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As my hon. Friend the Member for Ashford (Damian Green) said, the only guidance appears to be that contained in the Association of Chief Police Officers “Retention guidelines for nominal records on the Police National Computer”. As he also said, it is a masterwork of opacity: it appears to be designed to defeat the efforts of the very best Googler, and I certainly had huge difficulty finding it on the internet earlier this week.
We have heard that the guidelines are clear to the extent that they positively advise obfuscation. They say that the first response, which is to be automatic, to a request for destruction is to refuse it without further consideration. However, we are told that if the applicant persists, the chief constable for the relevant force is to make the decision, yet the guidelines make it abundantly clear that the discretion vested in the chief constable is to be exercised only rarely. We are told that there is a library of precedents to which chief constables can have access when deciding the basis on which to make their decision, but that library—as far as I know—is not available to the public.
Like the right hon. Member for Leicester, East (Keith Vaz), I have constituency experience of trying to remove a constituent’s details from the database. The incident involved a retired senior police officer who had been charged with a serious offence of misconduct in public office. The investigation and the period before trial took eight months; needless to say, it was a period of extreme anxiety for my constituent and his family. Ultimately the case came before Chester Crown court, where it collapsed in circumstances that can be described only as complete disarray on the part of the prosecution. Subsequently, my constituent, who had suffered extreme trauma as a result of the experience, tried to have his name removed from the database. We are talking about digitised details of the very essence of an individual—in this case, a completely innocent individual who had been exonerated by the Crown court yet who nevertheless found that his data were on the national database in the company of the biometric data of convicted rapists, terrorists and murderers. Understandably, he wanted his details removed.
In response to my request, I received a letter from the chief constable of North Wales police. The letter broadly followed the template that my hon. Friend the Member for Ashford mentioned—template A in appendix 2 to the ACPO guidelines. It followed the guidelines almost word for word, except that at one particular juncture the chief constable decided to ski off-piste. He said:
“The Criminal Justice and Police Act 2001 amended the Police and Criminal Evidence Act 1984, providing the police in England and Wales with the power to retain DNA samples and fingerprints, relating to persons following acquittal at court or other discontinuance of a case.
I must admit to being personally surprised by this decision and I am not sure parliament fully understood the implications of its decision. However, the Act is clear enough and I am bound to act by its provisions.”
In other words, it would appear that the chief constable of North Wales police decided to enter the debate about the retention of DNA ahead of the House. He clearly thinks that the current legislation is nonsense. His letter continued:
“If I were to exercise my discretion in this case, then I would have to exercise my discretion in similar cases, thus it would not be a rarity.”
There is, therefore, almost no circumstance in which a chief constable will exercise that discretion, which is a lamentable state of affairs. Clearly, the present arrangements are opaque and unsatisfactory.
Mr. Hogg: I entirely understand the point my hon. Friend is making. The lack of opacity is a powerful argument, as is the lack of consistency and perhaps the lack of a statutory basis for the arrangements. Bearing in mind the fact that all criminals were once people of good character—to use the technical phrase—is it a matter of principle to him that the DNA of an innocent person should not be on a database? If so, what is that principle?
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Mr. Jones: Personally, I feel that as a matter of principle the DNA of an innocent individual should not be kept on the database. My view is that the database is a tool to be used in the fight against crime and there should not be a presumption that information about innocent individuals should be on such a database. There is of course a strong argument for putting every individual in the country on the DNA database. That is part of the debate. I happen to take the contrary view; however, in this debate we are concerned about consistency and transparency, and as we have inconsistency and opacity at present, I strongly support the amendment. It would put in statutory form provisions for guidelines that Government agencies could access and which gave consistency of approach to those who may be aggrieved by the presence of their DNA on the national database.
At present, however, the issue of whether DNA records should be removed from the database may depend in some cases on nothing more than the state of digestion of the relevant chief constable. That cannot be a healthy state of affairs, so I strongly support the amendment.
Mr. Coaker: I thank all Members who have contributed to this important debate about the DNA database, DNA more generally and what is right or wrong in how things are done at present. As some Members said, whatever the rights or wrongs of the amendments, they have generated debate and a discussion of the rights and wrongs of the policy, not only in this House but in the other place. I shall try to cover the various points made by my right hon. Friend the Member for Leicester, East (Keith Vaz) and other Members, but no doubt if I miss anybody out they will intervene.
I beg to move that the House disagrees with the Lords in their amendment No. 2, which would, as we know, add a new clause 14.
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. We have to dispose of the amendment before the Minister moves the motion to disagree. At the appropriate moment, I shall find an opportunity to call on him to do so.
Mr. Coaker: In that case, I shall turn to the amendments proposed by the hon. Member for Ashford (Damian Green). We recognise the concerns about the existing retention policy. The hon. Gentleman has tried to show that new clause 14 would actually include the security services. I realise that is a point of dispute, but the guidelines, as proposed, would apply to samples taken by Government agencies, and would thus include samples acquired during terrorist investigations.
