House of Commons
|Session 2007 - 08|
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General Committee Debates
The Committee consisted of the following Members:
Chris Shaw, Mick Hillyard, Committee Clerks
attended the Committee
Public Bill Committee
Tuesday 29 April 2008
[Mr. Edward O'Hara in the Chair]
Power to take fingerprints and samples: England and Wales
Mr. David Heath (Somerton and Frome) (LD): I beg to move amendment No. 7, in page 7, line 5, leave out subsection (4).
The Chairman: With this it will be convenient to discuss the following amendments: No. 60, in page 7, leave out lines 7 to 10 and insert
(1AA) Where fingerprints or samples are taken from a person who is subject to a control order the fingerprints or samples shall be destroyed no later than six months after the date when such control orders shall cease to have effect..
No. 10, in clause 12, page 9, line 19, leave out subsection (5).
No. 61, in clause 12, page 9, leave out lines 21 to 24 and insert
(1AA) Where fingerprints or samples are taken from a person who is subject to a control order the fingerprints or samples shall be destroyed no later than six months after the date when such a control order shall cease to have effect..
Mr. Heath: I welcome you back to the Chair, Mr. OHara. We had a good sitting this morning. We made good progress in a state of almost complete cordiality. Let us hope we continue in that vein.
The clause deals with the power to take fingerprints and samples. The Minister has already made it plain that he considers that the fact that this was not a power open to officers in respect of control orders was an omission in the earlier legislation. I accept that. Although I have serious criticisms of the control order regime I understand why he would want to be able to take fingerprints and samples of those who are within it. Where I have a difficulty, and that is expressed in amendment No. 7 in respect of England and Wales and amendment No. 10 in respect of Northern Ireland, is in the retention of those samples, particularly their retention for purposes other than that for which they were originally taken.
Two principles are in play in English law at the moment. Fingerprints are not retained after the event in the case of people who are not accused of any offence, but DNA samples are. Many people have been critical of the fact that, irrespective of whether they have been released without charge or acquitted in a court, a group of people have had samples taken that are retained in the database. The rest of us, who have
David T.C. Davies (Monmouth) (Con): The hon. Gentleman makes a well-known case that has been explored. While it is possible to get quite emotional about this and the apparent lack of logic, in reality the vast majority of people who are arrested are arrested for a good reason. They may not be convicted of a crime afterwards, but many of them will have committed crimes and most of them will have associated in some way with other criminals.
Mr. Heath: I am very worried by that intervention, not least because I believe the hon. Gentleman holds the office of constable. If that is the case, he has a profound misunderstanding of the principle of innocence until found guilty. Consorting with criminals is a rather archaic offence, but even if one is not found guilty of that before a court, it is not something that I would immediately use in support of an argument. Anyway, I shall set that aside as I do not think that it is typical of the views of the Conservative party on this; it is the view of the hon. Gentleman to which he is perfectly entitled.
The subsections that I suggest could be removed are those that deal with retention. The clause states:
Where fingerprints or samples are taken from a person who is subject to a control order the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken
and it goes on to say
but shall not be used by any person except as described in subsection (1AB)..
I accept that. However, the measure is still a matter of some concern, because control orders, whether or not they are a good way of dealing with a particular problem, are exceptional as a class of punishment. They are a punishment without findings of guilt; punishment on suspicion, effectively. They are a way of ensuring that people are not a danger as a pre-emptive measure rather than post-charge and post-finding of guilt.
Therefore, to retain fingerprints and samples from such a person, against whom no charges have been put and against whom no case has been proven, seems to be at the very least dubious, and to do so after these samples have fulfilled the purposes for which they were taken is dubious in the extreme. So, I suggest that we need to take great care to examine whether this measure is proportionate and appropriate, and also to examine the value that it will have. It may be that the Minister can persuade me that there are circumstances in which this measure will be of enormous value and that it is right for these subsections to be included in the Bill, but I am not yet convinced of that case.
Mr. Dominic Grieve (Beaconsfield) (Con): Both this set of amendments and the next set, which stands in my name, touch on exactly the same issue, which has been
It is no secret that, on a number of occasions, I have expressed my growing concern at the departure from the normal rule, which used to prevail until the middle of the 1990s, that only the DNA and fingerprints of a convicted person were retained and placed on the national database.
