maximize employment. Left wingers tend to argue that the problem is that pay is too low. “Increase pay” they argue “and demand for labour will increase”. Right wingers tend to argue that the problem is that pay is too high. “Decrease pay, and thus the cost of labour,” they argue “and demand for labour will increase”.

I don’t wish to enter into that debate here, but given what has been said thus far, you can see where both sides are “coming from”.

But what about immigration?

We need to start using some figures now, but I’m going to make up some nice round numbers – it’s the principle I want to get across, not the real UK numbers. What I present here is a series of thought experiments:

Let’s assume there’s a country, not unlike the UK, with 60 million in habitants and a workforce (ie all the people in work plus all the people seeking work) of 20 million.


Immigration to a country with full employment and no unemployment and no vacancies

If we assume that all 20 million of the workforce are in paid employment, we can easily calculate that each inhabitant of this country generates an average demand (to produce the goods and services he/she consumes) of 20m/60m = ⅓ of a worker.

Or, to put it the other way around, each worker produces (on average) goods and services for 60m/20m = 3 consumers.

Now let’s assume that a million people extra people arrive from a country (not unlike, say Poland) and let us further assume (for the moment) that those people have similar profile of demand for goods and services as the “indigenous” population and a similar profile of working ability – ie a third of them are of working age and intend to seek work in the UK; the rest are children or other dependents.

What would happen?

The population of our imaginary country would increase to 61 million. These 61 million people would require the services of 20 and ⅓ million workers. The demand for labour would therefore increase to 20 and ⅓ million and ⅓ million extra jobs would be created to supply the new demand. This would soak up the ⅓ million immigrants who were looking for work and there would be once again full employment and 0% unemployment.

Old population:	60000000
New population:	61000000
Workforce required to supply new level of demand from increased population:	20333333
Old workforce:	20000000
New workforce:	20333333
Old total in work:	20000000
New total in work:	20333333
Old total unemployed:	0
New total unemployed:	0
Old unemployment rate:	0%
New unemployment rate:	0%

Immigration to a country with unemployment and no vacancies

So let’s now consider what happens if we don’t have 100% of the workforce employed. Let’s assume that 18 million of the workforce are in paid employment and 2 million (ie 10%) are unemployed.
Again we can calculate that each inhabitant of this country generates an average demand for 18m/60m = 0.3 of a worker or that each worker is produces (on average) goods and services for 60m/18m = 3 and ⅓ consumers.

Now again let’s assume that a million extra people arrive with a similar profile of demand for goods and services and jobs. The Population of our imaginary country will increase to 61 million. These 61 million people will require the services of 18.3 million workers.
Unfortunately, since 20333333 workers are now chasing 18300000 million jobs, there will not be quite enough jobs created this time round to soak up all the new immigrant workers. Unemployment will rise (in absolute terms) by 33333, the unemployment rate will, however, remain at 100x2033333/20333333 = 10% - just as it was before the immigrants arrived.

Old population:	60000000
New population:	61000000
Workforce required to supply new level of demand from increased population:	18300000
Old workforce:	20000000
New workforce:	20333333
Old total in work:	18000000
New total in work:	18300000
Old total unemployed:	2000000
New total unemployed:	2033333
Old unemployment rate:	10%
New unemployment rate:	10%

Immigration to a country with unemployment and no vacancies where the demand profile of the immigrants does not match the demand profile of the host country

A reasonable objection to the thought experiments presented so far would be to point out that the demand for goods and services among the new immigrants may be lower than that in the host community (the new immigrants may, for example, save more or send money back home) and the demand for jobs among the new immigrants may be higher than that in the host community (the new immigrants may, for example, have a significantly higher proportion of people of working age).

So what happens to the figures when we consider such factors?

Again for simplicity, let’s consider what happens if a typical immigrant consumes only half what a typical non-migrant consumes and is twice as likely to be looking for work (and all other assumptions remain the same as in the previous example).

Old population:	60000000
New population:	61000000
Workforce required to supply new level of demand from increased population:	18150000
Old workforce:	20000000
New workforce:	20666666
Old total in work:	18000000
New total in work:	18150000
Old total unemployed:	2000000
New total unemployed:	2516666
Old unemployment rate:	10%
New unemployment rate:	12%

So in this highly improbable scenario (in which the demand for goods and services halves in a population where twice as many are seeking jobs) there is a slight increase in the rate of unemployment of 2%. If you think this sounds high, then you need to consider that during periods of economic crisis, the rate of unemployment may increase 2 or even 3 fold. But we are also leaving a number of factors out of the picture:

Firstly (partially lifting my self-imposed ban on considering imports and exports) money sent abroad is likely to result in increased demand for imports from the county to which the money is sent and some of that demand is likely to be filled by the country that has received the immigrants.

Moreover, if such monies are held in host country savings accounts pending (or instead of) being repatriated, then the host country banks will have more money to lend to host country businesses and this again will lead to the economy growing more quickly and more jobs and more demand being created as a result.