Chris Huhne: Does the Minister accept that if, for example, the guidelines made it clear that in an ongoing investigation it was perfectly legitimate for Government agencies to hold DNA found and identified at the scene of a crime—terrorist or otherwise—it would meet his objection?
Mr. Coaker: I think the hon. Gentleman is now trying to qualify the problems with the new clause. In this instance, I agree with the point made by the hon. Member for Ashford. The hon. Member for Eastleigh (Chris Huhne) can ask why we do not do this or that, but in effect if we agreed to new clause 14 we would in primary legislation be allowing circumstances in which DNA samples from terrorists could be used, and in that sense we could damage the capacity and capability of the security services.
Mr. Hogg: My understanding of subsection (1)(c) of the proposed new clause is that it would enable the Secretary of State to establish circumstances in which the request was refused. One would have thought that the regulations provided sufficient latitude, under that specific provision, to enable sensitive information to be withheld.
Mr. Coaker: All I can say is that there is doubt in the mind of the security services and those who have responsibility for these matters. Indeed, the right hon. and learned Gentleman’s party’s Front-Bench spokesmen and many of his colleagues accept the concerns that have been expressed about the fact that primary legislation would be put on the statute book containing provisions that theoretically and practically compromise the security services’ ability to act.
Simon Hughes: May I say to the Minister, respectfully, that he has been badly briefed? That cannot be the interpretation—to be blunt, that is a completely extended interpretation. The new clause that has come from the Lords states:
“The Secretary of State shall by regulations publish national guidelines for governmental agencies”.
That allows thereafter the definition of the governmental agencies to be covered by the guidelines. That is the first point. The second point is the one picked up by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg)—that proposed new subsection (1)(c) allows the possibility of qualifying that. For two reasons, therefore, what the Minister fears would not happen and need not happen. He really should not try to persuade us otherwise, based on a very poor briefing and a poor argument.
Mr. Coaker: I do not regard the briefing that I received as very poor. No doubt the hon. Member for Ashford received the same—extremely worrying—briefing as I did, and that is why we have reacted as we have.
Responding to the broader debate, we recognise that there are concerns about the present retention policy, but there is strong and convincing evidence to support the current approach. I shall come to that shortly, but first I remind the House that statute in this area under the Police and Criminal Evidence Act 1984 has been considered by Parliament twice within the past seven years. First, the Criminal Justice and Police Act 2001 amended PACE to allow DNA and fingerprints taken from those charged to be retained indefinitely. The
amendments arose from decisions in the Court of Appeal relating to two cases in which compelling DNA evidence linked one suspect to a murder and another to a rape, but could not be used, and neither man could be convicted. That happened because at the time the matches were made, either the defendant had been acquitted or a decision had been made not to proceed on the offences for which DNA profiles had been taken. Secondly, the Criminal Justice Act 2003 amended PACE to allow the police to take DNA and fingerprints without consent from anyone arrested for a recordable offence and detained in a police station.
The provisions of the Criminal Justice and Police Act gained Royal Assent on 11 May 2001. According to the most recent figures that we have, between that date and 31 December 2005 there were approximately 200,000 DNA profiles on the national DNA database that would previously—before the 2001 legislation was enacted—have had to be removed because the person had been acquitted or the charges had been dropped. Of those 200,000 profiles, approximately 8,500 profiles from some 6,290 individuals have been linked with crime scene profiles involving nearly 14,000 offences, including 114 murders, 55 attempted murders, 116 rapes, 68 sexual offences, 119 aggravated burglaries and 127 offences of the supply of controlled drugs.
I take the point that a number of Members, including the right hon. Member for Haltemprice and Howden (David Davis) and, I think, the hon. Member for Eastleigh have made. As I told the House of Lords Committee this morning, I will investigate further and share the information I find with the House. However, I agree strongly with the point made by the right hon. and learned Member for Sleaford and North Hykeham: it is important to consider the deterrent effect, as well as the links that are sometimes made with other crime scenes. Where I do not agree with him is on a national DNA database. We have tried to move forward in a proportionate and necessary way, without moving down the route of having a national DNA database.
The successful detection and conviction of offenders, combined with the absence of interference in the daily life of people on the database who do not commit crime, are compelling reasons to retain the existing approach. As the debate has highlighted, there is concern in some quarters about whether it is proportionate to retain the DNA of people not subject to charge or conviction. However, I think we should focus on the crimes that have been solved thanks to that DNA database. I am sure that the House agrees that that is compelling evidence, drawn from real events.
Keith Vaz: I am sorry, but I do not think that the Minister is answering the points made in the debate. He is certainly not answering our case, outlined by my hon. Friend the Member for Luton, South (Margaret Moran), that different chief constables decide to interpret requests differently. The position is shambolic; it must be tidied up.
