What Conservative Members have to explain is the huge disparity and contradiction in their argument. Either there should be a DNA database that has people who are arrested but not convicted on it for a period of time; or, the logic is followed of the argument that the right hon. Member for Haltemprice and Howden (David Davis) has made-that people are innocent until proven guilty. If that is the case, the Conservatives' policy-God forbid-should be the same as that of the Liberal Democrats, not the halfway house they are in at the moment.
David Davis: And anything further I can take up on the train later, no doubt. The right hon. Gentleman is generous in giving way and I have two points for him. First, the policy he is mocking is, of course, the policy introduced by the Labour Government in Scotland at the time, so he should take that up with them. Secondly, I would not want him to mislead the House, inadvertently or otherwise, so will he return to his earlier point about the hazard curve, which he says is effectively flat? He says that there is no difference in respect of the likelihood of committing a crime in the future between someone who is innocent of any crime and someone who has committed a crime, yet the Home Office itself has published paper after paper after paper showing that that is not true.
Alan Johnson: I accept that there is not a great wealth of research in this area, but it will grow in all parts of the world. The latest research we have is being independently peer-reviewed as we speak. It suggests that the Jill Dando Institute research on which we based our original proposals-which showed a difference in the hazard curve, or the propensity to be re-arrested, between those arrested but not convicted for serious offences and those arrested but not convicted for less serious offences-is wrong. In fact, the Jill Dando Institute itself said-unfortunately, nine months after it produced the research-that it was flawed. The latest research shows that there is absolutely no difference between the two, which is a very important factor. As to the Scottish scheme, I shall come on to that in a few moments.
Let me return to what I was saying about human rights considerations. This House is, of course, aware of the judgment handed down by the European Court of Human Rights on 8 December 2008, which ruled that although holding DNA records of those who had no conviction could well be proportionate in some cases, it was unlawful to hold those records indefinitely. This Bill responds to that judgment.
Secondly, we must consider what the most recent evidence in this developing field of research tells us. The research we published, along with our proposals in November 2009, shows that there is a link between previous arrests and future arrests. It also shows that, as time passes, that link diminishes so that after six years-not two, three or four, but six-the probability of re-arrest is no higher than for the rest of the population.
Thirdly, we must consider concerns about privacy. Many people find the idea of someone retaining their genetic material disturbing, which is why, although not required to do so by the European Court judgment, this
Bill will require all DNA samples-the actual genetic material-to be destroyed after six months. What is retained by the database is the unique 20-digit code that forms the DNA profile.
Fourthly, we must be mindful of the public's very reasonable expectation that the police will harness this enormous scientific advance to protect them from the most horrific crimes, and ensure justice for victims and their families. Under the framework proposed by the Bill, the DNA profiles of all those convicted of crimes, and all juveniles convicted of serious offences, will be held indefinitely, and the police will be given the powers to take DNA samples from people who were convicted of serious violent and sexual offences in the past, before DNA was routinely taken, and from those who have committed such offences and are returning from overseas. The DNA profiles of those who are arrested but not convicted will be retained for six years, in line with the findings of the best available research. I will talk more about that soon.
There is one important exception to the six-year rule. As national security investigations, including counter-terrorism cases, can go on for many years, setting a six-year time frame would potentially be damaging in these circumstances. We therefore propose to allow the retention of DNA profiles beyond the six-year point in these exceptional cases, which have been known to be live for as long as 25 years.
Under the framework set out in the Bill, the records of under-18s convicted of serious crimes will be held indefinitely. However, for those convicted of minor offences, if it is a first conviction, the record will be kept for five years, and only if it is a second conviction will that record be held indefinitely. We make this distinction because it is right that the criminal justice system distinguish between adults and children. For under-18s who are arrested for, but not convicted of, both serious crimes and minor offences, their records will be retained for three years. The records of 16 to 17-year-olds-those entering the peak offending years-will, however, be retained for six years where they have been arrested for, but not convicted of, a serious offence.
Chris Grayling: The Home Secretary appears to have just said that in some cases the DNA of people found guilty of no offence will be stored for longer than that of people found guilty of an offence. Is that correct?
Currently, those seeking to have their DNA profile removed from the database may apply to the chief constable, who is, however, under no obligation to fulfil this request. The Bill will place a legal duty on the chief constable to remove the DNA records in circumstances where the arrest was unlawful, the taking of the biometric data was unlawful, the arrest was based on mistaken identity, or where there were other circumstances relating to the arrest or the alleged offender that would make it appropriate to destroy the material.
