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(3AA) Where any fingerprint, impression of footwear or DNA profile has been taken from a person under this Order who is
arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall be destroyed no later than-
(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the "initial retention date"; or
(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken (or if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken), such date being the "initial DNA retention date"; or
(c) such later date as may be ordered under paragraph (3AB).
(3AB) On application made by the Chief Constable within the period of three months before the initial retention date or the initial DNA retention date as the case may be, 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 fingerprint, impression of footwear or DNA profile.
(3AC) An order under paragraph (3AB) shall not specify a date more than two years later than-
(a) the initial retention date in relation to fingerprints or impressions of footwear, or
(b) the initial DNA retention date in the case of a DNA profile.
(3AD) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.
(3AE) Paragraph (3AA) does not apply where-
(a) an application under paragraph (3AB) above has been made but has not been determined;
(b) the period within which an appeal may be brought under paragraph (3AD) 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(c) such an appeal has been brought but has not been withdrawn or finally determined.
(a) the period within which an appeal referred to in paragraph (3AD) 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(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in paragraph (3AC),
the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.'.
Amendment 41, page 42, line 21, leave out from beginning to end of line 2 on page 46.
Amendment 42, page 49, line 29, at end insert-
'(5) For the purposes of this section 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 the Police and Criminal Evidence (Northern Ireland) Order 1989.
(6) An order under this section must be made by statutory instrument.
(7) A statutory instrument containing an order under subsection (6) above shall not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.'.
Amendment 4, in clause 22, page 71, line 24, leave out from first 'of' to 'which' and insert
'section [Retention, destruction and use of fingerprints and samples]'.Amendment 5, page 71, line 31, leave out 'sections 64 to 64ZN' and insert 'section 64'.
Amendment 35, page 72, line 2, at end insert-
'(6) A statutory instrument containing an order under this section must be laid before Parliament within 12 months of Royal Assent to this Act.'.
Government amendments 14 to 16.
Amendment 6, in clause 58, page 106, line 30, leave out subsections (4) to (8).
Amendment 7, page 106, line 30, leave out '20 to' and insert '22 and'.
James Brokenshire: There is little doubt about the scope and powerful effect of DNA evidence. In many respects, the use of DNA has revolutionised policing. The ability to match tiny traces of DNA left at the scene of a crime by an offender with the DNA that is taken from a suspect has helped to solve serious crimes and to reduce the scope for miscarriages of justice. We agree that the use of DNA can be an important evidential tool in prosecuting crimes and bringing offenders to justice. The use of modern scientific techniques makes an important contribution to combating crime, but the use of that technology must strike the right balance between the promotion of the wider public interest and public safety, and the protection of important private-life interests, which are central to this debate, to the new clause and to the Government's proposals in the Bill. Unlike the Government, apparently, we acknowledge that there are limits to both the effectiveness and acceptability of DNA use if it is taken too far.
The DNA database continues to grow at an exceptional rate. More than 32,000 profiles were added in November 2009 alone. Proportionately, we have the largest such database in the world. This country claims a pioneering role in the utilisation of DNA technology, and that is something that we can be proud of. In so doing, however, we have a special responsibility to ensure that the way in which it is used strikes the right balance regarding what is permissible when it comes to potential interference in people's private lives. Until recently, the Government took the view that the indefinite retention of DNA profiles was acceptable. In their view, simply growing the DNA database for the sake of doing so was a policy objective in its own right. For the past year, they have been fighting hard to limit their commitment to following the judgment of the European Court of Human Rights in the S and Marper case. The judgment ruled that the indefinite retention of the DNA profiles of those who have never been convicted of an offence was not in accordance with the relevant convention rights. It sums up the current viewpoint of this Government that even if someone volunteers their DNA, once it is on the national DNA database, they cannot get it removed except in exceptional circumstances.
In response to the Court's judgment, the Government first said that they wanted to deal with the matter by order, out of the glare of full parliamentary scrutiny. Next, they said that they would retain data and profiles for up to 12 years. Now, under pressure, they have come down to a retention period of six years for those who have never been convicted of an offence. However, they remain obdurate about the basic principle of retaining data for as long as possible, regardless of what people have done or whether they were even charged, let alone found guilty. DNA that is taken from anyone who ends up in a police station following arrest will be stored by the state for six years just in case.