One possible reason for lower demand for goods and services which has not been considered is the fact that immigrants tend to be paid less for their work and therefore have lower incomes. This fact is, however, balanced by the fact that such workers are cheaper to employ and jobs are more likely to be created for cheaper workers. (Someone with a chip in their bath enamel may call in a plumber to replace the bath if he or she can get a plumber to do this for a reasonable price. If the price of a plumber is prohibitively high, the potential customer may just touch up the blemish with gloss paint and leave his/her money earning interest in the bank.)

All these considerations are likely to mitigate (potentially to a considerable extent) the 2% rate increase suggested by this thought experiment. But a far more important factor that needs to be considered here is the fact (excluded thus far) that, whether we have full employment or high rates of unemployment, there are always significant numbers of vacancies in the economy – for the reasons described above.


Immigration to a country with unemployment and vacancies where the profile of the immigrants does not match the profile of the host country

So bringing in progressively more features into this imaginary example (and thereby making it progressively more realistic but also more complicated) let’s now assume that there are - despite the 2 million unemployed – 1 million vacancies. Let’s ignore frictional unemployment and assume that this is all due to structural unemployment – shortages of the right skills at the right prices in the right places.

Migrants tend to travel to other countries looking for work precisely because they think they have skills to offer, that there will be a call for, in those destination countries. They will also (almost by definition) be prepared to travel to places where labour is required. Given what has been said about structural unemployment we only need to assume that the new immigrants (with their highly improbable demand profile) take up 450000 of the one million existing vacancies which the host population have failed to fill, and the overall unemployment rate will remain unchanged.

Old population:	60000000
New population:	61000000
Workforce required to supply new level of demand from increased population:	18150000
Old workforce:	20000000
New workforce:	20666666
Old total in work:	18000000
New total in work:	18600000
Old total unemployed:	2000000
New total unemployed:	2066666
Old vacancies	1000000
New vacancies	550000
Old unemployment rate:	10%
New unemployment rate:	10%

Conclusions

Of course none of these thought experiments prove anything for certain. It is, for example, logically possible that immigrants always burn 80% of the money they earn, or always so demoralize the host community that everyone else suddenly halves their consumption rates.
There are also more plausible things we’ve left out of the thought experiments - such as birth and death rates amongst the host community and the new immigrants and the timescales over which immigrants arrive and leave and over which jobs are created and destroyed. There is the fact that changes in productivity may allow an economy to produce more (or indeed less) per worker in response to changes in demand - though, again perhaps counter intuitively, there is no simple relationship between productivity and unemployment either. We might also wish to explore a greater range of hypothetical figures.

We have seen that there are highly contrived and improbable sets of circumstances that could (in principle) lead to small increases in unemployment rates following immigration but, in general (as I think the above thought experiments convincingly demonstrate), there is no simple relationship between changes in population size and changes in the rate of unemployment and many people's intuitions here are highly misleading. After all, if there were such a relationship there would be a consistent correlation between population growth/decline and employment rates around the world. We could have never have had full employment during the baby boomer years here in the UK, and Germany would always have higher unemployment rates than (say) Italy.

Clearly the solution to world poverty is not for all the poor people to move to the rich countries. Clearly a population (whether arrived at through high birth-rates or through migration) can be too large for the resources (and ultimately the land mass) of a particular country to support. There are all kinds of issues to do with migration that people might have views on. (I certainly have views: I was an immigrant to another country and am married to an immigrant to this country.) But the notion that the influx of immigrants to a country inevitably causes concomitant rises in unemployment rates is economic illiteracy.

What is a Gene?

Alongside their usual “UNICORNS CAUSE CANCER” style headlines, the tabloid press are also quite fond of “BOFFINS DISCOVER THE GENE FOR BELIEVING IN UNICORNS” style headlines. I think it kind of goes without saying that most of those who write such headlines have only the vaguest idea of what a gene is. To be fair, the more we discover, the vaguer the scientific notion of what a gene is has become, but the basics are very well established.

So what is a gene?

There are all sorts of useful analogies, similes, and metaphors we can use here. I think my favourite is the story of the pilgrim who asked for an audience with the Dalai Lama.

He was told he must first spend five years in contemplation. After the five years, he was ushered into the Dalai Lama's presence, who said, 'Well, my son, what do you wish to know?' So the pilgrim said, 'I wish to know the meaning of life, father.'

And the Dalai Lama smiled and said, 'Well my son, life is like a beanstalk, isn't it?'

“In Held 'twas In I” by Procol Harum

But I’m going to try here to describe what a gene (the real secret of life) really is instead of what it is a bit like.

