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8 Mar 2010 : Column 44

Or let us take the case of Abdirahman Ali Gudaal, a Dutch national who was arrested on suspicion of robbery and went on to commit an appalling and shocking rape two years later. The Home Office thought that the case supported its arguments so strongly that it tried to count it twice in a letter of what were intended to be five good examples that it sent to members of the Public Bill Committee. In addition to trying to pass off one case as two examples as the result of an administrative error, another oversight was the failure to mention that the appalling rape took place in Gudaal's bedsit flat. The Home Office's own anonymised summary of the case also suggests that Gudaal was arrested after being identified by his victim.

Mr. Hanson: If the Government's proposals resulted in stopping one murder or one rape, would they not be worth while?

James Brokenshire: The point is that the Minister has sought to advance various individual cases to prove that our approach is somehow unreasonable and that we are in some way seeking to support the perpetrators of serious crimes. Actually, an analysis of those cases does not bear that out. In citing them, the Government are in many ways making our case for us.

Mr. Hogg: I always hate to disagree with my hon. Friend, but he will know the point that I made in Committee about the case of D, in which I acted for the defendant. The rape occurred some 10 years or so before his arrest, and he was arrested only because of the DNA that was found on the rape sample.

James Brokenshire: I am grateful to my right hon. and learned Friend for highlighting that case, as he did in Committee, but the Government will acknowledge that even on the basis of their proposals there must be a risk that someone may not be caught. There is always a case for balance and judgment.

Keith Vaz: Does the hon. Gentleman not feel that those who advance the one case of finding a rapist or other criminal as a result of DNA are actually making the case for everyone being on the DNA database? I am sure he would agree that that would be a very large step for us to take.

James Brokenshire: I would always hesitate to make law based on individual cases, but that in no way undermines the considerable traumas of the victims of the crimes that have rightly been solved using DNA evidence. However, the point is that such cases are complex, and forensics are often only one element in solving a particular case, so it is a mistake to present the matter in a stark way.

Mr. Graham Stuart (Beverley and Holderness) (Con): I was shocked by the Minister's intervention just now. His form of logic would strip away all civil liberties and restrict any brakes on powers of the state that might ever, in any circumstances, have led to the prevention of a serious crime if they had only been in place. I cannot believe that we have Ministers who place so little value on our civil liberties and cannot see the fine judgment that has to be made in coming to a decision on such matters.

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James Brokenshire: Perhaps it is the mindset that this Government have always had of always erring on the side of the Big Brother database state. In many ways they are making the case for universal inclusion on the DNA database, which is utterly unacceptable and, I know, is not the approach that even the Minister takes.

As I have said, there are complications. DNA forensics are often important in securing a conviction, but other material factors and lines of inquiry make a significant contribution. It is spurious to suggest that certain cases, such as those that have been adduced, would have gone unsolved, or that justice would have been denied, as a consequence of the proposals outlined in our new clause 1.

Let us take the case of Jeremiah Sheridan, which was relied on most recently by the Prime Minister. It was a particularly shocking case, as Sheridan brutally raped a disabled woman. In a complex case, he was subsequently caught, prosecuted and convicted because of the DNA that he left behind at the scene. The Prime Minister has claimed that the case would not have been solved if a revised approach to that proposed by the Government were adopted, but he misses the point totally. We should retain DNA that is left behind at crime scenes, and greater focus should be placed on the robustness of that part of the database. When a DNA profile is added to the database following an arrest for an offence, it should be checked against the cold-case database. If someone is subsequently arrested for a different offence and there is a DNA match, they should be prosecuted and the case should be solved.

If the Government's case studies do anything, they underline the reasoned approach of our proposal, which properly reflects the need to ensure that DNA forensics are available to help the police to bring serious criminals to justice. However, there is a world of difference between maintaining the DNA from crime scenes and keeping on file the DNA of the innocent, just in case they might one day be re-arrested in connection with a crime.

That is the Government's justification for their approach, but they should concentrate on getting their house in order. There should be much greater focus not simply on growing the DNA database of innocent people for the sake of it, but on obtaining the DNA of those already convicted of offences and those currently residing in Her Majesty's prisons. I welcome the fact that the Government are finally taking that seriously in some of their proposals in the Bill. That might be a rather better starting point for tackling crime in future.

