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19 May 2009 : Column 1363

New clause 3— Destruction of samples etc (Northern Ireland)

‘(1) That Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/3141 (N.I 12)) is amended as follows—

(2) After Article 64A insert—

“Destruction of samples etc

“(1) After a person is not charged or acquitted of the offence for which a sample has been taken that sample shall be destroyed within one month of the fingerprints or samples being taken or the person being acquitted, unless the offence was of a violent or sexual nature.

(2) If the offence was of a violent or sexual nature that sample should be held for a period of three years, and then be destroyed.

(3) This section applies to the following material—

(a) photographs falling within a description specified in the regulations,

(b) fingerprints taken from a person in connection with the investigation of an offence,

(c) impressions of footwear so taken from a person,

(d) DNA and other samples so taken from a person,

(e) information derived from DNA samples so taken from a person.

(4) For the purposes of this section—

(a) “photograph” includes a moving image, and

(b) the reference to a DNA sample is a reference to any material that has come from a human body and consists of or includes human cells.”’.

New clause 31— Retention of voluntary samples etc.

‘(1) That the Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.

(2) After section 64(1A)(b) insert—

“(c) any other provision in this Part does not prohibit or restrict their retention or require their destruction.”.

(3) For section 64(3AC) substitute—

“3AC Retention of voluntary samples etc.

Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention—

(a) that sample need not be destroyed under subsection (3) above;

(b) subsection (3AB) above shall not restrict the use that may be made of the sample or of any information derived from it; and

(c) that consent shall be treated as comprising a consent for the purposes of section 63A(1C) above;

provided that—

(1) No sample or information derived from any sample may be retained on any child under the age of 10 years; and

(2) Consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such sample and any information derived therefrom shall be destroyed as soon as possible following receipt of such written application.”’.

New clause 32— Retention of samples following arrest

‘(1) The Police and Criminal Evidence Act 1984 (c.60) is amended as follows.

(2) After section 64A insert—

“64B Retention of samples

(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has been given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.

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(2) Subsection (1) above shall not apply—

(a) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person; or

(b) where the person is cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence in connection with the decision not to institute criminal proceedings or following the withdrawal or cessation of criminal proceedings; or

(c) where sections 64C or 64D apply.

(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of the (1) the lapse of any applicable appeal period and (2) a decision is made not to appeal such proceedings.

64C Retention of samples etc (violent and sexual offences)

(1) This section applies where any sample has been taken from a person under this Part where criminal proceedings were instituted against such person in respect of a sexual offence or violent offence and such proceedings concluded otherwise than with a conviction or with the person being cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence.

(2) Subject to subsections (6) and (7) below, the sample and any information derived therefrom shall be destroyed no later than:

(a) 3 years following the conclusion of the proceedings (“the initial retention date”); or

(b) such later date as may be ordered under subsection (3).

(3) On application made by a chief officer of police within the period of 3 months before the initial retention date, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant sample and any information derived therefrom.

(4) An order under subsection (3) shall not specify a date more than 2 years later than the initial retention date.

(5) Any decisions of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(6) Subsection (2) does not apply where—

(a) an application under subsection (3) above has been made but has not been determined.

(b) the period within which an appeal may be brought under subsection (5) above against a decision to refuse an application has not elapsed; or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(7) Where—

(a) the period within which an appeal referred to in subsection (5) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (2),

the sample and any information derived therefrom shall be destroyed as soon as possible thereafter.

(8) For the purposes of this Part a “sexual offence” or “violent offence” shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.

64D Retention of Samples - Residual Power

(1) On application by a chief officer of police, the Crown Court may make an order requiring the retention of a sample taken from a person and any information derived therefrom in circumstances where such a sample and any information derived therefrom would otherwise be required to be destroyed if it has reasonable grounds to believe that:

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(a) there is a serious risk of harm to the public or a section of the public; and

(b) such retention would prevent, inhibit, restrict or disrupt involvement by the person in the commission of a sexual offence or violent offence.

(2) An order under this section is not to be in force for more than 5 years beginning with the date of the commencement of the order.

(3) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(4) Where an application has been made for an order under this section, the relevant sample and any information derived therefrom shall not be destroyed until such application and any appeal thereof has been determined.

(3) At end of section 113(1) insert—

“provided always that the protections in Part 5 relating to the retention of samples and any information derived therefrom shall also be applied to persons investigated or under arrest under such Acts.”.’.