Now we’ve all heard of the “chromosome”. Say this word to most people (and indeed Google images) and it probably conjures up an image like this:

Now there’s a good reason why the word “chromosome” conjures up an image like this. Basically, it’s when chromosomes look like this that we can see them under normal microscopes. But chromosomes only look like this (all bunched up and double) when they are getting ready to divide. Most of the time, and in most organisms, chromosomes look nothing like this.

Most people (even journalists) who’ve heard of chromosomes have also heard of “DNA” and are aware that it comes in the form of a double helix:

This is basically what you are looking at (ignoring all sorts of caveats that we can sweep under the lab bench for now) when you look at a length of chromosome (or at one of the strands of the chromosome in the doubled up chromosome in the chromosome picture).

So there you have it, chromosomes are (caveats aside) basically long strands of DNA.

But we haven’t mentioned “genes” yet I hear you cry.

Well a gene is a short(ish) bit of chromosome (or DNA strand if you prefer). Now (returning to analogies) “genes” are often compared here to beads on a string. But, since there isn’t really any “string” (just molecules and links between them) popper beads maybe provide a better analogy …. except that there aren’t really any beads either.

Let’s look at the DNA molecule in more detail:

DNA is made from Nucleotides – which is what the “N” stands for in “DNA”. There are just four different nucleotides involved Adenine, Cytosine, Guanine, and Thymine - which are often denoted by their initial letters: A, C, G and T.

If we un-twist the DNA and look at a short bit of it, it looks a bit like this:

But that’s already a bit complicated, so let’s simplify things still further:

(For any pedants reading, each box here represents a nucleotide together with a phosphate deoxyribose; but let's keep things simple.)

Now the more astute among you will have noticed that these two strands are complementary – the sequence of Gs, Cs,As and Ts in the strand at the bottom can be inferred from the sequence of Gs, Cs,As and Ts in the strand at the top (and vice versa).

As this implies, we only really need one strand and, indeed, we are only really interested in one stand today: the” sense” strand. The complementary strand is “anti-sense” and we can ignore it until we come to DNA duplication – which we’re not going to come to in this post.

Going back to analogies again for a second, it’s a bit like every time Guardian journalist Ben Goldacre (@BenGoldacre / http://www.badscience.net) writes a sensible sentence in his blog, Daily Mail journalist Melanie Phillips (@MelanieLatest / http://melaniephillips.com) writes a completely irrational and nonsensical sentence in her blog, and the two kind of cancel each other out.

Anyway, this leaves us with:

These are a bit like popper beads I suppose, but they are nucleotides not genes. There may be, not billions and billions and squillions (said in a Lancashire accent), but certainly hundreds or thousands of these in one gene.

So what use is that?

Well these for nucleotides form a kind of code – a code comprising only four “letters”, but a very powerful code for all that.

But if a chromosome is just a long series of nucleotides and a gene is a simply a part of that series, how do we know where one gene ends and the next one begins?

Well I suppose (and here I’m going to resort to a serious(ish) analogy) it’s a bit like the old style telegrams where you were restricted to twenty-six capital letters and that was it. You had to write stuff like ….

LEAVE THE CAR STOP JACK WILL PICK YOU UP FROM THE STATION STOP BILL WILL BE THERE TOO STOP LATE ON FRIDAY NIGHT WELL MAKE OUR WAY UP TO KATES STOP BUM A LIFT IN THE MORNING TO CHARLIES STOP AUNT DORIS WILL ALSO STOP STOP

…. in order to avoid misreading (try it without the STOPs).

It’s like that with the genetic code. There’s no punctuation, it’s all in the sequence of “letters”, but, as has been noted, we don’t even have twenty-six, we only have four. These make up three letter “words” called “DNA triplets” and each triplet codes for one amino acid.

Just as a DNA strand is a string of nucleotides, a protein is a sequence of amino acids and each gene coded for the string of amino acids that make up a particular protein. Like this:

So the sequence of nucleotides CTA codes for the amino acid “aspartic acid”, AAA codes for the amino acid “phenylalanine” and ATG codes for “stop making protein”.

Since this “protein” only has two amino acids in it, I’m not sure you can really call it a “protein”. It would more usually be called a “dipeptide”. But you’ve almost certainly eaten some of this (give or take a methyl group); it is the artificial sweetener called “aspartame” or “Nutrasweet”. I doubt that there are actually any real genes out in the wild for making aspartame, but I suppose there could be, and it’s a nice simple example of what a very short gene could do.

Conclusion

So now you understand what a gene is. It’s a sequence of nucleotides that codes for a protein (or at least part of a protein – some proteins are made from more than one amino acid chain).

I suppose, armed only with the understanding presented above, you could (naively) begin to imagine that if you have lots of genes for (say) muscle protein (or genes that produce extra good quality muscle protein) you might be more likely to make it as athlete, but how does it all get so complicated and how can you have a gene for believing in unicorns?

Well part of the answer (the full answers really are complicated) is that proteins, as well as being structural like muscle proteins, can be regulatory, like enzymes – which control all sorts of things that go on in our bodies.