Alan Johnson: What I am saying is that the current arrangements-which are as my hon. Friend describes, whereby the power is completely with the chief constable, even in cases involving mistaken identity or unlawful action-will change, in that we will set out in law the circumstances in which DNA must not be retained. In those circumstances, it will be removed if the individual requests that-some individuals may want their DNA to be kept on the database-but not in other circumstances, perhaps, because we cannot be absolutely prescriptive here, and we will need to define this. The matter will be discussed further in Committee, no doubt. As the Bill proceeds through the House, we will also need to pay attention to the question of whether there should be another authority to go to on appeal.
Michael Connarty (Linlithgow and East Falkirk) (Lab): The Home Secretary said earlier that the DNA of an innocent person investigated for a possible terrorist offence could be held for a much longer period-up to 25 years, I think he said. On whose authority will such decisions be taken?
Alan Johnson: That system will be set out in the Bill; there will be no discretion for chief constables on that. What I am saying is that we need to keep the DNA records of those arrested but not convicted for terrorist charges for longer.
The Conservative Party has made unfavourable comparisons between the retention framework that we are proposing in this Bill and the model that has been adopted in Scotland. The Conservatives believe that that system should be enshrined in this Bill, but they are profoundly wrong. The Scottish model, like our proposals, accepts that those who are arrested for an offence, even if they are not convicted, are more likely to be convicted of an offence on a future occasion, but it differs on three significant points. First, it only retains DNA records of those who are arrested for but not convicted of serious crimes. It does not take into account the most recent research-I mentioned it in response to an intervention-which shows that the seriousness of the offence for which someone is initially arrested but not convicted has no bearing on the likelihood of re-arrest. Indeed, the Scottish model was based on no research whatsoever.
In 2008-09 alone, 79 matches were drawn from the DNA database for cases of rape, murder or manslaughter from people who had been arrested but not convicted of an offence. This is an important point. In 36 of those cases-nearly half of them-the DNA match was vital in securing a conviction. In respect of those 36 cases, 13 of the perpetrators were on the database because they had been arrested for but not convicted of a serious crime. That means that 23 perpetrators were on the database because they had been arrested for but not convicted of a minor offence. So if we were to apply the Scottish model, as the Conservative party urges us to do, it is highly likely that in this year alone these 23 victims of the most serious crimes and their families would have been denied justice-23 killers and rapists would have remained free to kill and rape again. It is unlikely that the cases I referred to earlier of Cathy Marlow's killer, Matthew Fagan, or the rapist Abdirahman Ali Gudaal would have been detected through DNA evidence, because both were arrested but not convicted for less serious crimes. This is at the heart of this debate.
Pete Wishart: The Home Secretary will of course recall that it was the Labour Executive, in conjunction with the Liberals, who got this Scottish system through the Scottish Parliament. Is he saying today that the Scottish Parliament should simply copy and introduce his proposals just because he feels that this is the right thing to do?
Alan Johnson: I hear the hon. Gentleman's plea of not guilty, which I accept. I am not trying to impose our system on Scotland; I am saying that the argument being made by the Conservatives, which is that the Scottish model is the one we should adopt, is profoundly wrong.
Chris Grayling: May I ask the Home Secretary to respond to a letter written by his colleague, Lord Bach, the Under-Secretary of State for Justice, on 5 July 2009? He said the following in relation to research carried out on the Scottish system by Professor James Fraser:
"He did not uncover any evidence to suggest that this approach to retention has caused any detriment to the detection of serious crime in Scotland".
Alan Johnson: I am not going to respond to a quote taken out of context from a letter. We are all trying to find reasons why the Scottish model should not be considered sacrosanct, so here are the facts. Twenty-three rapists and murderers would be free if this country adopted what the Conservative party is asking us to adopt. Conservative Members can shake their heads as much as they want, but those are the facts.
The second issue relating to the comparison with the Scottish model is that that model also proposes that the records of those not convicted should be initially retained for three years, as opposed to six. However, at the end of that period the Scottish courts have the power to extend the retention period for successive increments of two years at a time. Those, like the Conservative Opposition, who have argued for the Scottish model to be adopted here have done so on the basis that they oppose the indefinite retention of DNA records of those who have committed no crime-the "innocent", to cite their amendment. However, in advocating this model, they are in fact arguing in favour of a system that can retain the DNA records of innocent people indefinitely.
Finally, under Scottish legislation, it is not just the DNA profile that is retained, but the DNA sample-the actual genetic material. For all those convicted, it is retained for at least 20 years. For those arrested but not convicted of serious offences, it is retained initially for three years, but potentially for longer should the courts exercise their power to extend the retention period. Under our proposals, as I have mentioned, this material must be destroyed within six months.
