 House of Commons |
Session 2009 - 10 Publications on the internet Crime and Security Bill |
The Committee consisted of the following Members:Alan Sandall,
Committee Clerk † attended
the Committee Public Bill CommitteeThursday 4 February 2010(Morning)[Frank Cook in the Chair]Crime and Security BillClause 14Material
subject to the Police and Criminal Evidence Act
1984 9
am James
Brokenshire (Hornchurch) (Con): I beg to move amendment
148, in clause 14, page 30, line 7, after ‘fingerprints’,
insert ‘or impressions of
footwear’. Good
morning, Mr. Cook, and good morning to the other members of
the Committee. Amendment 148 is probing and relates to the destruction
of particular classes of data. It is designed to test the Government in
relation to the operation of proposed new section 64ZC of the Police
and Criminal Evidence Act 1984. Under PACE, there are powers to take
impressions of footwear among other things such as fingerprints, DNA
profiles and DNA samples. We touched on the issue of footwear. If
someone is wearing trainers, the impression from underneath them can be
relevant intelligence in cases of violent crime. I want to understand
why in other provisions, there are references to impressions of
footwear being destroyed within a particular time, but that does not
appear to apply in relation to new section 64ZC(3). Certainly new
section 64ZD(3) does refer to impressions of footwear. Is there any
inconsistency or is there a rational explanation? I suspect that there
is.
The
Minister for Policing, Crime and Counter-Terrorism (Mr.
David Hanson): Good morning, Mr. Cook. I hope
that I can offer the hon. Gentleman a rational explanation of the
provisions. Clause 14 includes new section 64ZC of PACE, making
provision for the destruction of fingerprints and DNA profiles derived
from samples taken from persons subject to a control order. I hope that
this is the point of clarification he wanted. The amendment would
ensure that impressions of footwear taken from such individuals also
had to be destroyed. I can deal with that by saying to the hon.
Gentleman that there are currently no powers for impressions of
footwear to be taken from controlled persons under any legislation. As
there is no power to take them, there is no need for them to be
destroyed. I hope that is
helpful.
James
Brokenshire: I am grateful for the Minister’s
explanation. As he will appreciate, section 64 covers quite a broad
range of issues, and I simply wanted to confirm what I suspected was
the case. I am grateful for his confirmation and clarification and I
beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Mr.
Hanson: I beg to move amendment 128, in clause
14, page 30, line 14, leave out ‘of a recordable offence’
and
insert— ‘(a)
in England and Wales or Northern Ireland of a recordable offence,
or (b) in
Scotland of an offence which is punishable by
imprisonment,’. This
amendment amends new section 64ZC of PACE to provide that the
destruction regime in that section (persons subject to control orders)
ceases to have effect if the person is convicted of a recordable
offence in Northern Ireland or an offence in Scotland which is
punishable by
imprisonment.
The
Chairman: With this it will be convenient to discuss
Government amendments 129 to 133 and 114 to
121.
Mr.
Hanson: Broadly, these amendments to the clauses relating
to DNA retention make provision for Scotland. Amendments 114 to 121
relate to the introduction of a regime for the retention, destruction
and use of relevant physical data and DNA material under the Terrorism
Act 2000 as applicable to Scotland. Amendments 128 to 133
relate to the destruction regime for fingerprints and non-intimate
samples taken from controlled persons, amending the existing provision
in clauses 14 and 15 relating to the circumstances in which the
material does not have to be destroyed to cover cases in which the
person has a conviction for an offence anywhere in the United Kingdom.
The amendments are, I believe, in order and I commend them to the
Committee. Amendment
128 agreed
to. Amendment
made: 129, in
clause 14, page 30, line 15, at
end
insert— ‘( )
For the purposes of subsection
(1)— (a)
a person has no previous convictions if the person has not previously
been
convicted— (i)
in England and Wales or Northern Ireland of a recordable offence,
or (ii) in
Scotland of an offence which is punishable by imprisonment,
and (b) if the
person has been previously convicted of a recordable offence in England
and Wales or Northern Ireland, the conviction is exempt if it is in
respect of a recordable offence other than a qualifying offence,
committed when the person is aged under
18. ( ) For the
purposes of that
subsection— (a)
a person is to be treated as having been convicted of an offence
if— (i)
he has been given a caution in England and Wales or Northern Ireland in
respect of the offence which, at the time of the caution, he has
admitted,
or (ii) he has
been warned or reprimanded under section 65 of the Crime and Disorder
Act 1998 for the offence,
and (b) if a
person is convicted of more than one offence arising out of a single
course of action, those convictions are to be treated as a single
conviction.’. (
) In this
section— (a)
“recordable offence” has, in relation to a conviction in
Northern Ireland, the meaning given by Article 2(2) of the Police and
Criminal Evidence (Northern Ireland) Order 1989,
and (b)
“qualifying offence” has, in relation to a conviction in
respect of a recordable offence committed in Northern Ireland, the
meaning given by Article 53A of that
Order.’.—(Mr.
Hanson.) This
amendment amends new section 64ZC of PACE so that where a person
already has a conviction in Northern Ireland for a recordable offence,
or in Scotland for an offence which is punishable by imprisonment, the
destruction regime in that section (persons subject to a control order)
does not apply.
