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9 Dec 2009 : Column 115WH—continued
That was in April. On 13 November-months later-my constituent told me:
"I never heard a thing",
and we have heard exactly the same thing in other examples that we have been given. As we have heard, people write to the chief constable and their local police force, but they do not even receive an acknowledgement or a letter saying no-they just do not hear anything.
David Taylor: Just for clarification, I should say that in the case that I mentioned of the indie band The Thirst, the chief constable of Staffordshire, under significant pressure, promised the same weekend to remove the DNA from the database. What concerns many people, however, is the inconsistency of the approach.
Paul Holmes: I thank the hon. Gentleman for that clarification.
Last April, my constituent said, "Right, you've dropped the case. Can you take my DNA off the database?" He had had no answer by November. A few weeks previously, in early autumn, he says that he had again requested removal and that the PC had again said that she had forwarded his request to the professional standards department. Again, however, there was no further response. My constituent added-this was in evidence that he submitted to Liberty-
"It was after this that I got Paul Holmes to write on my behalf"
to the chief constable. However, we are still not much further forward a few weeks later, in December. My constituent went on to say that the professional standards department
"confirmed that my complaint had been 'recorded'-but have never responded regarding the request for the return of my DNA nor to give details of how to make a request under the 'Exceptional Circumstances'"
The exceptional circumstances procedure recommended in ACPO guidelines includes all sorts of grounds on which a chief constable might agree to remove a DNA sample from the database. Those grounds include the fact that a false allegation was made; the subject was unlawfully or wrongly arrested or unlawfully cautioned; the caution was inappropriate; or the subject was unlawfully processed. However, most of those grounds do not touch on the possibility that the subject was actually innocent-that is not one of the reasons given for why the DNA might be removed from the database. As we have heard, however, there are lots of examples of chief constables making different interpretations. When the Secretary of State debated the issue in the Queen's Speech debate, however, he said that the practice of chief constables would not really change until the Crime and Security Bill had gone through the parliamentary process. Given that we have 70 parliamentary days before a general election must be held, that process is unlikely to reach a full conclusion.
There are therefore lots of problems with the database, including the way in which it has been accumulated, the huge percentage of innocent people on it, the difficulty that innocent people have in getting their DNA removed from it, the lack of clarification, guidance and procedures, the Government's stonewalling and the lack of a scientific base to underpin the Government's policies.
Why does all this matter? One argument that we hear is, "If you've nothing to fear, you've nothing to hide." One point that that I have raised several times, but which always gets rebutted, is that if we follow through the logic of the Government's wish to have the largest DNA database in the world-the database contains 1 million innocent people, as well as up to 5 million people with convictions of various kinds-the safest thing would be to record the DNA of everybody in the country. There are problems with such a scheme, such as its sheer size and cost, but that would be the logic of the Government's wish to have the biggest DNA database possible because the DNA might be useful in dealing with just over 0.5 per cent. of crimes in a given year.
Ms Abbott: The hon. Gentleman mentions an argument that we often hear-"If you're innocent, you've nothing to fear." One thing that people have to fear, however, is the number of mistakes on the DNA database. In 2007, the Home Office released figures showing that there were more than 500,000 faults or wrongly recorded names on the database. Furthermore, as I said earlier, as the database gets bigger, the issue of errors will become more important.
Paul Holmes: I thank the hon. Lady for that intervention. She is quite correct. One problem with creating a database of the current size, let alone a database for the whole population, is its cost and manageability. The bigger the database gets, however, the more chance there is that mistakes will occur. There is also more chance that that data will leak out. In that respect, we all know the record of large organisations-the Government's is well known, but other large organisations have similar issues. Recently, people in mobile phone companies were selling data from one company to another. In any large organisation with large amounts of sensitive data, there will be more chance of that data getting lost, being sold or being illegally passed on.
In November, in a report entitled "Nothing to Hide, Nothing to Fear?", the Human Genetics Commission said:
"DNA captures an individual's very 'genetic soul'...the most intimate medical data an individual may possess."
It warned of the dangers of such data being collected in large amounts. The Nuffield Council on Bioethics has expressed strong concern that the database shifts the relationship between the citizen and the state to the extent that the state will treat all individuals as potential offenders, rather than as citizens of good will.
On all those grounds, which we have addressed several times this year, but which we will obviously continue to address, I urge the Minister to think again about the rehashed proposals in the Queen's Speech. I urge him to go back to a proper scientific evaluation of the issue, because former chief constable Tony Lake says that we do not have one, as does the Jill Dando Institute, even though the institute was prayed in aid to support Government policy earlier this year. I urge the Minister to start again.
3.19 pm
James Brokenshire (Hornchurch) (Con):
I congratulate the hon. Member for Hackney, North and Stoke Newington (Ms Abbott) on securing the debate. I am only sorry that more hon. Members have not participated, because
it is an extremely important debate in setting the framework for the retention of DNA, which is highly sensitive material.