Mr. Heath: I think that the amendments of the hon. and learned Gentleman are grouped in the same group, unless I am reading from a completely wrong selection paper. So he is perfectly in order to speak to his own amendments.
Mr. Grieve: I apologise and I am grateful to the hon. Gentleman, because I was looking one grouping further down and I thought that the groupings were separate. I am grateful to him for bringing that to my attention. Indeed, it makes absolute logical sense that they should be so grouped, because they are, as I said a moment ago, very similar.
Just to go back to where I was starting, I am on record as having previously expressed my concern about the departure from the principle of retaining DNA evidence only from convicted prisoners. In fairness, the first departure from that principle happened under a Conservative Government, when the decision was taken that the DNAin so far as knowledge of DNA existed at that time, because such knowledge was just beginning to emergeand fingerprints of individuals who had been acquitted of a crime should be retained. The present Government then expanded that to the retention of DNA and fingerprints taken from those people who were arrested.
I simply make the point to the Minister that I receive a regular stream of letters from individual constituents complaining about such retention of DNA and asking me to make representations to chief constables. In one case, it was a septuagenarian carer who had never been in trouble with the law before. She found that, as a result of a completely misplaced accusation from the woman she was caring for who had almost certainly gone senile, she was arrested, her DNA and fingerprints were taken and it was only about 10 days later that she was entirely exonerated of having allegedly taken money from the bank account of the woman she was caring for. She felt very badly about the retention of her DNA and fingerprints on a national database.
So there has been a growing chorus of disapproval. At some point, Mr. OHara, because I do not want to go down a byway in this debate, this issue will have to be revisited by Parliament, because it is deeply and profoundly unsatisfactory.
We must consider today the much narrower, but clearly linked, issues of whether we should have the right to take DNA fingerprints from individuals who are subject to a control order and whether we should subsequently be able to retain them. Although the first of those worries me as a development, I have no doubt that taking DNA and fingerprints from a person subject to a control order is justified. I say that with a certain
More worrying from my point of view is the question whether the making of a control order is simply being used as an excuse to obtain DNA and fingerprints for wider investigative purposes. It would be useful if the Minister told the Committee whether there has been a single instance of a control order being made on a person who has never been arrested. Something suggests to me that that is rather unlikely to arise, and it would be useful for the Committee to know whether it has ever happened. I can see that it is perfectly possible, at least in theory, for a control order to be made on a person who has never been subjected to arrest, and for the entire control order procedure to take place without DNA and fingerprints having first been obtained by the police.
The question is whether that material should be retained on the national database. The Government have chosen to expand the category of people from whom they can obtain DNA and fingerprints, and I have the gravest reservations about such retention in the case of a person who has never been arrested, charged or even acquitted of an offence, and certainly never convicted. If the Government wish to obtain DNA and fingerprints, the only possible rational justification must be that it is required directly for the enforcement of a control order. I might add incidentally that taking such material will inevitably give the Government and the police the opportunity to check whether the person concerned has been involved in any criminal activity that they wish to impute to them. It is inherently unlikely in most cases that the individual concerned will not have been arrested for something before the control order was made. That is why that is an important piece of information for the Committee to have.
Amendments Nos. 60 and 61 are intended not to delete proposed new subsection (1AA) entirely but to provide for a six-month period from the date when the control order comes to an end, after which the material would have to be destroyed and removed from the records. The Scottish system, which I think now operates a two-year period of retention when individuals have been arrested but not charged, seems to have considerable sense. I think that it applies also to individuals who have been acquitted. It provides for a period of retention in case something turns up that means that the material needs to be used, but gives a sense of reassurance that there will come a point when the material is removed.
This is something of a philosophical issue. I feel strongly, and it is my partys position, as the shadow Home Secretary has repeated on a number of occasions, that the system that we are creating, of finding opportunities to take DNA and fingerprints from individuals who have not been convicted of offences, is untenable. The clause might even be overturned if the decision of the European Court of Human Rights goes against the Government on that point. It might be possible to sustain it along the lines suggested in the amendments, but it would certainly not be possible to sustain it along the lines of the Governments proposals to keep the material in question indefinitely.
