Criminal Justice and Police Bill

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The Chairman: With this it will be convenient to take Government amendment No. 179.

Mr. Clarke: These are technical amendments.

Mr. Simon Hughes: Only because I was told that they were not, could the Minister explain what they do?

Mr. Clarke: Yes. Amendment No. 177 makes it clear that the amendments to the Police and Criminal Evidence Act 1984 in clause 81 do not affect the operation of section 20 of the Immigration and Asylum Act 1999, which allows police to disclose fingerprint data to the Home Secretary for immigration purposes. Equally, amendment No. 179 makes it clear that the amendments to the Police and Criminal Evidence (Northern Ireland) Order 1989 in clause 82 do not affect section 20 of the 1999 Act. The amendments preserve the existing gateway in the 1999 Act for disclosure of police information to the Home Secretary for use for immigration purposes. These are technical amendments, but perhaps the hon. Gentleman disagrees.

Mr. Hughes: I hear what the Minister says. We had a debate about this sort of issue during the passage of what became the Immigration and Asylum Act 1999. I am not in a position now to say that I object to the amendments, but I will consider them in light of the Minister's explanation. If we need to return to the issue later, we can.

Amendment agreed to.

Mr. Charles Clarke: I beg to move amendment No. 178, in page 69, line 15, leave out subsection (5) and insert—

`( ) The fingerprints, samples and information the retention and use of which, in accordance with the amended provisions of section 64 of the 1984 Act, is authorised by this section include—

(a) fingerprints and samples the destruction of which should have taken place before the commencement of this section, but did not; and

(b) information deriving from any such samples or from samples the destruction of which did take place, in accordance with that section, before the commencement of this section.'.

The Chairman: With this it will be convenient to take Government amendment No. 180.

Mr. Clarke: These amendments will allow fingerprints and samples that have already been taken on suspicion of involvement in a crime, and that would have been destroyed under the existing provisions in section 64 of the Police and Criminal Evidence Act 1984 and article 64 of the Police and Criminal Evidence (Northern Ireland) Order 1989, to be retained and the information from them used for the purposes defined in the Bill. These small amendments will tighten up the situation and give effect to the proposal that we have already debated.

Mr. Simon Hughes: I am clear in my mind about the issue that arises from the amendments. If they allow the use of samples that had been illegally held before this Bill came into force to be held legally afterwards, could the Minister respond to the proposition that that would be in breach of various and fairly obvious provisions of the Human Rights Act 1998 and the convention behind it, because the process would have been rendered fair where it would have been unfair at a previous time? We therefore get into arguments about a potential breach of articles 6 and 13 of the European convention. Under the 1998 Act, both are part of domestic law. My understanding is that the original subsection (5) of clauses 81 and 82 is regarded by those who have considered it as within the Act and compatible with the convention, but the amendments are much less so. They would argue that the amendments are not consistent with the convention.

Mr. Clarke: On article 6, I have already said that the type of evidence that we are discussing is among the most compelling and objective evidence in the fight against crime. That is the central part of our discussion. On one hand, the evidence may conclusively establish involvement in a serious crime; on the other, which is at least as important, it may conclusively exonerate someone who might otherwise have been convicted on the basis of circumstantial or confessional evidence. It is in the interests of justice and the defendant for that evidence to be available to the court. If we take the examples that we discussed earlier, no sensible person would say that an injustice had been done if conclusive evidence of involvement in rape and murder led to his conviction.

Neither the convention nor English law require that evidence that was obtained or held unlawfully is necessarily inadmissible in a trial. The courts will of course retain their discretion under section 78 of PACE to exclude DNA evidence that should have been destroyed under existing law if they believe that it would have a detrimental effect on fairness.

The hon. Gentleman raised article 13. I have already said that the Government do not believe that the substantive provisions in the clause or the amendments in terms of the transitional arrangements give rise to violation of the convention rights. We do not believe, returning to our earlier discussion about rights and liberties, that the current rights given under PACE to destruction of samples are protected by the convention. It follows from that that I do not believe that a separate issue arises under article 13. If an issue of fairness arises as to the admissibility of evidence during a criminal trial, section 78 of PACE provides the court with the means to exclude that evidence. I hope that that addresses the Human Rights Act issues raised by the hon. Gentleman and that the Committee will agree to the amendment.