The number of profiles on the DNA database has certainly grown. The number of profiles stood at just over 2 million in 2003, and it is now well above 5.5 million. The full impact of the situation becomes clear only when one breaks down the figures in relation to the countries of the United Kingdom. Some 4 per cent. of the population of Northern Ireland, nearly 5 per cent. of the population of Scotland and more than 10 per cent. of the population of England and Wales are affected. However, rather than there being an increase in the number of crimes detected, the reverse has happened. The focus on quantity rather than on the quality of the data retained has led to diminishing returns. The proportion of crimes detected by DNA has dropped. 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.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Is my hon. Friend making a distinction between crimes which are detected and cases which are carried forward with corroborative evidence based on DNA? In the latter, there is a very large number of corroborative evidence cases.
James Brokenshire: There is a distinction to be drawn between, say, detections and convictions. That is an important distinction to make. Indeed, the National Policing Improvement Agency recognised that in a previous DNA database report:
"It is important to note that the availability of DNA match intelligence may not have been causal in solving the crime as detections are achieved through integrated criminal investigation and not by forensic science alone."
Such cases are often quite complicated, so although a DNA match may have played an important role, that of itself may not be the determining factor. It can only place someone at a particular point at a particular time. The Crown Prosecution Service will look for other corroborative factors in bringing its their prosecution case.
There have been other consequences of the Government's database state policy approach. About a million people on the database have never been convicted, cautioned or even formally warned or reprimanded, as recorded by the police national computer. It is estimated that there are records of approximately 100,000 innocent children on the database. It is the impact that this has on those who feel they have been criminalised that is so damaging. As one person who wrote to my hon. Friend the Member for Ashford (Damian Green) put it:
"The charges were dropped five hours later but I was informed that my DNA and fingerprints would remain on their files as though I was a common criminal. As a respected member of the community, holder of the British Empire Medal and a retired Army Officer I shouldn't have to be put through this continual torment."
Keith Vaz (Leicester, East) (Lab): I am sure the hon. Gentleman would be the first to admit that the Government have moved since Second Reading. That is because of the pressure from all sides of the House. Does he accept that we are in this situation because the Government ought to have moved quickly on the removal of DNA profiles from the database? If that system had been working more effectively, we would not be in the position that we are in today.
James Brokenshire: That has been highlighted by what might be described as the postcode lottery, an issue on which I know the right hon. Gentleman has focused clearly. The fact that certain police forces are prepared, in exceptional circumstances, under guidance from the Association of Chief Police Officers, to remove the profiles of those never convicted of and never charged with an offence, whereas other police forces will not remove any of those details, has drawn attention to the issue. However, the right hon. Gentleman needs to be careful. An individual must approach the police to have that record removed. There is a big difference between a robust system that reflects the concept that people are innocent unless proven guilty and proactively removes those profiles, and a system whereby profiles are removed only when an individual approaches the police with that request.
The make-up of the database has had a starkly disproportionate impact on minority communities. It is thought to contain the records of about 40 per cent. of black men in the UK. Some have suggested that when the focus is narrowed to young black men, the figure jumps to 70 per cent. That compares with 13 per cent. of Asian men and 9 per cent. of white men. The national DNA database and the approach taken to it are perceived to have criminalised minority communities and to have taken an almost aggressive stance towards them. I know, from the discussions that I have had, that the issue is of significant concern for a number of those communities.
More fundamentally, the measure fails to take account of one of the fundamental principles of our liberal democracy: the presumption of innocence before the law unless one has been proven guilty. That principle should be an important guiding factor in framing the debate on retention, rather than being an inconvenient anomaly, as the Government appear to view it, given their historical approach to DNA retention.
However, we agree with the Government on some things: DNA samples should be destroyed as soon as practicable, once a profile has been taken; when an adult has been convicted of a recordable offence, DNA should be retained indefinitely; and when consent to put DNA profiles on the database has been volunteered, the withdrawal of that consent should be possible. We have also long argued for the need to ensure that police can retrospectively take samples for a longer period after conviction, and from those convicted overseas. We are therefore glad that the Government have responded positively to that call, and we welcome their changes to improve the oversight and reporting of the national DNA database. I welcome also their amendments to clarify that arrangement and make it somewhat stronger.
The Minister for Policing, Crime and Counter-Terrorism (Mr. David Hanson): I have been trying to follow the hon. Gentleman's logic. He is content for DNA to be taken for up to three years for serious offences, but not for up to six years, and I cannot quite understand the logic of the difference between the two, apart from the time scale given the judgment that has been made. I really cannot see his logic.
James Brokenshire: Well, we shall come to the judgment on timing.