Amendment 28, page 116, line 16, leave out Clause 95.

Government amendment 112.

Amendment 29, page 117, line 32, leave out Clause 96.

Amendment 30, page 118, line 3, leave out Clause 97.

Government amendment 113.

Chris Huhne: These new clauses and amendments address the issue of the retention of fingerprints and other DNA samples stored on the police national database, and seek to fulfil two purposes. Amendments 28 to 30 would seek to remove clauses 95 to 97. New clauses 1 to 3 then replace the current rules on the retention of DNA samples with our preferred alternative. We believe that this is both legal in the eyes of the European Court of Human Rights and the Human Rights Act 1998, and puts liberty, respect for a private life, and the presumption of innocence at the heart of the rules.

The UK has the largest DNA database in the world; it is far larger than its American equivalent. It contains records from more than 4 million British citizens; 1 million of those people have no record on the police national computer, and 1 million were added as children. Almost one in two of all black men are on the database. This has been not so much a policy—that would have entailed some systematic attempt to collect DNA—but a random accretion of profiles from anybody who happens to run into the police.

On 4 December last year, the European Court of Human Rights ruled that the retention of the DNA samples of two men—S and Marper—was illegal, and that it violated their right to a private life. The ruling stated that the judges were

They ruled that

That is a damning indictment of the Government’s policy on DNA retention, and serves to highlight the Government’s dangerous and illegal obsession with massive, Big Brother-style databases, whether for DNA, e-mails and phone calls, or biometric data collected for ID cards. A report by the Joseph Rowntree Reform Trust
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concluded that out of 46 databases examined, one quarter were almost certainly illegal, as the existing DNA database has been found to be, and fewer than 15 per cent. of those assessed were effective, proportionate or necessary.

The effectiveness of this random accretion in the DNA database is itself highly questionable. Figures have shown that despite the huge increase in the number of profiles on the database—from 2.1 million in 2002 to 5.6 million at the last count—the number of detected crimes in which a DNA match was available has fallen from 21,098 to 17,614 last year. Ministers have failed to produce any respectable peer-reviewed research that supports their case for this random increase in the collection of DNA samples and profiles—indeed, size is, in itself, problematic, as it makes the data more unwieldy in finding matches. Ministers like to say that DNA is essential in detecting crime, and of course it is, but the most significant application of DNA testing is when DNA is found at the scene of a crime and can then be matched with a suspect. That process will continue, and it should do, but what should not continue is the topsy growth for no reason in the number of samples and profiles added to the database.

Given the weight of evidence in favour of reform of the DNA database, the Government have signally failed to justify their current proposals. I am forced to conclude that Ministers are putting forward what they believe to be the absolute minimum that they can get away with before the European Court, while hoping that campaigners will not mount any further legal challenges. I think that Ministers will be proved wrong; to hold records for six years on people charged with or convicted of no crime, and to hold them for 12 years on those arrested for serious offences, makes a mockery of the presumption of innocence that has been fundamental to our law for centuries. There is no evidence that such a lengthy retention period is proportionate, necessary or effective.

Despite the extremely sensitive nature of these issues, the Government are essentially asking us to defer all serious decisions to statutory instruments that will be introduced at a later stage—there would then be no requirement even for a debate on the Floor of the House. The House backs far too many, “I’m a Minister, trust me” clauses in any case, but it should certainly not accept their use in this important matter—to do so would frankly be an outrage. This is an issue of national significance and national debate that potentially affects the human rights of millions of people, and it should be addressed only through primary legislation. Ministers will say that time was pressing, consultation periods are long and that what they propose is the only practical way of dealing with the issue, but that is nonsense. We have a precedent for a tailor-made, one-purpose Bill in respect of the Criminal Evidence (Witness Anonymity) Act 2008, which was also drafted in response to a court judgment and commanded support from all parts of the House.

The Government should not be allowed to get away with passing legislation that has not been subject to proper scrutiny in this House—we heard in the programme motion debate how little scrutiny the Bill received in Committee. Their manoeuvring with consultations and the use of secondary legislation is simply unacceptable, given the seriousness of the issue. We, on the Liberal Democrat Benches, along with Members from all parts
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of the House, have signed amendments to remove the DNA provisions from the Bill and we will certainly push them to a vote.