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): I beg to
move amendment 99, in clause 14, page 30,
line 19, leave out
‘or only one
exempt
conviction’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 68, in clause 14, page 30,
line 20, after ‘offence’, insert
‘and is not tried for or is acquitted of
that or a related
offence’. Amendment
80, in
clause 14, page 31, line 1, leave
out
‘or only one
exempt
conviction’. Amendment
81, in
clause 14, page 31, line 3, after
‘offence’, insert
‘and is not tried for or is acquitted of
that or of a related
offence’. Amendment
84, in
clause 14, page 32, line 13, leave
out
‘or only one
exempt
conviction’. Amendment
85, in
clause 14, page 32, line 14, after
‘offence’, insert
‘and is not tried for or is acquitted of
that or of a related
offence’. Amendment
74, in
clause 14, page 33, line 25, leave
out
‘or only one
exempt
conviction’. Amendment
75, in
clause 14, page 33, line 26, after
‘offence’, insert
‘and is not tried for or is acquitted of
that or a related
offence’.
Mr.
Hogg: To summarise, the purpose of this group of
amendments is to ensure the destruction of the material either after
acquittal—I have left a period of 12 months from the date of
acquittal—or after a decision. The amendments would require the
destruction of the material within one year of the date of acquittal
or, if there has been no trial, after a reduced period, other than that
provided for in the Bill. Where there is an acquittal, or where there
is no trial, the material should be destroyed after a substantially
abbreviated period—abbreviated in comparison with that in the
Bill.
There is
public anxiety about the retention of material, although as I said in a
previous debate, I am not sure whether I agree with that public
anxiety. None the less, it exists, and the case for destruction is
responsive to it. The Bill probably enables the retention of material
for longer than is consistent with public judgment. As I said last
time, I reach a slightly different judgment, but that is probably
neither here nor there for these purposes. The public want this stuff
to be destroyed fairly promptly, and that is what I have tried to
provide for in the
amendments.
“or
only one exempt
conviction” from
new section 64ZD of PACE. He did not mention this specifically, but the
amendments raise an interesting and important point about the
provisions on exempt convictions—those under which a recordable
offence is not a qualifying offence for the purposes of clause 7 if the
person is under the age of 18. Under those provisions, the DNA profile
of someone who has been convicted of an exempt offence is retained for
five years.
A question
arises about the interrelationship between the regime in new section
64ZD and other regimes. Is the framing is right? Should the Bill refer
to someone
with an exempt conviction when the five-year period has expired? I can
understand that when someone has been subject to an exempt conviction,
as drawn by the Government’s proposals, and the five-year period
has expired, another DNA sample may be required to create a DNA profile
that can be retained on the national DNA database. However, I am
concerned that the proposals will create a period of six years plus
five years and that top-up might lead to a very extended period. In
other words, a profile will already have been taken and put on the
national DNA database as a consequence of an exempt conviction,
triggering the five-year requirement.
As we know,
however, there are duplications on the national DNA database. Someone
who has had their DNA taken may be arrested again. Should it be six
years plus five, or six years plus whatever the residual amount is? In
other words, when the original profile was taken it would normally
trigger the five-year requirement under the exempt conviction regime,
but if a subsequent arrest takes place it will then start a new
six-year period. That is my understanding. I want to test whether that
is the Government’s
intention. I
see some logic in having an extended post-arrest period for certain
serious offences, following the lines of argument that we take in
relation to the treatment of the material. However, an 11-year period
seems extensive in such circumstances. The Government are deeming to
treat someone as having an exempt conviction—in other words, a
young person who may have been subject to a recordable but not
qualifying offence, which is not in the category of serious offences. I
wish to understand the logic and interrelationship between the two
regimes.
I turn to
amendment 68 and my right hon. and learned Friend’s other
amendments. I understand his underlying desire that DNA samples from
those who are innocent and have not been convicted of any crime should
not be retained beyond a reasonable and proportionate period. Striking
that balance and making the right judgment is fundamental to our
debates on clause 14.
I understand
the concept of my right hon. and learned Friend’s amendments,
which follow the basic principle of innocence before the law unless
guilt has been proven. It is, therefore, a question of putting
appropriate restrictions in place. I shall obviously listen carefully
to the Minister’s
response.
Mr.
Hanson: The amendments proposed by the right hon. and
learned Member for Sleaford and North Hykeham would make two specific
changes to the various retention categories set out in clause 14. As he
explained, they would remove references to exempt convictions, seeking
to clarify that an individual is unconvicted.
To make it
clear, “exempt conviction” is defined in proposed new
section 64ZI(2)(b) of PACE, which is to be found on page 35 of the
Bill. It is a conviction for a single recordable but non-qualifying
offence committed by a person under the age of 18. In such cases,
fingerprints and DNA profiles would be retained for five years and then
destroyed. In answer to the hon. Member for Hornchurch, it is our
intention that the clock should be restarted; if necessary, we would
need to take and profile a fresh DNA sample. We recognise that although
young people may fall foul of the law, once they have been dealt with
by the criminal justice system they can become upstanding members of
the community.
My
difficulty—I hope this will help the right hon. and learned
Gentleman—is that the amendment would mean that if a DNA profile
had been derived from a child convicted of an exempt offence, which
would have been deleted after five years, and if that person was
subsequently re-arrested and a fresh DNA sample and fingerprints were
taken, they would not fall within the provisions of the limited
retention and destruction provisions of clause 14.
Theoretically,
the impact of the amendment would be that the DNA profile and
fingerprints could be retained indefinitely, which I know is not the
intention of the right hon. and learned Gentleman. I hope that he will
reflect on that point and withdraw the amendment.
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