Once you consider that the products of some genes can control what other genes do (in all sorts of complicated direct and indirect ways that we don’t need to go into here) you begin to realize that genetics is very sophisticated and subtle and complex.

Your computer is not really built from transistors any more (and still less from valves) but the principle is the same. A transistor is a switch that turns another switch on and off. Once you start putting a few transistors together, you rapidly start to get quite complex behaviour. Put shedloads together and you get something that can do stuff like decide to stall my Ford Galaxy just before I want to set off from a junction (while producing a fault-code which my garage insists doesn’t exist).

Anyway I digress. My point is that even simple feedback mechanisms (and the feedback mechanisms in genetics are far from simple) can produce really really complex behaviour.

Some species of bird are genetically programmed to build very sophisticated nests to lie in. My cats are genetically programmed to catch birds (fortunately for the birds they’re both rather crap at it) but are not genetically programmed (and not bright enough) to even move a twig out of the way before lying down on an otherwise perfectly comfortable and sunny patch of grass in the garden.

These complex behaviours require lots of genes (and maybe lots of so called “junk” DNA) working in harmony. On the other hand, the colours of my cats (one is black and the other is tortoiseshell) arise from the actions of just one or two genes (though even here – especially in the case of the tortoiseshell – things are a bit more complicated than you might imagine).

So while you probably can’t really have a gene for believing in unicorns, you probably can (for example) have a genetic makeup that makes you more susceptible to superstition and irrational views.

At heart, however, a gene is simply a code for making a protein.

For the Love of God: David Allen Green, Captain Mainwaring, and the Catholics

I suppose the background to what I am about to relate is the fact that, even at the height of the recent looting and arson attacks, the lawyer, journalist, and prominent tweeter David Allen Green was enjoining us all not to panic. Since the disturbances he has expressed the view (a view with which I concur) that we should not overact. (David can speak for himself here, and has indeed done so here).

Commenting on the above facts, the Telegraph columnist and staunchly Catholic commentator Damian Thompson ("@holysmoke") offered the following tweet late yesterday (2011-08-16) evening:

@holysmoke

Is it just me, or is there a touch of Captain Mainwaring about @DavidAllenGreen?

Now I can only assume that Damian is confusing Captain Mainwaring with Corporal Jones here, but even then the joke doesn't really work very well. In "Dad's Army" Corporal Jones ran about shouting "don't panic, don't panic" as a way of compensating for his own rising panic. I've not seen any signs that David Allen Green has conducted himself in anything other than the calm and collected manner he urges on his readers.

Anyway, David saw fit to respond with this:

@DavidAllenGreen

@holysmoke It is just you.

Some exchanges then ensued in which @holysmoke claimed that 12 of his 6000+ followers had DMed him in agreement, but not all @holysmoke's Catholic followers were as reticent. One of the public responses from "@Patriccus" went as follows:

@Patriccus

@holysmoke Well, they are both about 5'2 tall, and speak like they've been constipated for the past 3 years @DavidAllenGreen

Now when I last encountered David Allen Green, he was an impressive public speaker (albeit an impressive speaker with a rather endearing Brummie intonation) and (though I did not actually get out my tape-rule and measure him) did not strike me as being unduly short in stature (I'm 6'1" tall). But even if he had a voice like Donald Duck and the stature of Frodo Baggins, it would seem rather unchristian to point this out - especially if you believe (as I assume @Patriccus does) that we are all created by god in his image.

I sent the following (public & obviously ironic) message to David:

@Schroedinger99 - that's me on twitter

@DavidAllenGreen such charming caring compassionate considerate people the catholic faithful

I had intended to construct a further observation on the back of this alliteration but thought better of it. I soon had cause to regret even what I had sent.

Before going further, I should add that Damian himself later saw fit to issue an apology (of sorts):

@holysmoke

Sorry to have raised the @DavidAllenGreen Capt Mainwaring thing. But, to be fair, @PennyRed made the same point.

[NB I added the above tweet a couple of hours after the original publication of this post]

I'll let the other tweets speak for themselves:

@dolphinmaria

RT @Schroedinger99: @DavidAllenGreen such charming caring compassionate considerate people the catholic faithful > aww *sobs*

@dolphinmaria

I don't fink @Schroedinger99 likes us :-(

[A valid observation and I was beginning to lose my restraint by this juncture:]

@Schroedinger99

@dolphinmaria No I don't suppose I do. I think you are evil, bigoted, & nasty; but I wish none of you the kind of harm you intend for me.

@dolphinmaria

@Schroedinger99 *syrupy voice* : we don't intend any harm for you on the contrary we desire the sweet salvation of your soul.