What is an acceptable period for the retention of DNA records of those arrested for, but not convicted of, any offence? We believe that a similar model to that used in Scotland has some merit. In Scotland, if someone is convicted of a recordable offence, their DNA profile is retained indefinitely, but if they are not convicted of an offence, their DNA profile should not be retained once it has fulfilled the purpose for which it was taken, save for crimes of violence or sexual offences. In the latter category, DNA profiles should be retained for a limited period of three years, with the possibility of an extension for a further two years with court oversight.

The Scottish model was reviewed by Professor James Fraser from the Strathclyde university Centre for Forensic Science in 2008. Despite what the Home Secretary has asserted, Professor Fraser's terms of reference were wide enough to consider alternatives in other systems,
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and he recommended no material changes to the current system in Scotland. Lord Bach, the Minister's colleague in the Ministry of Justice, acknowledged that:

We believe that an approach similar to that in Scotland should be adopted in the other nations of the United Kingdom, but with one important distinction, namely that the trigger for retention in cases involving violence or sexual offences should be arrest rather than charge.

We believe that that approach takes proper account of the competing interests of the individual against the collective need for protection from crime. It strikes the right balance between respect for an individual's private life and the legitimate interests of the state in preventing and detecting crime. As the Home Office's hazard rate analysis suggests, that is ultimately a matter of judgment. It is a judgment between retaining trust and confidence in the use of DNA materials, and trust and confidence in the police's use of such forensics. It is also a judgment on how to treat those who have never been convicted of an offence, the rights of the state to interfere in the lives of others, and the need to protect the public from crime.

The Government have sought to make the issue a political dividing line. So be it. That will expose how they have in many ways played fast and loose with the facts of sensitive cases, and how even now they cling to the view that the state needs to be intrusive and invasive, and that it needs to know as much information about all of us as it can, regardless of proportionality. It will also expose how the fundamental principles of innocence and guilt are almost inconsequential to the Government, and how they continue to delude themselves that draconian powers will mean a safer and more just society.

That is question of judgment, and on that and so many other issues, the Government's judgment is flawed. They are on the wrong side of the line and the wrong side of the argument, and increasingly, they are failing to uphold the security that they claim to support.

Keith Vaz: I am delighted that we are able to have a debate of this kind on this very important subject, bearing in mind that so many concerns about the Government's DNA database proposals were expressed on Second Reading. To help the House, I should point out that today, the Select Committee on Home Affairs published our report into the DNA database. I apologise for not getting it to Members sooner, but we were keen to let the House know of our deliberations in time for this debate. We do not control Government business of course, so we did not know when Report would be. We met in what one might call an emergency session last Thursday to agree this report, and I wish to thank all the members of the Committee for their work.

4.30 pm

The report was prompted by the concern expressed on Second Reading-and over the last few years-about the ever-growing DNA database. We can all agree on the facts-I certainly agree with the facts put forward by the hon. Member for Hornchurch (James Brokenshire). There is no dispute that it is one of the largest-if not the largest-DNA databases in the world, and our
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concern is the way in which it has grown. The Government have often said that information should only be retained if necessary, and that must apply to the use of DNA profiles.

During our deliberations, we took evidence from several individuals, including my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) and representatives of the Jill Dando Institute of Crime Science. Among our most persuasive witnesses was Sir Alec Jeffreys, the inventor of DNA profiling. When someone as distinguished as Sir Alec appears before a Select Committee and expresses the concern that he never anticipated that the DNA profile of innocent people would be kept on the database, members of the Committee have to listen carefully to him. The Minister was in the session just before or after Sir Alec gave evidence, and I think that he heard that evidence. I do not say that politicians have hidden agendas-many of our agendas are open and transparent-but when someone like Sir Alec says that such retention was not intended, we have to take that seriously.

The Committee had different views about the length of time that people's DNA should be retained on the database. Some felt strongly that everyone's DNA should be on the database. Some felt that the DNA of innocent people should not be kept on it at all-in other words, it should be removed almost immediately. However, there was general agreement that the Government had delayed unnecessarily following the decision by the European Court of Human Rights. We could have avoided this dispute if the Government had acted much more quickly.