For those reasons, I find myself extremely troubled by the proposal, and the Minister will have to provide some compelling arguments to explain why we have to add to the already long list of groups that have to supply DNA and fingerprints. As the Minister knows, the alternative route that is floated from time to time is that all of us in this country should provide our DNA and fingerprints to the authorities. Perhaps it could be some form of civic celebration that takes place at the age of 11the age of criminal responsibility. Or, as Lord Justice Sedley suggested, every single visitor to this countryeven from the European Unionshould be welcomed on their arrival at Heathrow airport with a visitors visa and a requirement to provide DNA and fingerprints. That proposal at least has intellectually more sense than what we are doing at the moment. While I am not against the idea that we should make an exception for obtaining this material for the sake of enforcing control orders, I am deeply troubled by the suggestion that we should retain it for long-term purposes, having obtained it under another sleight of hand, which is being introduced for that purpose. I hope that the Minister can provide some rational justifications because at the moment I fail to see them.
The Minister for Security, Counter-Terrorism, Crime and Policing (Mr. Tony McNulty): Welcome back to our deliberations, Mr. OHara. I understand the thrust of what has been said, but I think that much of it is misplaced and, rather like the last set of amendments, belongs to the wider national debate. For better or worse, the national DNA database is controlled and governed under regulation by the Police and Criminal Evidence Act 1984. The points that the hon. Gentlemen make about the retention of DNA samples on that database more properly belong in a debate about the existence of the national DNA database in the first place. When he appeared before the Home Affairs Committee, the right hon. Member for Haltemprice and Howden (David Davis) said:
I am comfortable with the terrorism issue but I do think we need to review our whole approach to DNA retention, particularly of people who are exonerated, who are not charged, and certainly not convicted. So I am comfortable with using it in this context and having proper transfer arrangements in this context, but I think we have got to come back to the whole DNA issue on criminal law anyway at some point.
I concur with that although I might not agree with the outcome. I agree with Chief Constable Tony Lakeuntil recently, he was the Association of Chief Police Officers lead on forensics including DNAthat there needs to be a thorough review of the statutory architecture, including PACE, that governs the retention of DNA samples. I am very happy to have that debate.
I chuckled a wee bit when the hon. and learned Member for Beaconsfield referred to Lord Justice Sedley because I rather foolishly said on the Today programmeI thought that I was having a proper conversation rather than a Punch and Judy show with John Humphrysthat I had some sympathy with the logic of the case. Five days later, that was written up as, The Government have sympathy with a universal database. I never said that; I said that I had sympathy with the logic of the case. Given its intellectual logic, one would be a fool not to. Having looked at the matter
There has been consultation and a proposal to extend the existing criteria for the national DNA database to non-recordable offences. At the moment it covers only recordable offences, whether the person is finally convicted or not. We shall probably resist that, not least for the reasons suggested by others, and we believe that it is about right now. This is not the place to go through the litanyit is a huge listof cold cases and serious cases that were cracked in the first instance because a DNA sample was on the national database, often for entirely erroneous reasons. I am talking about serious murders, serious assaults, serious robberies, rape and a range of other cases.
I do not want to stray too far from the point, but it is clear that Stephen Wright in Ipswich would not have been caught bang to rights were it not for a DNA sample on the database. It was not the only evidence against him, but it pointed to his guilt, and it arose either because of a minor theft of a car or a minor assault or affrayI cannot remember which, because I confuse it with the Croydon case.
Mr. McNulty: There were minor fines in both cases. I take that point, but none the less, the murders were resolved only because of the DNA samples.
Martin Salter (Reading, West) (Lab): Perhaps I can help the Minister, because I was a member of the Home Affairs Committee when the debate was raging, as were other hon. Members here. Stephen Wright was convicted as a result of DNA collected following his arrest for a bar fight. However, does the Minister accept that LibertyI am sure that it will be prayed in aid when we discuss other matters relating to the Billhas argued that DNA should be collected only from convicted sex offenders? In that case, Steve Wright would not have been convicted, and other lives might have been at risk.
The Chairman: Order. I do not want the Committee to go too far down the road of discussing that illustrative example.