Let me turn to our proposed alternative. We propose a similar system to that which has worked so well in Scotland. When we were in coalition in the Executive in Scotland, my Liberal Democrat colleagues in the Scottish Parliament led the charge to introduce less Orwellian rules for Scotland than those currently in place in England, Wales and Northern Ireland. The Scottish provision allows that any samples and profiles taken, voluntarily or otherwise, from somebody who is subsequently released without charge or acquitted of an offence should be destroyed within one month. However, if an offence was of a violent or sexual nature, a sample can be held for up to three years—we propose that the same period apply.

There is a legitimate debate to be had over the length of time that retention is acceptable in the cases of those arrested for serious violent or sexual offences. The Government propose to set this limit at 12 years, whereas the Scottish system sets it at three years, as in our new clauses, but allows for a possible two-year extension. The Conservatives’ proposals are similar, but we part company with the official Opposition where they allow for a blanket application to retain samples and profiles for up to five years after an arrest for any offence because we believe that to be disproportionate and to depart from the spirit of the Scottish legislation.

To my mind, the Government’s proposals—and, I am afraid to say, those of the Conservatives—do not get the balance right between liberty and the prevention and detection of crime. If there was evidence that the retention of samples for five years or 12 years was significantly more effective in preventing or detecting future crimes, there would be a case to be weighed in the balance, but we have not heard that case from the Government. It is my belief that we should err on the side of the tried and tested principles of British justice, respected as they are and will continue to be north of the border. The presumption of innocence is a cornerstone of our judicial system and must be protected. Our provisions would adequately roll back these intrusive and illiberal powers, while recognising that DNA is an important crime fighting tool and that the taking of samples during investigations must continue. Our proposals get the balance right, and I commend them to the House.

4.45 pm

Keith Vaz (Leicester, East) (Lab): I have a great deal of sympathy with the hon. Member for Eastleigh (Chris Huhne), who based his arguments on the system in Scotland, which offers us an example of what can be done. I feel—this prompted my intervention during the discussion on the programme motion—that this serious and important area of policy deserves a proper debate in the House, rather than the time that we have allocated for this debate.

The Government are reacting to a judgment of the European Court of Human Rights. When the judgment was made, the Home Secretary made a statement to the House at the end of last year. Several months passed before the Government decided what their new policy would be. The Government have not met the fundamental
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objection to holding the DNA of innocent people on the DNA database. Either someone has committed an offence, or they have not. If they have not committed an offence, it is fundamentally wrong that their DNA should be retained on the database. If it is retained, as the Government hope, and an arbitrary figure, such as six years or 12 years, is chosen—I am not sure why those periods were chosen—the worry is that if that arbitrary figure cannot really be justified, it goes against the whole argument in changing the principle.

When this matter has been raised in the House on numerous occasions, Ministers have said that we need to retain the DNA of individuals in case they commit criminal offences in the future. Ministers have given many examples of the retention of DNA over one issue resulting in people being arrested or imprisoned for another issue several years afterwards. They come to the House with legitimate arguments and evidence to support their view, but I think that that is evidence in support of an even bigger database—the mother of all databases—on which would be retained the DNA of every individual in this country. Either we should have it for everybody, or we should retain only the DNA of those who have been convicted of an offence. The retention of DNA on the presumption that people who are in trouble over one issue will get into trouble over another because they have some kind of criminal tendency is, I think, wrong. That is the problem with the Government’s argument—it is the fundamental flaw that they have in trying to address the proper ruling of the European Court of Human Rights. The suggestions made by the hon. Member for Eastleigh deal with that point.

I hope that when the Minister comes to reply he will be able to tell us that the DNA samples of children—of all children—have now been removed from the database. The Minister for Security, Counter-Terrorism, Crime and Policing is nodding, but I give the Under-Secretary the opportunity to put that on the record from the Dispatch Box. I do not think that we have heard that from the Dispatch Box since this matter first came into the public domain.

Let me give an example of an innocent person who suddenly has his DNA retained. A hooray Henry—a helpful guy—goes into a pub to enjoy himself. He intervenes to prevent a fight. The police are called to stop everyone in the pub, or outside it, causing a disorder. The police take everyone in and the DNA of the person who intervened to stop the fight is retained.

One of my constituents did exactly that. He intervened to prevent a fight, was arrested, detained overnight in a police station and had his DNA taken. He had no criminal record whatever, yet his DNA was retained. Why retain his DNA? Why presume that he might commit another offence when he has an absolutely clean record and intervened only because he was trying to prevent two people from fighting? He went out to enjoy himself with his friends. He was not involved in the disorder—he tried to stop it.

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