 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Counter-terrorism |
Counter-Terrorism Bill |
The Committee consisted of the following Members:Chris
Shaw, Mick Hillyard, Committee
Clerks
† attended the
Committee
Public Bill CommitteeTuesday 29 April 2008(Afternoon)[Mr. Edward O'Hara in the Chair]Counter-Terrorism BillClause 10Power
to take fingerprints and samples: England and
Wales
4
pm
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.
O’Hara. 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
happily never been arrested, charged or put before a
court, are not subject to that requirement. We do not have to give
samples. The database therefore is made up of a skewed sample. If it
were skewed simply towards those who had been found guilty of a crime,
I could understand it. I could understand the logic of having a
universal database. What I cannot understand is a database of those who
have been found guilty of a crime and those who have expressly not been
found guilty of a crime but who have their samples
retained.
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
rightly highlighted by the hon. Member for Somerton and Frome. Although
they both suggest a slightly different way of approaching the matter,
and I shall come on to my amendments at the right time, nevertheless
their main thrust is essentially
identical.
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 DNA—in so far
as knowledge of DNA existed at that time, because such knowledge was
just beginning to emerge—and 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.
O’Hara, 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
amount of hesitation, but it seems to me that it should be done for
compelling reasons of proportionality. The principal one is that the
enforcement of a control order may require the taking of DNA and
fingerprints, particularly if an order is breached. That in
itself justifies doing it.
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
party’s 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
Government’s proposals to keep the material in question
indefinitely.
4.15
pm
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
11—the age of criminal responsibility. Or, as Lord Justice
Sedley suggested, every single visitor to this country—even from
the European Union—should be welcomed on their arrival at
Heathrow airport with a visitor’s 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. O’Hara. 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 Lake—until recently, he was the Association of
Chief Police Officers’ lead on forensics including
DNA—that 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” programme—I thought that I was having a
proper conversation rather than a Punch and Judy show with John
Humphrys—that 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
in the wider criminal sense—I will return to
the amendments in a moment—I am comfortable that we have it
about right, if we start from the philosophical assumption that the DNA
database is not a rogues gallery, a list of the guilty and
convicted—it patently is not that—or a list of those who,
but for a bit of luck, are probably criminals anyway, which is along
the lines of the point made by the hon. Member for Monmouth. Again,
that is a perfectly fair point, but not one with which I would
necessarily agree.
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 litany—it is a huge list—of 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 affray—I 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 Liberty—I am sure
that it will be prayed in aid when we discuss other matters relating to
the Bill—has 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
police’s 14,000-plus hits annually—I cannot remember the
exact number—and 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. O’Hara,
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 agrees—I do not want to put words into his
mouth save for those lifted from the Select Committee—with 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,
but perhaps, following your admonishments, Mr. O’Hara,
I should start on the amendments, because that is an important point.
At the moment—I will not go into details for obvious
reasons—the number is about 13 or 14. That is relatively low; at
its peak it has only ever been about 18. If the ethics are wrong, one
is too much, so I am not suggesting at all that because 13 or 14 are so
few it does not matter terribly
much.
Mr.
Grieve:
But how many of those 13 or 14 have never been
arrested? I suspect—from reading the newspapers, but the
Minister will be able to correct me—that 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 factors—let
me say no more than that—that 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.
4.30
pm
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
than—clearly—pubic hair; a sample taken from, or from
under, a nail; a swab taken from any part of a person’s body,
including the mouth,
but not any other bodily orifice; saliva, or a footprint or similar
impression of any part of a person’s body other than a part or
the whole of a hand. To make it very clear what we are discussing,
those are the definitions of fingerprints and non-intimate samples
under
PACE.
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 amendments—I 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 Government’s, and everybody else’s,
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
have the discretion to which the hon. and learned
Gentleman alluded. Pending the European Court of Human Rights judgment
that we are appealing, that is the only significant means of removing
samples from the database, and that is perfectly in order.
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
balance—although 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 say—when I could get a word in
edgeways—that 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
database—including, 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 guilty—is 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 view—other than
by the hon. Member for Monmouth, who feels that someone who looks
shifty ought to be on the database—that 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.
But the trouble is that this is our only opportunity to stop that
accretion—as the hon. and learned Member for Beaconsfield called
it—of further DNA samples on to the database of people who have
not been charged with, and have certainly not been found guilty of, any
crime. This is our only opportunity to argue the case and suggest that
this fundamental issue needs to be
addressed.
It could be
argued that there is likely to be—we cannot say that there will
definitely or even probably will be—a 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.
4.45
pm
The hon. and
learned Member for Beaconsfield and I have raised quite proper concerns
in today’s 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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