@Schroedinger99

@dolphinmaria "salvation of my soul" oh, I understood I was heading for eternal torment in a lake of fire

@dolphinmaria

@Schroedinger99 Indeed I have already embarked on a novena for that very intention *begins hocus pocus chanting*

[NB It occurs to me now that the order of the previous two tweets may be wrong. @dolphinmaria may have have embarked on a novena for the salvation of my soul rather than for the lake of fire treatment. If that's the case, I apologize for suggesting otherwise - see also note below]

@Patriccus

Well I for one don't wish @Schroedinger99 any harm. Only that he would grow a chin. @dolphinmaria

[So it's not just short people they disapprove of.]

@Schroedinger99

@Patriccus well perhaps if DAG & I pray to your imaginary friend or visit Lourdes he will correct our physical defects that so offend you

@Patriccus

@Schroedinger99 No need - your physical appearance is outmatched by your debonair wit and independent thinking

[I urge you all to admire @Patriccus's finely chiseled features, Adonis like physique, and debonair wit on twitter.]

Meanwhile:

@dolphinmaria

@Schroedinger99 No, dear. You're mixing your fate up with mine. Do keep up!

@dolphinmaria

@Schroedinger99 Don't sound so bitter. Not everybody can be an example of delectable pulchritudinous like me.

@dolphinmaria

@Schroedinger99 Plus you more than make up for it with your blinding personality.

@dolphinmaria

Fabulous one from @Schroedinger99 there on us Cafflicks "I think you're evil, bigoted and nasty". What, all of us?

{I thought I should respond to that:]

@Schroedinger99

@dolphinmaria No, not all of U. Chiefly the more doctrinal among U. I concede that most notional Catholics R far more open minded & tolerant

{For example I follow at least one Catholic on Twitter who is not in the least bit evil, bigoted, and nasty, but that's precisely because she does not go along with much of the doctrine of the church to which she notionally belongs. (Not sure she would put it quite like that of course, but that's how I see it.)]

@dolphinmaria

@Schroedinger99 *Scratches head*. Ok, so we've narrowed it down somewhat. D'you think orthodox Jews/Moslems/Gellis evil, nasty, bigoted too?

@Schroedinger99

@dolphinmaria usually yes

@dolphinmaria

@Schroedinger99 Is this based on intimate personal experience of significant numbers of Catholics. orthodox Jews etc?

@dolphinmaria

@Schroedinger99 Hurry up!

@Schroedinger99

@dolphinmaria no, it's based on the doctrines they preach & the inference that being orthodox they fully subscribe to those doctrines

@dolphinmaria

@Schroedinger99 Ok, so you don't actually know m(any) Catholics, Jews etc etc to say they are evil, nasty, bigoted. You just assume they are

@Schroedinger99

@dolphinmaria no, see previous tweet

@dolphinmaria

@Schroedinger99 Yes, see my previous tweet. You have no meaningful personal experience on which to base yr sweeping statement.

@Schroedinger99

@dolphinmaria U've lost me; ok I insist U go round all the atheists & ask us 1 by if we believe in a deity B4 pronouncing on such matters

@dolphinmaria

@Schroedinger99 Surely not? I merely demonstrated that your sweeping statement was wholly irrational.

@Schroedinger99

@dolphinmaria my point is that religious doctrine is evil nasty & bigoted so it follows that those who strongly subscribe to such R too

@dolphinmaria

@Schroedinger99 Yes, I knew what your argument would be before you articulated it, so to speak.

@dolphinmaria

@Schroedinger99 The more interesting question is why you hold such irrational prejudices about Catholics, Orthodox Jews, Moslems and Gellis.

@dolphinmaria

@Schroedinger99 Wild guess here - I think it's something to do with sexual politics. Just a wild guess.

[Yes it is to do with the attitude of most religions towards sex in general and women and homosexuals in particular, but also the indoctrination (and worse) of children, the promotion of mumbo jumbo, the insistence that our real human corporal lives are somehow lacking in worth - just a kind of trial run for the (un)real thing .... I could go on, and on....but I held my tongue.]

@dolphinmaria

@Schroedinger99 But I'm not sure that you've thought through your argument at all.

@Schroedinger99

@dolphinmaria I'm not making an "argument"; I merely expressed an *opinion* about ppl who hold certain types of belief

@dolphinmaria

@Schroedinger99 I was being kind when I referred to it as an argument.

And I was being kind (or at least restrained) when I referred to @dolphinmaria and her ilk as evil, bigoted, and nasty, but I let matters rest there .... until this morning.

I now invite you all to judge these exchanges for yourselves!


[NB These tweets were flying thick and fast last night. I've done my best to interleave the tweets and order them in the most logical fashion possible - not always the exact order in which I saw them. I've not left any out or put any in, but these tweets are all in the public domain and you can judge for yourselves whether you think I've misrepresented the exchanges in any way - as I have just been accused of doing ;-)]

Cold calling and the Information Commissioner's Office (ICO) - another regulator who doesn't

It is perhaps unsurprising that the bodies who "regulate" quack medicine are as bogus as the "medicine" they purport to regulate (see previous blog post). What is more difficult to explain is why so many others - of the dozens of regulators responsible for different domains of commerce and everyday life - are so utterly ineffectual.