Mr. Hughes: I understand what the Minister says. We will take advice on the matter, but I do not seek to divide the Committee.

Amendment agreed to.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 8, Noes 2.

Division No. 42]

AYES
Bailey, Mr. Adrian
Clarke, Mr. Charles
Grogan, Mr. John
Hamilton, Mr. Fabian
McCabe, Mr. Stephen
McDonagh, Siobhain
Sutcliffe, Mr. Gerry
Thomas, Mr. Gareth R.

NOES
Ballard, Jackie
Hughes, Mr. Simon

Question accordingly agreed to.

Clause 81, as amended, ordered to stand part of the Bill.

Clause 82

Provision for Northern Irelandcorresponding to s. 81

Amendments made: No. 179, in page 70, line 40, at end insert—

`( ) In paragraph (8)(a) (saving for power conferred by Immigration Act 1971), after ``1971'' there shall be inserted ``or section 20 of the Immigration and Asylum Act 1999 (disclosure of police information to the Secretary of State for use for immigration purposes);'.

No. 180, in page 70, line 41, leave out subsection (5) and insert—

`( ) The fingerprints, samples and information the retention and use of which, in accordance with the amended provisions of Article 64 of the Order of 1989, is authorised by this section include—

(a) fingerprints and samples the destruction of which should have taken place before the commencement of this section, but did not; and

(b) information deriving from any such samples or from samples the destruction of which did take place, in accordance with that Article, before the commencement of this section.'.—[Mr. Charles Clarke.]

Question proposed, That the clause, as amended, stand part of the Bill.

Mr. Hawkins: I do not want to repeat the lengthy and thorough debate on clause 81. However, similar issues arise in regard to clause 82, with the additional concern, in the context of prosecutions in Northern Ireland, of the many sensitive terrorist cases. We all know of the many apparent miscarriages of justice revealed by subsequent re-analysis of forensic scientific evidence—fingerprints and the like. I am sure that the Minister recognises that it would therefore be wrong simply to allow the clause to go through on the nod without Opposition Members raising the kind of concerns that we had on clause 8. If I may say so, that goes double for clause 82 because of the sensitive issues relating to the Province.

Mr. McCabe: I appreciate the point, but would not the hon. Gentleman accept that special circumstances obtain in Northern Ireland? Because of difficulties with witnesses, the demand for forensic evidence may be even greater there than on the mainland. That, surely, is a persuasive argument for taking that route.

5.30 pm

Mr. Hawkins: Not for the first time, the hon. Gentleman makes a good point, and I agree with him. My experience in the courts of England and Wales included one or two cases that involved special branch officers and members of the security services sitting at the back of the court. Indeed, the person with whom I did my pupillage as a barrister was involved in one of the biggest terrorist cases of those years. I do not say that the Opposition are opposed in principle to what the Government suggest. As the Committee knows, we believe that the Government have mishandled some of the issues relating to Ulster in recent years, but it would be out of order, Mr. Gale, if I went down that road now. We could say much about Northern Ireland, but it might not be in order.

We want to reinforce the concerns that were expressed about clause 81. The Minister said in response to that debate that it was a perfectly principled position to take to vote against the whole of clause 81; indeed, the Liberal Democrats took it. We did not do so, and we will not vote against clause 82; but the same issues will arise on Report. Given that there are no members of the minority parties on the Committee—

Mr. Heald: There are the Liberal Democrats.

Mr. Hawkins: I should have said in relation to Ulster. Ulster Unionist Members and Social Democratic and Labour Party Members may want to speak on this clause on Report. It is therefore right to place on the record the concerns that we expressed about clause 81 and to say that the points that we made on our amendments to that clause apply also to clause 82.

 

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Prepared 8 March 2001