If there is a need for consensus on Home Affairs issues, this is one of those occasions on which we should have reached all-party agreement, because this issue affects so many of our citizens. There is no dispute on either side of the House that, if DNA helps in the detection of crime-as we say in our report, there is no doubt about that-it must be used to do so. The point of contention is the worry about the ability of this Government or any Government to hold information about citizens and therefore to expand their possession of that information to the detriment of individual citizens. Balancing the rights of the individual and civil liberties with the interests of justice has to be done very carefully.

Mr. Hogg: What one has to resolve is the prejudice to the individual of having their DNA on a national database. The right hon. Gentleman has spoken of the prejudice, but I am not clear what prejudice he is identifying, other than the fact that an innocent individual might object to retention. That is a real consideration, but it is not necessarily prejudice.

Keith Vaz: I would not say that the right hon. and learned Gentleman was in court every day, but he is there much more often than probably every other Member of the House, bar the hon. Member for Banbury (Tony Baldry), and probably even more than all of us put together. The right hon. and learned Gentleman therefore speaks as an expert, and he knows when such expertise is necessary. However, there is a higher judgment. Our deliberations need to be guided by what is in the public interest, in terms of what the public would want. He sees the matter from a different point of view. He sees it as a lawyer-a very distinguished lawyer-where the expertise offered through DNA can prove either that his
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client is guilty or that he is not guilty. There is a different judgment to be made by Members of this House from those judgments to be made by lawyers. I say that with the greatest of respect for the right hon. and learned Gentleman, whom I have known for many years, and for what he has said about such issues before the House.

However, the Government's position-that we should retain the data indefinitely-is indefensible, yet they hung on to it for a long time. They could have created a great deal of good will among their own Back Benchers and the Opposition parties if they had retreated from that indefensible position much sooner. The Government then went for a longer period, which they subsequently reduced to six years. There were differences among those of us on the Select Committee on how long the period should be, but we came to the conclusion-this is set out in the conclusions that we have published today-that a three-year period probably strikes the right balance. We said that the period should not be less than three years-although it could be longer-but that three years was a reasonable length of time. If hon. Members know the personalities of the members of the Home Affairs Committee and their different politics, they will understand that achieving a unanimous report is quite difficult. Consensus is not easy on such issues, but there was a consensus that holding the data for six years was too long.

The Government need to look at that period for the very reasons put forward by the Opposition spokesperson, the hon. Member for Hornchurch. It worries me that the DNA of so many young black men is on the database. That cannot be right. We are talking about high percentages-between 60 and 70 per cent. in some age groups-but Ministers have given no explanation of that. They cannot expect Members of Parliament to go along with more and more of our citizens being put on the database just because of the colour of their skin. I have heard no explanation from the Minister as to why that is happening, nor have I heard about any research that the Home Office intends to commission to find that out. In discussing such issues, it is important that we should know why those things are happening. I raised that point with the Minister on Second Reading, right at the start of our proceedings on this Bill-indeed, I raised it before, when the European Court made its judgment-so he really needs to tell us now. He cannot just say, "Tut-tut, it's very sad that this is the case, but we don't know why it's happening." Why is it happening? These are matters of fact; they are not even matters of debate.

However, where the Minister has me-that is, where he has made enormous progress and been prepared to listen-is on the issue of innocent people trying to remove their entries from the database once they have been arrested, by writing in and saying, "Could we please have our DNA removed?"

During our deliberations we took evidence from the hon. Member for Hammersmith and Fulham (Mr. Hands). He told us about his experience after the death of an elderly relative whom he had not seen for many years, when, because he was related to that particular woman, the police came and took his DNA. He tried for a year and a half to get some explanation from the chief constable of the west midlands as to whether his DNA was still on the database and when it could be removed. The chief constable appeared before us when we were
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preparing the report, but he did not know the answer, even though the issue was in the public domain. He wrote to me recently and said, "Very good news: Mr. Hands's DNA is not on the database." Why did it take a year and a half, parliamentary questions, and the chief constable appearing before a Select Committee for the hon. Gentleman to get an answer?

