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9 Dec 2009 : Column 110WH—continued
"Chief Constables retain the discretion to decide whether or not fingerprints and samples will be retained in individual cases although it would be the norm to do so. The matter of discretion is an operational one for the police force involved and not one into which the Home Secretary has any input."
Ministers are hiding behind chief constables, even though they have not issued guidelines to chief constables, there has never been a debate and there is no procedure or process. A 14-year-old girl with no previous convictions was kept in a cell when she should not have been, and the police do not want to let go of her DNA.
Dr. Murrison: I am fascinated to know what the discretion is based on. Do the police feel that the person might have been involved in a crime before and that they need to check up on them, or are they making a value judgment about the likelihood that the person will commit a crime in future? It seems odd that there is no guidance at all. Surely it is a matter for the Home Secretary. If it is his intention to have a database against which suspected future felons can be checked, that is surely a matter for the Home Office and not for individual police forces and chief constables acting on discretion, which does not appear to be based on anything.
Ms Abbott: It is based on nothing, and it leads to the sort of inequality between police forces that other hon. Members have referred to.
David Taylor: Is there not a risk, or even a suspicion, that innocent people whose DNA is destroyed or withdrawn are likely to be the offspring of local worthies, but that the DNA of someone from the wrong side of the tracks will stay on the database for a long time?
Ms Abbott: Precisely, unless there are guidelines, transparency and accountability. Chief constables are doing it at their whim and pleasure.
My right hon. Friend the Member for Enfield, North completed her letter to me by saying that the Home Secretary has no input into such decisions and that:
"Your constituents should therefore contact the Commissioner of the Metropolitan Police Service and ask if he considers there are sufficiently exceptional circumstances in this case to merit the removal of the DNA profile from the database."
What could be more exceptional than a 14-year-old girl with no previous convictions who was arrested as part of an incident where no charges were pressed? At that point, two years ago, Ministers seemed to be saying that the onus was on innocent people to show why their DNA should be withdrawn and that that would be the exception rather than the rule, however innocent they were.
Keith Vaz: As a result of what my hon. Friend has done on the issue-she probably does not know this, as it has not been announced-the Select Committee on Home Affairs decided on Tuesday to hold an inquiry into the DNA database. It would be extremely helpful if she could arrange for some of the people whom she has mentioned with such eloquence to give evidence to the inquiry.
Ms Abbott: I would be glad to do so. I am pleased to hear that the Select Committee is going to take that action.
In July, the mother of the two girls got a letter from Detective Inspector Tracy Sherman of the Met. It simply rehearsed the legal position under the Police and Criminal Evidence Act 1984, saying that the police had the power to do what they did:
"In this case the arrest was lawful and therefore the power to take and retain DNA exists."
In other words, "We can do it legally, we are doing it and there's nothing you can do about it." That was the police position. The onus is on an innocent 14-year-old girl to show that the circumstances merit removal.
Since then, the hon. Member for North Southwark and Bermondsey (Simon Hughes), who was also involved with the family, has written to the Metropolitan police. Earlier this year, I met Gary Pugh, the director of forensic services at the Met, to raise the case again. He wrote to me to say that, in the end, the two girls' DNA was removed from the database in 2008. It took two years and two MPs. The police tried to hide behind Ministers, and Ministers tried to hide behind chief constables. It was a thoroughly unedifying incident, and it is one of the things that drew me into the issue.
Most importantly, in December 2008, the European Court of Human Rights ruled against the indefinite retention on the database of the DNA of people who have not been convicted of a crime. I will quote some of what the Court said, because it is important. The Court said that it was
"struck by the blanket and indiscriminate nature of the power of retention in England and Wales",
that the retention of the DNA in question
"fails to strike a fair balance between the competing public and private interests"
and that the UK Government had
"overstepped any acceptable margin of appreciation in this regard".
"the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society."
Even if some Home Office Ministers are anti-European, one might expect that such a ruling would bring a blush to their cheeks. Not at all. They waited five months before consulting on their proposals. When they went out to consultation, they got 503 responses from lawyers, police organisations, children's rights groups and so on. It is interesting that their proposals after consultation are almost exactly the same as the proposals that they put out to consultation in the first place. In other words, Members will be shocked to hear, they took no notice of the consultation. That is rare and unusual where Governments are concerned, so I do not want to shock younger Members unduly.
The Home Secretary's written statement in November setting out the finalised Home Office plans in response to the ECHR ruling took into account none of the opinions in the consultation. I will not go through the Government's plans, but I will make one point. The original consultation document contained plans to retain the DNA of under-18s who were arrested but not convicted. We have not had any more information, so I would like to hear what will be done about that group of people.