Mr. Coaker: I will get to that point later. I was stating our belief that, in general, the policy is effective because it leads to crimes being solved that would not otherwise be solved. I would not do my right hon. Friend the discourtesy of not answering the specific points he made.
The position on the current statutory provisions was upheld quite strongly by the House of Lords in 2005, in the case of S and Marper v. R. However, the House will know that the matter is currently before the European Court of Human Rights. We have defended our decision, but we await the decision of that Court, which we understand may come before the end of the year.
The text of the amendment would require the Secretary of State to issue guidance relevant to all agencies holding DNA and fingerprint samples on the operation of their retention, use and destruction of fingerprints and samples. Let me say why the guidelines contained in the amendment are unnecessary. The rights of individuals from whom fingerprints and samples are taken by the police under PACE or under the Terrorism Act 2000 are already contained in guidance, including PACE codes C and D, the ACPO retention guidelines for nominal records on the police national computer, and guidance on subject access requests. However, let me say to my right hon. Friend and other hon. Members that I admit there is work to be done to publicise those rights more widely.
I undertake to work with the police to bring together the current guidelines covering the matters raised in the amendment, and to publish them more widely. The guidelines will need to be reviewed in the light of the outcome of the S and Marper case, and a PACE review is currently under way. However, I give my right hon. Friend an undertaking to ensure that the points that he and others have made are fed into the PACE guidelines review, so that we can improve the process.
Mr. Grieve: I am grateful to the Minister for those comments. Will he also ensure that if that work is carried out as he says it will be, some regard will be had to the Scottish system? It is worth pointing out that the system we are discussing is not ubiquitous to the entirety of the United Kingdom, and that the Scottish legal system succeeds in running a process whereby the DNA of innocent people is removed from the DNA database after—I believe—two years.
Mr. Coaker: I know that a different approach is taken in Scotland, and that is a matter for the Scottish Executive.
In an attempt to reassure my right hon. Friend the Member for Leicester, East, I repeat that we are trying to increase understanding and awareness of police powers and the rights of individuals. We know that work needs to be done on improving the notice of rights and entitlements provided to every person arrested and detained at a police station. As part of the PACE review, I will consider some of the points he made with a view to ensuring greater consistency across the country and less of the variation that he described. I shall also try to do something about some of the problems of unfairness that he highlighted. I hope that that goes some way toward meeting his concerns.
Keith Vaz: It certainly goes some way to meeting the objections that I raised. However, the point remains: if the only exception is to be that mentioned by the hon. Member for Ashford (Damian Green), I am not sure what rights the Minister is proposing to publicise. There are no rights in these circumstances. If the exception remains as it is, there is no point in a person writing in to exercise the rights that have been publicised. Is my hon. Friend giving me an assurance that the exception will be extended?
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Mr. Coaker: What I am saying to my right hon. Friend is that although I cannot predict the outcome of the review of the guidelines, I will ensure that we look into the points that he makes and the concerns that he raises, including his worry about variability and the problems that people have in getting their DNA deleted from the database once it is on it. Certainly, we will try to see whether more can be done about that. As he says, it is no good just publicising existing guidelines if there is no change to the situation. All that I can say to him is that I will look into the matter. I cannot predetermine the outcome, but his points are well made, and I will certainly consider them while the review is going on.
Margaret Moran: I thank my hon. Friend for the approach that he is taking on the issue. Will he ensure that when guidance is issued after the PACE review, the Home Affairs Committee will be able to take an overview of it? As points have been made about confidence, including public confidence, it is important that Members of this House are confident that there will be transparency and consistency. Will he indicate how monitoring will take place, so that incidents such as those to which I referred, in which different approaches were taken by different constabularies, can be reported and addressed, if there are failures?
Mr. Coaker: My hon. Friend makes some important points, but I cannot tell her what will happen as a result of the review, or make commitments that I am just not in a position to make. I can try to reassure her and my right hon. Friend the Member for Leicester, East by saying that I have heard what they have said about how the DNA database currently operates. I will look into the issues to do with the deletion of samples that are on the database. I will see that the concerns that have been raised are incorporated into the review. I will bear in mind not only what my right hon. Friend said about the need for change, but the points that my hon. Friend the Member for Luton, South made about the need for monitoring. I hope that that provides some reassurance.
Mr. Coaker: If I may, I shall make some progress.
There is a further consideration that led us to the conclusion that we reached, aside from the position regarding the policy on the retention and use of fingerprints and samples. Lords amendment No. 2, inserted in the other place, would have serious adverse consequences for the retention and use of fingerprints and samples. Only samples held by the Security Service and Secret Intelligence Service would be covered, because the amendment refers to “governmental agencies”. However, it does not cover the police, who are responsible for the retention of PACE samples.
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