We are talking about some fairly fundamental issues in our democracy: getting the right and proportionate balance; considerations such as people being innocent until proven guilty; the fact that, as the hon. Lady mentioned, the Government have yet to respond on the matter of the blanket, indiscriminate approach that has been adopted to date; and the fact that 12 months on from the extremely important judgment in S and Marper, we are no further forward. In that case, the court gave a very clear signal that the Government's current approach is unlawful, and it remains unlawful to this day.
The hon. Member for Hackney, North and Stoke Newington made some important points about the nature and impact of the Government's approach, and the fact that disproportionately more black boys are on the DNA database, in comparison with other groups represented in the country's population. That raises serious issues, including the disproportionate representation of young people generally on the database, and how the database has grown. We have had a sort of mission creep. The hon. Lady described the lack of guidelines for chief constables on removal of DNA from the database, and that point was well made.
Jeremy Corbyn (Islington, North) (Lab): I am sorry that I missed the first part of the speech of my hon. Friend the Member for Hackney, North and Stoke Newington (Ms. Abbot).
The hon. Gentleman must be aware, as I am, that the retention of young people's DNA simply reflects the stop-and-search policies that mean DNA can often be taken, if the person is taken into the police station. Also, a lot of young people are, frankly, almost unaware that they have had their DNA taken, or that it is held in a record. Because of that, they have no idea how to get rid of it, either. It returns to haunt them, often many years later, when they were completely unaware that they had any record against them in the first place.
James Brokenshire: The hon. Gentleman makes an important point about the consequences of having simply let the database grow without proper debate, a proper statutory framework, or proper consideration of whether we wanted, in the first place, to get to the position we are now in. It has simply happened, rather than our making any conscious decision that we wanted to end up where we are. I shall come on to some comments made in the S and Marper judgment about what the policy framework and intentions were.
Ms Abbott: On the number of young people, both black and white, whose DNA is on the database, is the hon. Gentleman surprised to know that young people in Hackney have, as young people do, turned the whole thing on its head, and that they now feel that having their DNA taken is a mark of being on the way to becoming a fully-fledged criminal? The problem is that that is just one of a series of signals that society is giving young people in some areas that they are almost doomed to be criminals. That cannot be right. We should be reinforcing the positive, rather than subjecting them to an arbitrary regime that gives them the feeling that they are stigmatised.
James Brokenshire: The hon. Lady makes a point about unintended consequences, and I do not intend to stray into the wider debate about youth offending and the prevention of crime. However, society must consider some of the messages that are being sent out and how, practically, we can break into generational issues and try to stop what we have described as the conveyor belt to crime.
As to how we have got where we are, the hon. Lady described that quite clearly in recounting her own experience. I was interested to read on her website about the clinic that she set up with Liberty to provide advice to young people whose DNA had been retained by the police. It threw up the issue of inconsistency and the lack of guidance and certainty for those young people-and, as we have heard this afternoon, for the police-about the appropriate course of action. I therefore hope that we shall continue the debate in the weeks ahead, when we reach the detailed consideration of the Crime and Security Bill announced in the Queen's Speech.
We will need a lot of detailed debate, and I hope that the hon. Lady will be permitted to sit as a member of the Public Bill Committee, to contribute her experience to the scrutiny. The issues that have been raised today are the very ones that we shall need to drill down into, in considering the detail of the Government's proposals. There has been a shift because of the S and Marper judgment, but I would argue that it has not gone far enough. In attempting to understand the Government's methodology and approach, we will have an interesting debate. In some ways we are starting that this afternoon, but it will continue. I hope that the continuing debate will be well supported and that hon. Members will participate so that we can get the important scrutiny and valid debate that we need in this place; so that we can get a fair, reasonable and proportionate balance between the interests of the state in preventing crime, and of the individual in terms of privacy and human rights; and so that what Parliament does to reflect the European Court judgment is appropriate.
It was interesting to hear the continuation of the debate that the hon. Member for Chesterfield (Paul Holmes) and I have been having with the Minister. This is possibly the fourth occasion when we have had the pleasure of debating the issues. It is important, because the issues are fundamental to the balance of the society we want to create. The Government and state approach, and the relationship of that to the individual, are starkly brought into focus by the issue of the retention of DNA. Nothing is much more personal than the retention of people's genetic make-up by the state.
I start in a position of consensus with the Government because I welcome the fact that they have at least acknowledged that the DNA itself-the base material-will be kept for only a limited period. I think that they have said it will be for six months. Therefore, what will be retained on the DNA database will be a profile comprising, effectively, lots of numbers that relate to the DNA that has been taken. At least the Government have accepted that the human material shall be retained only for a limited period. Then we get into the detail of retention of the profile, what the matching of a profile might mean, and whether the retention of that profile itself for the time suggested is appropriate.