In conclusion, I draw Parliament's attention to the views of Sir Alec Jeffreys, the father of DNA. One would expect the father of the science to be in favour of a vast database, of collecting as much DNA from as many people as possible and of the fact that we have the biggest DNA database relative to population in the world. However, he says:
"My view is very clear that if you have been convicted of a crime then you owe it to society to be retained on that database for catching in the future should you reoffend. But the retention of entirely innocent people is a whole different issue. There is a sort of presumption here that if they haven't committed any crime now, then they will in the future."
That is this Government's midway point: not quite innocent and not quite guilty.
Ms Abbott: Which is not a verdict in the British system. Sir Alec went on to say:
"I have never seen any argument in favour of England, Wales and Northern Ireland being the only countries in the world to retain the DNA of entirely innocent people. There are serious issues of discrimination and stigmatisation of branches of society that are over-represented on the database."
That is the man who invented the science. He also said that there was a possibility of miscarriages of justice:
"Let's suggest you have two samples that get swapped, and I stress that the likelihood is very low, but given the huge amount of case work one has to be mindful of the fact that there is not a zero probability, then you may get an error. You may have the wrong profile and come up with the wrong suspect."
If the ECHR judgment did not bring a blush to Ministers' cheeks, Sir Alec Jeffrey's reply to the Government's response ought to. He said:
"It seems to be about as minimal a response to the European court of human rights judgment as one could conceive. There is a presumption not of innocence but of future guilt here...which I find very disturbing indeed.
I do not see this as balanced and proportionate. It still places England, Wales and Northern Ireland as the only jurisdictions in the world, to my knowledge, to retain such large amounts of innocent DNA information."
He dismissed the prediction that if the proposals were followed, 4,500 fewer crimes would be detected, which we will no doubt hear from the Minister. He said:
"There is an unspoken assumption in here that these thousands of crimes that will not be detected by not having the DNA will remain undetected and that simply isn't the case. A significant number of these will be detectable through conventional police work".
We have the biggest DNA database in relation to population in the world. It is an extraordinary innovation in science, which has consequences for personal intrusion and civil liberties. It is condemned by the man who invented the science, even though one might imagine that he would support the hoovering up of DNA willy-nilly.
A European Court judgment has struck down the basis of the Government's collection of DNA. I put it to the Government that a more serious debate on this issue is long overdue.
I repeat that no one is against collecting the DNA of guilty people; no one is even saying that there are not limited circumstances in which we should keep the DNA of people who have not been convicted, but who have been accused of certain crimes. However, there is no scientific research basis for keeping the DNA of innocent people in the way that the Government have done or the way that they propose to do. That has detrimental effects on community relations.
Mr. Gregory Campbell (East Londonderry) (DUP): I, too, commend the hon. Lady on securing this debate. I have listened carefully to her powerful argument. For some time, she has alluded to Ministers hiding behind the discretionary power of chief constables and to the lack of guidance issued by Ministers. Is she aware of the representative body of chief police officers having requested such guidance from Ministers? I am not. Does she know whether such guidance would be welcomed?
Ms Abbott: I am not aware that chief constables have requested guidance. However, people not requesting guidance has not stopped the Government from issuing it in the past, whether to official organisations or members of the public. The Government are free with their guidance when it suits them. Chief constables not asking for guidance is not a reason for the Government not to provide it.
In closing, at the least there should be proper guidelines. The Government should rethink their response to the European Court of Human Rights ruling because everybody, including the man who invented the science, thinks that it is wholly inadequate. The Government need a much more balanced approach to the keeping of innocent people's DNA. They are building up a huge database with no evidentiary basis to show that doing so will help to solve crimes, yet they are doing it in the name of being tough on crime and to outdo other parties. They are not considering the implications for civil liberties and community relations or issues of fairness in public policy. I urge the Government to reconsider before it is too late and to allow Parliament a full debate on the issue.
3.4 pm
Paul Holmes (Chesterfield) (LD): The Minister, the hon. Member for Hornchurch (James Brokenshire) and I have discussed the DNA database at least five times over the past year, beginning with our consideration of the Policing and Crime Bill at the beginning of the year.
I will summarise the key points, which the hon. Member for Hackney, North and Stoke Newington (Ms Abbott) ably encapsulated. We have the largest DNA database in the world. Approximately a fifth of the people on it-about 1 million people-are innocent, which means that they were never convicted or charged. Many people think that to keep such a large database with so many innocent people on it is simply wrong. The database includes disproportionate numbers of groups such as ethnic minorities, and we have heard examples to illustrate that. It also contains a disproportionate number of children and young people, and people with mental health conditions.
The database criminalises many young people for behaviour that would not have been considered criminal in the past. We have raised cases such as the case of the two children building a den up a cherry tree in debates this year in various Committees. As has been reported in the national press, some police forces, such as Derbyshire, are experimenting with restorative justice, whereby police are urged not to take children through a criminal process-including taking DNA-and give them a criminal record in such circumstances, but to get them to apologise to the person involved, restore the damage if possible or make it up in some other way. Although a few forces are experimenting with that provision, it does not alter the fact that over 12 years, there has been an increasing criminalisation of young people for things that would not have been crimes when we were children.