Below I reproduce my recent correspondence with the Information Commissioner's Office - which is supposed to regulate data protection and online and telecoms based marketing.

After a couple of cold calls from a firm with whom I have never had dealings and who specialize in conning vulnerable people out of their meager savings on the pretext of taking claims forward or sorting out debt problems, I decided to track them down and report them to the ICO.

All my phones are registered with the Telephone Preference Service (TPS) and the ICO is responsible for enforcing the law against firms that ignore TPS registration.

I am still waiting to hear about this specific case, but in the meantime, I put in a Freedom of Information (FOI) request:

Please could you inform me exactly (since the ICO was formed) how many criminal prosecutions, cautions, enforcement notices, monetary penalty notices, injunctions, or enforcement orders* have been successfully sought or applied by the ICO against UK firms that, in violation of the relevant law, repeatedly call numbers that have been registered with the TPS.

* “Forms of regulatory action” listed at http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/data_protection_regulatory_action_policy.pdf

I received the following response:

Information Held

Before answering your specific request, it may help to explain that since November 2007 the ICO and the Telephone Preference Service (TPS) have had a procedure in place for complaints about the receipt of unsolicited ‘live’ (as opposed to automated) telephone calls to be referred to the ICO for investigation where the person receiving the call has previously complained to the TPS and, after the TPS have written to the offending organisation, further calls have been received. This constitutes a breach of the Privacy and Electronic Communications (EC Directive) Regulations 2003, known as ‘PECR’. These ‘repeat breach’ complaints are notified to the ICO on a fortnightly basis and on receipt are set up on our electronic case management system in the same way as complaints made directly to the ICO. All of these ‘repeat breach’ cases referred by the TPS are also recorded on a separate spreadsheet.

Since this arrangement began in 2007 the TPS has, to date, referred 665 complaints to the ICO in this way. Each complaint referred to us by the TPS is individually pursued by the ICO until it is resolved. Depending on the organisation that is complained about the outcome may be that we write to the organisation and seek their assurances that the complainant’s telephone number is suppressed from their marketing lists. Alternatively, in some cases we may use an individual complaint to determine that formal action is appropriate, which would usually be either a formal undertaking (which requires the organisation concerned to commit to a particular course of action in order to improve its compliance), or an Enforcement Notice.

Because a breach of PECR is not a criminal offence we cannot initially instigate a prosecution against an organisation for a breach of the regulations. Instead, where appropriate we can take enforcement action requiring the data controller to cease their practices. Failure to comply with an Enforcement Notice is a criminal offence, so if an organisation fails to comply with a notice served by the ICO we can then consider whether prosecution is appropriate.

You may find the following link to our website helpful, which gives information about the way in which the ICO considers complaints made under PECR:

http://www.ico.gov.uk/tools_and_resources/document_library/privacy_and_electronic_communications.aspx

The following link also explains about the amendments which have recently been made to PECR, and the new powers which have been given to the Information Commissioner as a result of these amendments:

http://www.ico.gov.uk/what_we_cover/promoting_data_privacy/~/media/documents/library/Privacy_and_electronic/Practical_application/enforcing_the_revised_privacy_and_electronic_communication_regulations_v1.pdf

In response to your actual request I can confirm that since PECR came into effect the ICO has issued 8 formal undertakings and served 9 enforcement notices against organisations for breaches of PECR in connection with live telephone calls. The details are as follows:



Details of all undertakings and enforcement action taken against organisations since August 2009 (including copies of the relevant undertakings and enforcement notices) can be found on the ICO website via the following link:

http://www.ico.gov.uk/what_we_cover/privacy_and_electronic_communications/enforcement.aspx

When regulatory action is taken against an organisation, it is usually as a result of a number of complaints being made to the ICO from individuals directly affected as well as those referred to us by the TPS. The two enforcement notices which are available on the ICO website (relating to SAS Fire & Security Systems and Direct Response Security Systems) have both been served on the basis of complaints received by the ICO from members of the public direct and via the TPS.

I can confirm that the ICO has not prosecuted any organisation for failing to comply with an enforcement notice relating to unsolicited live telephone calls, nor has it issued any cautions, monetary penalty notices, injunctions or enforcement orders for the same reason.

Summary: we have taken meaningful action against zero firms and served "enforcement notices" against nine.