The retention of cellular samples is particularly intrusive given the wealth of genetic and health information that they contain. The use of the technology must involve
the right balance between the promotion of the wider public interest and public safety and the protection of important private life interests. That is obviously central to this afternoon's debate. As Professor Jonathan Montgomery, the chair of the Human Genetics Commission, notes:
"DNA evidence plays a significant role in bringing criminals before the courts and securing convictions. But it is not clear how far holding DNA profiles on a central database improves police investigations. We have to strike a proper balance between identifying offenders and protecting privacy, including that of innocent people-we should not compromise that privacy without good reason."
That is a good description of the focus that is needed in the debate-on those principles that Professor Montgomery identified.
The UK, as the hon. Member for Hackney, North and Stoke Newington mentioned, has proportionately the largest DNA database in the world. We have approximately 4.3 million profiles. That equates to 10 per cent. of the population of England and Wales, if one breaks it down by the profiles that have been added by police forces in England and Wales. One might have thought that retaining all that data would result in a significant increase in the detection of crime-that, by virtue of the growth in DNA records and the amount of material held, there would be a growth in the number of cases solved, assuming that that is the driving factor. However, the number of DNA detections for 2008-09 is 17,607.
The Minister has argued in the past that the reduction in the number of DNA detections is simply a consequence of a reduction in crime. First, I do not accept that argument. Secondly, even if one did accept it, one would still need to explain why the proportion of crimes detected by DNA has fallen: the figure two years ago was 0.76 per cent., and in the past year it was 0.67 per cent. Similarly, the proportion of crimes detected in which a DNA match was available was 36.5 per cent. two years ago, and 32.4 per cent. last year. Therefore, I do not accept the argument that a reduction in DNA detections is the result of a reduction in crime. So, something is happening here.
I would be interested to know whether the Minister has looked at the situation in Scotland, which operates a different and much narrower system, but where DNA detections are higher than in England and Wales. Questions must be asked about the use of a blanket approach to detect and solve crime and provide safety, because the detection rate-I stand to be challenged on this-seems lower in England and Wales than it is in Scotland. That raises some interesting questions. I do not make that point in a directly partisan way, but if we are trying to use a more evidence-based approach, we need to understand why that system is more effective, as our sole purpose is to detect and solve crime.
I was interested to read the Human Genetics Commission's recent report, which noted:
"There is insufficient evidence at present to be able to say what use holding DNA profiled from different people is-this evidence is urgently needed to support decisions about the scope of the database".
I looked at the approach the Government started with, prior to the S and Marper judgment, which obviously still pervades today. It was interesting to note in the
judgment that the Government's policy was described as not depending on innocence or guilt, which is clearly how we understand it.
In a further submission in the course of that case, the Government argued that the fingerprints and samples had been lawfully taken and that their retention is not related to the fact that the people involved were originally suspected of committing a crime,
"the sole reason for their retention being to increase the size and, therefore, the use of the database in identification of offenders in the future."
If there was a policy of simply growing the database for the sake of it, that is worrying, as we are starting to hear reports-I do not know how grounded they are-of police arresting people, allegedly for the purposes of collecting DNA.
I welcome the fact that the Government, following the S and Marper judgment, appear to have recognised that the Big Brother approach is unacceptable. As a result, we now have the proposals that were originally put forward in the consultation documents published in the summer, as has been mentioned. That was reflected in the Home Secretary's statement in November, as well as in the Crime and Security Bill, which will have further consideration by the House.
It is odd that we got to that position, because, as the hon. Member for Chesterfield rightly pointed out, we had, during the passage of the Policing and Crime Act 2009 in the previous Session, some heated debates about the fact that the Government originally simply wanted to give a blank cheque and to deal with the matter through statutory instrument and order-making power. That was utterly unacceptable, and I am pleased that they brought forward primary legislation to address the valid and serious concerns of many hon. Members' about the use of such powers on a matter with such substantive and significant implications for private life.
In his statement on 11 November, the Home Secretary said that, since the publication of the consultation document over the summer, the Home Office had
"sought to further the evidence base through additional research."-[Official Report, 11 November 2009; Vol. 499, c. 26WS.]
We have heard that the research published alongside the consultation document in the summer was not peer-reviewed, was premature and did not take the correct approach, and I think that the Home Office has accepted that that research did not provide the evidence base it sought to procure.
It would be interesting to hear what further analysis the Government have now undertaken, because I am aware of the document, "DNA retention policy: Re-arrest hazard rate analysis", which was published alongside the Home Secretary's statement. I would be interested to hear from the Minister what the preparation of that document involved. Is it an internal Home Office document, was there some external work conducted and, if so, who conducted it and was it peer-reviewed? We must know that so that we are not in the situation we were in before in relation to the previous published analysis. What robustness has been attached to the document before us?
The approach the Government have sought to take to justify the six-year period, I understand, is based on that analysis document. The approach they have taken is to try to match arrest rate to arrest rate and provide a graph for how that applies to the population in general.
Some interesting points come out of the document published by the Home Office to support its proposals, because it has attached various caveats to the analysis that state that in measuring the graph, to try to support the justification, the lines are measured with some degree of uncertainty. The banding, therefore, has a high potential for error, which is reflected and represented in the document itself. The document states:
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