I make no criticism of the model adopted in Scotland- [ Laughter. ] I have made only mild criticisms of it. We have separate legal systems and, on this sensitive issue, I shall not proselytise on what is in the best interests of the Scottish people. I am here to talk about what is in the best interests of England and Wales. I believe that the framework we propose is proportionate, led by the best available evidence and guided by public opinion and the professional judgment of the police.
Michael Connarty: I know that my right hon. Friend is trying to be fair to the present Government of Scotland, which is now an SNP minority Government. A plea of mitigation from some of us in Scotland is that we would rather see the system he is introducing. For example, the murder of a dear and close cousin of mine has been, as yet, unsolved for 20 years. I would like to see a system where criminals can be screened, so that we might find the perpetrator. I ask my right hon. Friend please to consider giving advice to our colleagues in Scotland to think again and to bring in a system like the one that he is proposing.
Alan Johnson: The Association of Chief Police Officers in Scotland makes the same point, as do many people in Scotland. My point is that the Government at the time was a Labour-Lib Dem coalition and there was no research to go on. The introduction of the three-year limit was not based on any research, because the research did not exist. The research now suggests that the hazard curve does not run out in three years-people do not become as likely as the rest of the population to be arrested again if they are arrested but not convicted-but after six years, and we believe that that is a conservative estimate.
I also think that it is wrong to keep the genetic material. For that reason, and for all the other reasons I have mentioned, the Opposition are absolutely wrong to seek to adopt the Scottish model under this Bill.
Mr. Gordon Prentice: Why is it, then, that we have received a briefing from the Equality and Human Rights Commission, which will be aware of the research to which my friend has alluded, advising us that if my friend's proposals go through,
"the Government is likely to be in breach of Article 8 of the Convention and be acting unlawfully"?
Alan Johnson: Do not ask me why the commission has sent letters to Members suggesting that. Of course, there are profound misunderstandings on this point. There are profound misunderstandings among those who sit on the Opposition Benches. Let me give one example of such a misunderstanding from the hon. Member for Ashford, who stated a while ago-he has not repeated it since, so perhaps he now understands-that Scotland had a better success rate than England. He said that he had read the statistics from the 2006 national DNA database annual report, which showed that the Scottish DNA database had a 68 per cent. success rate while that in England and Wales had only a 52 per cent. success rate. I trust that he has since found out that he was not comparing like with like. In Scotland at that time, they were able to compare the matches with the crime scene and the crime scene with the individuals. In England, we had only half the story in 2005. Now we have the whole story. The annual report for 2009 will show that the success rate in England and Wales is 13 per cent. higher than that in Scotland.
There are an awful lot of misperceptions about this, and all I know is that this Parliament must make up its own mind. It will be bombarded with evidence from all sides and with evidence and pleas from the victims of crime. I believe that on the basis of the evidence and
research that is now available, we should certainly not adopt the Scottish model, and should adopt the measures set out in this Bill.
Keith Vaz: May I come to the defence of the hon. Member for Ashford (Damian Green)? A few weeks ago he produced some interesting research about the postcode lottery. Depending on where people lived, they had their DNA removed from the database or they did not. Surely the proposal alluded to by Peter Neyroud-that one body should look at the issue of retention, rather than 43 chief constables-may well be more attractive. He would still be able to produce his guidelines, but there would be one set of certain facts and criteria, rather than 43 chief constables'.
Alan Johnson: As always, my right hon. Friend makes an important point. As I said, we need to look at the system to replace the current postcode lottery or any other type of lottery. It is not right, and we are suggesting that we amend that in the Bill.
Along with measures to curb antisocial behaviour and gang involvement among young people, and to cut police bureaucracy and grant greater protection to victims of domestic violence, the Bill will bring greater protection and peace of mind to the public and make our streets safer. I commend the Bill to the House.
Chris Grayling (Epsom and Ewell) (Con): As a typical Bill at the tail-end of a Parliament, this had all the potential to be a doggy-bag of a Bill, with a combination of leftovers from what the Government have been doing right across the Parliament, a last-gasp attempt to win support from some frustrated groups ahead of the general election-the kind of Bill that should be relatively uncontroversial and which, given the Government's record, would probably turn out to be pretty meaningless as well. But as always, the Government have left one big sting in the tail. For that reason, we will not stand by and allow the Bill to pass through Parliament before the election.
It is nice to have a debate on a real point of principle. That is what we will debate this afternoon. Unless the Home Secretary finally accepts that his proposals on the DNA database are opposed across the House and unless he accepts that things will have to be different, we cannot support what he is doing. His remarks, if anything, have further confused rather than clarified both his position and the debate.