The point is that the balance must be right, if one accepts, as one should, that the national DNA database, including the elements that we are considering in the clause and amendments, is an investigatory and inquisitorial tool. It is not about a criminal record. It is not about a list of criminals. For the sake of public safety, given the polices 14,000-plus hits annuallyI cannot remember the exact numberand the 35,000-plus crimes that have been solved because someone is on that database, on that precautionary principle the balance must be about right now.
Tony Lake, the chief constable to whom I referred earlier, has some reservations about the time frame for retention, particularly for the young and those who are not convicted, and it is reasonable to explore that further during the review of the Police and Criminal Evidence Act 1984, but I am with the right hon. Member for Haltemprice and Howden (David Davis), who has the same name as the hon. Member for Monmouth but differs from him in so many ways.
The Minister will recognise that there is a low conviction rate for sex offenders. I fully accept that the system is not perfect, but it is probably the best of many bad systems that we could put in place. If we did not have it for offences such as sex offences and because of the low conviction rate, many people would get away with crimes that they otherwise would not.
Mr. McNulty: I agree entirely, Mr. OHara, but you will forgive me for peeking down the side alley that unites the right hon. Member for Haltemprice and Howden and me[ Interruption. ] It should, but occasionally all Members of Parliament with the name of David Davis or David Davies, however it is spelt, get it right. This is one of those rare occasions. I seriously believe that the balance is right. I agree that that debate is serious, but it is a debate for the wider PACE review. The right hon. Gentleman the Member for Haltemprice and Howden with reservations agreesI do not want to put words into his mouth save for those lifted from the Select Committeewith what we are trying to do in relation to controlees, but recognises that wider debate should and will happen too.
Mr. Grieve: I do not disagree with my right hon. Friend the Member for Haltemprice and Howden. I made it clear to the Minister that the logic of being able to take DNA and fingerprint material from somebody subject to a control order, for the purposes of its enforcement, seemed to be overwhelming. I do not believe that that would be successfully challenged in the European Court of Human Rights anyway. That said, the question, which cannot be divorced from the wider issue, about the accretional way in which we are building up the national database in which that will be an additional element, should be of concern to the Committee, because we do not have a strategy for that. Therefore the answer to the question of how many people that would cover at present is rather important. I worry that the way in which we are building up that database is undermining civil liberties. There can be no doubt about that. If it were not, the arguments that Mr. Lake put forward about how unfair it might be to those of 11 and 12 would be invalid. So we cannot escape the fact that there is an ethical issue.
Mr. McNulty: With the greatest respect, nor am I trying to. I am just saying that the substantive parliamentary debate about those ethical issues belongs elsewhere. I was going to say that I would continue on the amendments,
Mr. Grieve: But how many of those 13 or 14 have never been arrested? I suspectfrom reading the newspapers, but the Minister will be able to correct methat the overwhelming majority of those have been arrested at some point in the course of police investigations, prior to a control order being sought against them.
Mr. McNulty: With respect, I do not think that that is right, but I am sure that people who do not exist in the room will tell me in a moment. This note is probably not the answer, because it never works like that in my experience in Committee. I will come back to that. I do not think that that is right because, by definition, many of the controlees will be people about whom we have significant intelligence but on whom we have insufficient evidence, even in the first instance. So it does not absolutely follow that they would have been of interest to the police and arrested at previous stages. We will see if the information is available, and if I stand corrected I shall tell the Committee so.
I hesitated over 13 or 14 because there are a range of factorslet me say no more than thatthat may mean that that number fluctuates. Hopefully the Committee will indulge me and appreciate that I cannot say any more than that. Either way, globally at any given time, that will impact on say 10 to 20 people. I do not say that to diminish the ethical or civil liberties dimensions but just as a matter of fact. The purpose of the clauses is to put the power routinely to take fingerprints and non-intimate samples of controlled individuals on an equivalent basis to existing police powers in relation to fingerprints and non-intimate samples taken after arrest in the relevant jurisdictions. Rather like our debate on the previous set of amendments, that simply reflects the existing jurisdictions that we are trying to match in those instances, and no more than that. Current procedures in England, Wales and Northern Ireland allow the retention, with defined exceptions, of fingerprints and non-intimate samples after they have fulfilled the purposes for which they were taken, when individuals are arrested under the Police and Criminal Evidence Act or the Police and Criminal Evidence (Northern Ireland) Order. The corresponding provisions in schedule 8 to the Terrorism Act 2000, which apply in all home countries jurisdictions, also allow for the retention of fingerprints and non-intimate samples after they have fulfilled the purposes for which they were taken.