As we heard from the hon. Member for Hackney, North and Stoke Newington, the huge DNA database has been accumulated not following a major parliamentary or national debate, but incrementally, without any formal discussion, recognition or acceptance. Over the years, an increasing number of people have expressed concern about that. Most recently, the European Court of Human Rights ruled that it contravenes human rights in various ways. The Government's first response to that ruling came at the Committee stage of the Policing and Crime Bill in February. At the last minute, after six weeks of intensive and productive debate, they took a blank-cheque approach, saying that if we gave them permission to produce regulations, they would do something about the ruling, but that they would not tell us what the solution was until after the Bill had completed its passage through Parliament. Of course, we all said that that was unacceptable. A few weeks ago, on the last day of the last Session, the Government withdrew that proposal and instead a new Bill was proposed in the Queen's Speech.
As has been said, nobody doubts that DNA evidence is a major scientific step forward. It provides valuable assistance in the convictions of some criminals and in proving some people innocent. As the Secretary of State pointed out in the Queen's Speech debate in the House, people who have been in prison for years have been cleared as a result of DNA evidence. Despite its value, we should not overestimate the role of DNA. In a parliamentary answer on 21 October, the Minister stated that in 2008-09, a DNA match had been available in only 0.68 per cent. of cases. That is less than 1 per cent.-it is closer to 0.5 per cent. than to 1 per cent. He also stated:
"It is also important to note that the detections are achieved through integrated criminal investigation, not through DNA alone."-[Official Report, 21 October 2009; Vol. 497, c. 1538W.]
That means that a percentage of cases even smaller than 0.68 per cent. were solved by DNA alone, because other criminal investigations were under way. An even smaller percentage of cases are solved as a result of people being on the database because they were innocent, rather than being convicted of a crime. We do not know quite how much smaller than 0.68 per cent. that small percentage is, because a lot of the Government's policy seems to be based on flimsy research and assertion, rather than on detailed evidence. One example of the problem comes from the Jill Dando Institute, on whose work the Government based their initial policy of retaining innocent people's DNA for six or 12 years, depending
on the category of crime for which they were originally questioned, but for which they were never charged or convicted. The institute later said that its research should not have been used, because it was unfinished. Gloria Laycock, the director of the institute, said that Government policy
"should be based on proper analysis and evidence and we did our best to try and produce some in a terribly tiny timeframe, using data we were not given direct access to...That was probably a mistake with hindsight, we should have just said 'you might as well just stick your finger in the air and think of a number.'"
If that is the research on which Government policy is based, we really have to worry.
As regards the people on the database, we also have the evidence of former chief constable Tony Lake, who used to head the national DNA database board. He said that one of the key problems with policy on this issue is the lack of reliable data on the number and types of crimes that have been directly solved by retaining the DNA profiles of innocent people. He said:
"It is not a straightforward issue because a lot of people who commit the most serious crime and become serial offenders don't start their criminal careers with serious offences...This is an immensely complex issue which is why I do think there needs to be a very thorough study on offending patterns."
As we heard in the opening speech, however, the Government seem not to have accumulated this huge database on the basis of detailed research and evidence, and they have rushed to make off-the-cuff responses to the European Court ruling, blank-cheque proposals in the Policing and Crime Bill and now their new proposals, which are essentially a rehash of old ones. There is still no serious systematic research to underpin their policy, which, to many people, is extremely illiberal and a contravention of human rights, as well as criminalising people who should not be criminalised and leading to all sorts of other issues. There is therefore a lack of research on exactly how many cases are solved by DNA alone, and there is a lack of evidence to underpin the Government's proposals on retaining the DNA of innocent people. That must cast very serious doubt on the Government's approach to this issue.
We have heard of individual cases from the constituency of the hon. Member for Hackney, North and Stoke Newington in London, but we all have similar examples from our own constituencies. One constituent of mine was assaulted by a group of youths in Derby. There were lots of witnesses, but he was also arrested. The other youths made counter-charges, even though five of them attacked him. The case was going to court, but in April, my constituent finally heard that it had been dropped. He immediately contacted the police and then the chief constable. He says:
"I requested return of my DNA within 24 hours of being told by the police (April this year) that the case had been dropped."
"told me that it was retained. I then pointed out the 'Exceptional Circumstances' ruling"-
it is not really a ruling, but a procedure recommended by the Association of Chief Police Officers-
"and asked how to make an appeal under this procedure. She replied saying that she had forwarded my request to the Professional Standards Department, from whom I would hear shortly."
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