That is where the Government's problems lie. If only there was a much easier, more robust and more defensible way of dealing with the issue, the Government would not be in their present difficulties, with so many on their own Benches worrying about the issue. Those who are innocent should be able to write in, such as Mr. Jonathan Leighton, who gave evidence to our Committee. Why is his DNA on the database? He is a student from Oxford university. A protester had climbed up a tree because the local authority in Oxford wished to chop it down. Mr. Leighton was not involved in the protest, and all he did was to throw a bottle of water up to the gentleman because he was thirsty. He was arrested, and his DNA was put on the database and retained from that moment. If a system were introduced that made it easy for innocent people to write in, the Government would take the House with them on that.

I am delighted that the Minister has looked carefully at this issue, and he has come up with proposals that the Select Committee welcome. I hope he does not think that all our reports always criticise the Government, because they do not. The only bits that the media pick up are our criticisms of Government policy, but the purpose of Select Committees is to be robust so that the Government can do better. Otherwise, we would be like those who sat in the Kremlin before elections were run in the Soviet Union, agreeing with everything that the then Russian Government did. We have to point out to the Government where we think they have gone wrong, and I think that our method of scrutiny is pretty good. We always take evidence from Ministers, as we did in this case from the Minister for Policing, Crime and Counter-Terrorism, my right hon. Friend the Member for Delyn (Mr. Hanson).

My right hon. Friend's proposals are very welcome. Putting this matter on a statutory footing is the right approach. Innocent people-indeed, anyone-will be able to write in to the proposed body and say, "I'd like my DNA removed." The body will issue robust guidelines, which is welcome, and there will be others besides police officers sitting on it. The Select Committee has asked to be consulted on the guidance, and we look forward to receiving assurance from the Minister that that will happen. Given the imminence of the general election, it would be nice if that could be done as soon as possible. We would like to do it before the House rises whenever it is going to rise, at the end of March.

The measures will help us to show the public that we are serious about dealing with the DNA of innocent people, and we welcome these important changes. The Minister has certainly answered some of the criticisms that I made on Second Reading, but he still needs to do some work on the time limit. Of course the police are advising him that six years is the right time limit, and that three years is too short a period, but I urge him to look again at this. If the system works, people such as myself will be willing to give him the benefit of the doubt on time limits if we can end the postcode lottery-whereby those living in north Wales, for example, get a
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better response than those in Leicestershire-and if we can take the power away from the 43 chief constables. If such consistency can be introduced into the system, the Government will have done an enormous amount to deal with the criticisms that have been made since the European Court judgment. I look forward to receiving such assurances from the Minister.

Chris Huhne (Eastleigh) (LD): I am always delighted to follow the right hon. Member for Leicester, East (Keith Vaz) who, as usual, has been speaking an awful lot of good sense. I am delighted that his Committee was able to reach a unanimous view on this sensitive issue, and I hope that the Minister and his officials were listening to the points that he raised.

I wish to speak to new clauses 5 to 7, tabled in my name and those of my colleagues. I outlined our position on the DNA database on Second Reading, and my hon. Friends the Members for Carshalton and Wallington (Tom Brake) and for Winchester (Mr. Oaten) did so in Committee. We believe that only the DNA of people who have been convicted of a criminal offence should be on the database. There should be a primacy of the presumption of innocence over guilt. DNA should by all means be taken following an arrest but, if no subsequent conviction is achieved, the data relating to that person should be removed from the database on conclusion of the investigation or criminal proceedings. That should be a simple rule with no caveats, and no ifs or buts: a dividing line between innocence and guilt.

The amendments tabled by the hon. Member for Epsom and Ewell (Chris Grayling) and his colleagues represent a pragmatic compromise. There may be some doubt as to whether a two-year extension period is necessary; it may lead to function creep, whereby all samples are tacitly assumed to be kept for five rather than three years. On the whole, the Scottish model on which the Conservatives have based their amendments is not our first preferred policy, but it represents in our eyes-as one would expect, given that it was introduced in a Labour-Liberal Democrat Administration, in which the Justice Secretary was my esteemed colleague Lord Wallace of the other place-a much more palatable solution than the one proposed by the Government. If the Conservatives press their amending provisions to the vote, we would support them.

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