It is germane to add that the term fingerprints is clearly self-defining, although it also includes palm prints. Furthermore, non-intimate sample means a sample of hair, other thanclearlypubic hair; a sample taken from, or from under, a nail; a swab taken from any part of a persons body, including the mouth,
We do not believe that fingerprints or non-intimate samples taken from controlled individuals should be subject to different rules for retention, whether by deleting subsections relating to their retention or by specifying the destruction of the fingerprints or samples six months after the control order for the individual concerned has ceased to have effect, which, broadly speaking, is what the amendments would do. We oppose the amendmentsI have saved that until now. Rather than tease the Committee, my speaking note says right upfront, The Government are not in favour of the amendments. However, I like to work up to that point, rather than introduce our position at the beginning.
First, we consider it appropriate that fingerprints and samples of controlled individuals be retained on the same basis as samples taken from other individuals under PACE, PACE (Northern Ireland) or the Terrorism Act, because controlled persons are, by definition, suspected terrorists. I understand the point about definition that the hon. and learned Gentleman made about charge or no charge. It was a reasonable point, but I do not necessarily agree with how he built on it.
Secondly, and relatedly, the same safeguards and provisions apply as for other fingerprints or samples taken under PACE, PACE (Northern Ireland) or the 2000 Act. For example, samples may be used for specific purposes only. Thirdly, and again on a related point, we do not think it appropriate to debate the wider issue of the retention of fingerprints or samples under PACE or the 2000 Act in the narrow context of controlees.
Fourthly, and on a practical level, the retention of fingerprints or samples might help the police and agencies with future criminal or terrorist activities and investigations. By retaining controlled individuals biometrics, we strengthen the ability of the police to prevent, detect and investigate such crime and terrorism and to increase the chance of the individuals responsible being prosecuted. The powers might also help to get suspected terrorists off control orders and down the Governments, and everybody elses, preferred route towards prosecution. Finally, to demand the destruction of fingerprints or samples of controlled individuals could also cause unnecessary practical difficulties and confusion because it will run counter to all existing procedures. I argue that the Committee should not accept the amendment for those reasons.
Mr. Grieve: I confess that my mind started to boggle slightly when the Minister said that it would cause difficulty because it is contrary to all current procedures. At the moment, I am making successful representations, in a number of cases, to my chief constable, asking her to do just that. He has made some good points, but that perhaps is not the best one.
Mr. McNulty: My mind also boggled a little when I read it out. I, too, think that it was the weakest of the points. Under existing PACE laws, chief constables
My argument is that the amendments would run counter to current procedures for the specific set of individuals being debated. I contend very strongly that those individuals, on all balance and proportionality, should be on, and stay on, the DNA database once we have obtained those samples. I have made my reasons for that clear: national security and the ability to assist in subsequent terrorist cases. We must strike that balancealthough I concede that that wording is a bit flabby. The PACE review is looking, as part of that wider national debate, precisely at what sort of discretion the chief constable should have and what criteria should be utilised, but I do not want to address that point again now.
Having agreed on balance that it is perfectly justified and proportionate to take the samples in the first place, given the nature of the individuals concerned, it would be illogical to apply a different set of rules to the retention of those samples for the purposes of the Bill, rather than look at the issue and others, whatever the philosophy, in the wider context of a debate about PACE.
Mr. Grieve: If we still had the old system that was used in the early 1990s, whereby all DNA and fingerprints were destroyed if a person was acquitted, and if the Government came to the Committee and asked for a single exception to be made in the case of control orders, I would not necessarily be unsympathetic to such a request. I remain concerned, however, as I think the Minister understands, at the way in which we are increasing how we capture DNA, without having a rational debate about it.