I wrote back:

Since signing up all our phones with the TPS a number of years ago (and checking regularly to make sure we are still registered) I have been plagued by nuisance calls on my home and office phones. I have complained occasionally to the TPS and the ICO about these calls, but beyond asking the companies concerned to stop - which they usually do anyway after speaking to me (only to have their place taken by another firm) - it seems there is nothing you are prepared to do.
I realize most of these companies are based overseas and/or withhold their numbers (quite why they are allowed to do this I fail to understand) but some of them (such as the firm who rang me twice recently) are UK based and didn't even bother to hide their number.
In addition to reporting this firm to you (and not holding my breath) I also did a bit a research. It seems that this firm have a long history of ignoring TPS registration, are a bunch of fraudsters, and had an "Enforcement Notice" served on them several years ago by the ICO[*]. I also disvovered that the ICO has a range of penalties at its disposal that it can impose on firms that repeatedly and wilfully break the law in this way.
Armed with this information I decided to put in a FOI request to the ICO and discovered that, since the ICO began regulating in this area, exactly zero firms have been prosecuted or subjected to finacial penalties or cautioned or penalized in any meaningful way. I suggest that this fact entirely explains the problems I describe above.
So to come to the subject of my complaint: This is not about any specific case, it is about the ICO's manifest failure to regulate cold calling and punish firms that ignore TPS registration.
If your complaints department is not able to deal with general complaints of this nature, please advise me to whom I should redirect my complaint.

[*] I have since realized that the firm who rang me has a slightly different spelling from the firm listed above as under an "enforcement notice" and so (I assume) this firm has not previously been served with such a notice. I suppose the corollary of this is that I have no reason to assume that any of the above firms are fraudsters - though they are lawbreakers and pests. Sorry for mistake. The firm who rang me are, however, a bunch of fraudsters.


I received a paper reply which "appreciate[d] my frustration" but made it quite clear that the ICO has no intention whatsoever of regulating firms who ignore TPS any time soon.

I have just replied:

Dear ######

Thank you for your letter, but I’m afraid it entirely fails to explain what goes on (or, more accurately, doesn’t go on) behind the scenes at the ICO.

You say you can’t consider prosecution unless an organization fails to comply with an enforcement notice. Fine, so why not issue some enforcement notices to more than nine of the hundreds of firms involved? And why not prosecute the firms in this list of nine who have failed to comply with the enforcement notices they have been given.

You say you can issue civil monetary penalties of up to £500,000. Why not issue civil monetary penalties of up to £500,000 to more than zero of the firms who ignore TPS?

You suggest it is difficult to gather evidence, but this seems to be a matter of policy on your part rather than an obstacle to your policy: Why not:

1) Collect the evidence in one place rather than two (ie the TPS site and the ICO site – you could put in a through link)?
2) Use a simple web form instead of requiring complainants to fill in a Word form and then email it to you?
3) Receive complaints where only the number is known rather than requiring the complainant to track down the owner of the number (you could use the internet to trace the numbers yourself or even ask Ofcom who happily hand out the numbers to the spammers and scammers and presumably keep records).
4) Prohibit the use of CLI withholding by cold callers (OK you might need to involve Ofcom here).
5) Solicit the submission of evidence by engaging with sites like http://whocallsme.com/ and http://www.the-scream.co.uk/forums/f30.html?

I realize that you couldn’t possibly comment on what I am about to say next, but I also realize that you must know it to be true:

The firm “######” is clearly as bent as a £6 note. You would be doing everyone a favour (the victims of their frauds and the victims of their illegal cold calling) if you fined them £500,000 and put them out of business for good. Then publicized what you had done in the media!

In closing, should like to point out that I completely fail to understand whose interest you think you are serving by turning a blind eye to the spammers and scammers. It goes without saying that you are not serving the interest of the public. But nor are you serving the interest of commerce. I work for a private company and I know we all complain about “red tape”, but the deregulation and decriminalization of telecoms fraud (in all its forms) is resulting in a situation where normal commerce is becoming impossible. Every time I receive a phone call or an email or an SMS message these days I have to devote precious time and energy to making sure it is genuine. Ninety per cent of the time, it is not. I realize you could never fully eliminate telecoms fraud, but at the moment, you are not making the slightest attempt to even curtail it.

If your letter to me represents your final position, please inform me so I can take this matter to the Ombudsman.

Yours sincerely

Mike Ward

I await a response!

And here it is:

The response begins by pointing out that the company XXXXX who called me twice recently are not the same firm as the firm with a similar name against whom an Enforcement Notice was served - something I had already worked out for myself and corrected in a follow up message to the ICO (see [*] above).

The response goes on to say:

The TPS regularly updates the ICO on the ‘Top 20’ companies complained about and where they receive repeat complaints, we are notified and a case is created at the ICO.

Civil monetary penalties

The use of this power is limited to circumstances where:

• there has been a serious contravention of PECR; and

• the contravention was of a kind likely to cause substantial damage or substantial distress; and

• the contravention was deliberate or the person responsible knew or ought to have known that a contravention would occur and failed to take reasonable steps to prevent it.

The circumstances in which it is appropriate to serve a monetary penalty will be limited. The Commissioner does though take the view that the requirement to demonstrate the potential for “substantial damage or substantial distress” can be met by contraventions where the damage or distress to any one individual is more limited but large numbers of individuals are affected. Thus there is the potential to impose monetary penalties for serious contraventions of the PECR provisions relating to the sending of unsolicited marketing messages.