I was just about to turn to retention, which is central to the debate, and the balance to be struck in terms of the presumption of innocence until proven guilty. I appreciate that the Minister and the Government take the reverse approach of wishing to retain data for as long as possible. That has been their historical approach, and they have made their position clear. We approach the issue from the alternative direction, saying that DNA should be retained for the minimum period that it is safe to do so. That is why we have drawn a distinction: we do not simply say that all DNA profiles of anyone arrested for an offence but not convicted should be removed; we strike that balance-that proportionate balance, as we see it-by having a period during which the DNA of those arrested for an offence but not necessarily charged or convicted should be retained.
There is a real difference between us on the retention of profiles, and the Minister alluded to it. The Government argue that, when someone has been acquitted of any wrongdoing, they should treat them as a future or potential suspect in a criminal investigation. Such people are supposed to be innocent in the eyes of the law, but the Government are suggesting a blanket period of six years, regardless of the nature of the offence, the crime that may or may not have been committed or whether anyone was found guilty.
The Government have sought to justify their position on two main grounds. Their "hazard rate analysis", as they call it, compares the likelihood of re-arrest within a specified period following an initial arrest with the general propensity for arrest in the general population. The "arrest to arrest hazard curve" is the analysis on which the Government have sought to pin their six-year period. However, by doing so the Government conflate the fundamental difference between arrest and conviction. They use re-arrest as a proxy for having committed an offence, even though a second arrest may be as unsound as the first. They also fail to take account of what has been termed "the confirmation bias by investigating officers"-the fact that, once a person is known to the police, they are more likely to be considered a suspect when future offences are investigated. A bias in the statistics is created as a consequence.
The Government acknowledge that the analysis is based on extrapolated, rather than real, data, because they had only a three-year window to consider the data that were available. Therefore, estimated data on the general population was used, the extrapolated risk curve is quite sensitive to errors, and the lines are measured with some degree of uncertainty.
4.15 pm
It is highly questionable whether this latest Home Office-produced research offers much more than the previous, incomplete research produced by the Jill Dando Institute of Crime Science, which the Home Office published in support of its previous policy of retaining DNA for 12 years. As Gloria Laycock, the director of the Jill Dando Institute, acknowledged, it was a mistake to publish that incomplete research, which was based on data to which it did not even have direct access. She said:
"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'."
It is also interesting to note that the Information Commissioner has formed a different view from that of the Government on the interpretation of the hazard rate analysis data, stating that he
"remains concerned that the way this evidence is being interpreted at present does not provide an appropriate basis for the proposed retention periods."
He suggests that a shorter retention period for those not convicted of any crime should be adopted than that advocated by the Government:
"The Commissioner does not consider that the evidence presented supports a general retention period of anything like six years."
Tony Baldry (Banbury) (Con): Since the Bill came out of Committee, I have been reflecting on what stands between us and the Government on this issue. It is not as neat as the question of three or six years' retention; it is to do with the fact that policing has to be policing by consent. During the passage of the Bill, and in the build-up to it, the Government have not succeeded in getting the consent of the people, in the broadest sense, for their proposals. Police officers and police forces have too often given the impression that if they retain DNA it is because they have reasonable suspicion that someone has committed an offence or may commit an offence. The Government have failed to convince people that they have the public's consent to what they are proposing.
Mr. Speaker: Order. While it is always a pleasure to listen to the mellifluous tones of my constituency neighbour, that had about it the flavour of a mini-speech rather than an intervention.
James Brokenshire: A mini-speech perhaps, but one with some important points wrapped up in it as regards the need for policing by consent, the public's confidence and trust in policing, and the way in which the national DNA database is operated. Indeed, senior police officers have made that very evident in saying that it is for us in Parliament to decide what is appropriate, while reflecting the need to ensure that there is that trust and confidence in policing as a whole. In many ways, that mirrors some of the points that the right hon. Member for Leicester, East (Keith Vaz) has already made.
The second, and perhaps more emotive, justification that the Government have given for their approach has been based on individual cases, with the claim that certain serious crimes might not have been solved if an alternative approach to the one that they have advanced were adopted. However, careful examination of the facts of those cases shows that either they would have been detected and solved by virtue of our proposals in new clause 2 or there were other material factors that would have led to an arrest, DNA sampling, and the requisite corroborative evidence being obtained to secure a conviction.
Let us take, for example, the case of Abdul Azad, who was convicted of an appalling stranger rape that took place in 2005. His conviction was partly the result of DNA found under the fingernails of his victim. It was an appalling crime, but it is also an example of a crime in which the DNA profile would still have been available to the police under our proposals, as Azad had previously been arrested for violent disorder-a crime of violence.
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