Mr. McNulty: I have partly indicated that I broadly concur with that, but in the context of the Bill and for the purposes outlined in these clauses, my balanced judgment perhaps goes the other way to that of the hon. and learned Gentleman, although I am not even sure in which direction he would go, given his contributions. I do not think that there is much between us. During the John Humphrys interview to which I have referred, I did saywhen I could get a word in edgewaysthat it was perfectly reasonable to have a substantive debate on issues relating to retention and on all the other matters that Tony Lake and others have referred to in the PACE review, but that is for another time.
We are where we are, by accretion or otherwise. I am saying that controlled individuals are such a particular group that, in the interests of our fight against terrorism, we should not only take samples, but retain them. We should certainly retain them on the basis of the existing laws that prevail for everyone else with regard to the DNA database. Whether that should change is a matter for another national debate. When we have that debate, I will argue strongly, in relation to the retention of samples from people who are not convicted, that samples should not only be taken from those individuals, but be retained for as long as utterly possible in the interests of national security. That is why I ask, on balance, that both groups of amendments be resisted.
Mr. Heath: I am grateful to the hon. and learned Member for Beaconsfield and to the right hon. and unlearned Gentleman, the Minister.
I am grateful for the contributions, but a few points need to be made about the debate in which we have just enjoined. I accept from the Minister that it is consistent with the control order regime for this power to exist. I do not accept the control order regime as it is constructed, and he knows that I do not think that it is working well and see it very much as an exceptional circumstance. However, while the present regime is there, the power to take samples from those individuals is consistent with it.
The Minister is right to say that retention is a wider issue than can be addressed by the narrow confines of the amendments and, indeed, the clause before us today. I sympathise with his problems with the Today programme and with having to explain the logic of a universal database: I have used exactly the same words before and been shot down in flames by those who have misunderstood me and thought that I was advocating a universal database when all that I had said was that it is more logical than the current situation. It has an internal logic that the present situation does not.
I am not quite so happy with the view that the partial databaseincluding, as we have debated this afternoon, not only those who have been found guilty of a range of offences, but those who have been arrested but freed without charge or those who have been charged and found not guiltyis entirely the innocent investigatory tool that it has been suggested it is. It is a wonderfully powerful investigatory tool and I would not want to deny the police the opportunity of using it to investigate crimes properly.
I cannot remember if certain Members were on the Bill Committee when we introduced the DNA sample regime a few years ago; I am pretty sure that I was, because I seem always to be on such Committees. We Liberal Democrats did not argue against the principle of a DNA database. We said that, to make it effective, either people who are innocent of any crime should not be on it or everybody should be on it. The problem with a partial database is that, even with the increased sophistication of DNA testing and comparing, there are false positives. People are more likely to come circumstantially under suspicion as a result of being on the database than if they are not on it. Whereas it can be argued that that is a price that someone has to pay for having been convicted of a crime, it is hard to sustain the viewother than by the hon. Member for Monmouth, who feels that someone who looks shifty ought to be on the databasethat somebody who is innocent of a crime ought to have that risk attached, in addition to the fact that for every set of DNA characteristics there are probably six, seven or eight people in this country who are sufficiently close to provide a false match. Many Members have always been concerned about that.
The Minister says that this is not the time or place to have this argument and I agree. He is right to say that.
It could be argued that there is likely to bewe cannot say that there will definitely or even probably will bea higher level of culpability in respect of someone against whom sufficient intelligence evidence has been put together to ensure that a control order has been secured. In such a case, there is likely, perhaps, to be a higher level of culpability than in respect of someone against whom no charge has been preferred and who has simply been picked up by the police and released without charge. That is a proper inference to draw from the circumstances. If any group is the first to be removed from the database, it should not be the controlees, but should be those who are released without charge because they have not committed any crime and against whom the police have no evidence on which to charge them.
We have to use opportunities such as this in Committee to rehearse these arguments, even if they will return time and again. I welcome what the Minister said about the need for a wider review of this matter. It is essential that we do that. However, I do not share his phlegmatic assertion that the present situation, with the inclusion of these samples, is where we ought to be. I have deep concerns about that. However, we are right to raise the issue.
The hon. and learned Member for Beaconsfield and I have raised quite proper concerns in todays sitting and we have used this opportunity to register them. That is a proper use of the Committee. Having said that, I do not intend to press the amendment to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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 amendment s proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.
Question agreed to.
Clause 10 ordered to stand part of the Bill.
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