The Commissioner is required to issue guidance on how he proposes to exercise his powers to impose civil monetary penalties. Now that the power has been extended to contraventions of PECR he will have to revise his existing guidance. The revised guidance will follow broadly the same approach as the current guidance. The revised guidance has to be approved by the Secretary of State and laid before Parliament before it can be issued. In addition the Commissioner will consult those likely to be affected by the revised guidance. This means that the revised guidance is unlikely to be issued before October 2011.

The Commissioner does not intend to impose any civil monetary penalties for PECR contraventions until the revised guidance has been issued. In any case he is not able to impose penalties for breaches that took place before the coming into force of the 2011 Regulations on 26 May 2011. The Commissioner may nevertheless start to gather evidence of non compliance from 26 May 2011 onwards for future use in connection with the imposition of civil monetary penalties. Furthermore, and subject to the provisions of this note, there is still the possibility of the Commissioner using his existing enforcement powers in connection with PECR contraventions. His new third party information notice powers will be available to assist him with this.

What Next?

This letter marks the end of our internal complaints process.

If you believe we have provided you with a poor service, or if you believe we have not treated you properly or fairly then you may be able to complain to

The Parliamentary and Health Service Ombudsman, Millbank Tower, Millbank, London SW1P 4QP

All complaints to the Ombudsman must be made through an MP. I would advise you to first call the Ombudsman’s Helpline on 0345 015 4033 or visit her website at www.ombudsman.org.uk to see if she is able to assist you further.

If, however, your complaint relates to the way in which we have interpreted the law then the Ombudsman cannot help you. If you want to challenge our interpretation of the law, you should consider seeking legal advice.

Yours sincerely
etc.

So there you have it. Cold calling people who are registered with the TPS is (like phone hacking) illegal, but no action is ever taken against firms who break that law - though it might one day if one of them causes "substantial damage or substantial distress".

This is rather like saying: "it's illegal to drive at 100mph in a 30mph limit, but we'll only actually fine you if you knock someone down".

[NOTE I don't of course suggest that being called by these fraudulent scumbags is equivalent to being run over by a car, but if one of them ever stood in front of my car I'd be sorely tempted.]

Next stop the Ombudsman. As the ICO point out, he will reject my complaint: "if [...] your complaint relates to the way in which we have interpreted the law then the Ombudsman cannot help you", but perhaps something deep inside him will squirm slightly as he composes his refusal to do anything.

....... another postscript (I expect there will be many):

An email from the ICO about my specific complaint about the specific "claims management" firm that rang me up twice in spite of my TPS registration:

Dear Dr Ward

Thank you for your complaint form regarding the unsolicited marketing calls you have received from XXXXXX.

What we do
The Information Commissioner’s Office regulates the Privacy and Electronic Communications Regulations 2003 (PECR). The PECR are concerned with the way organisations send marketing material by fax, text, email and telephone. Marketing can include the promotion of goods, services, aims or ideals.

Direct marketing calls
Regulation 21 of the PECR says that unsolicited live direct marketing telephone calls cannot be made to a telephone number if:

• that number has been registered with the Telephone Preference Service (TPS) for 28 days or more; or
• the organisation has specifically been asked not to make marketing calls to that number.

Next steps
You have not advised us that you have already contacted the organisation to ask them to stop calling you. In addition you have not advised us of the telephone number on which you received the call. Telephone number xxxxx xxxxxx does not appear to be registered with the TPS although [my mobile number] does appear to be registered.

Unfortunately if the number is not registered with TPS we cannot pursue a complaint about these telephone calls under the PECR at this stage.

If the number is not registered we would strongly recommend that you now consider registering the telephone number with the TPS. TPS registration is free and takes 28 days to become fully effective.

The TPS’s contact details are:

Telephone Preference Service
DMA House
70 Margaret Street
London
W1W 8SS
www.tpsonline.org.uk
Registration line: 0845 070 0707
Complaints department: 020 7291 3320
Alternatively you could write to the organisation that is calling you to ask them to stop. We would suggest that you retain a copy of any correspondence you send as evidence. We would expect the organisation to act on this instruction within 28 days.
If the number you received the call on is registered with the TPS please advise us of the number. To help us deal with your complaint as quickly as possible, please reply to this email, being careful not to amend the information in the ‘subject’ field. Please quote the above case reference number in all future correspondence about this matter.

As we cannot progress your complaint without the information we have asked for it will now be closed until we hear from you again.

Yours sincerely

etc

Of course telephone number xxxxx xxxxxx does appear to be registered with the TPS if you enter it into their website (which I do at least once a year to make sure it is still registered) and I have sent Mr "etc" a link to the relevant confirmation message.

I shall post any responses!