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The Parliamentary Under-Secretary of State for the Home Department (Mr. Alan Campbell): Is the hon. Gentleman saying, in a perfectly acceptable way, that he is drawing a line similar to the Scottish model based on the evidence produced by the Home Department, although he disagrees with the line that we have drawn; or is he adopting the Scottish model in full, without reference to that evidence? If he is, where is the evidence on which the Scottish model is based?
James Brokenshire: I am grateful to the Under-Secretary of State for that intervention. I will come on to the support that even the Home Department document appears to provide for a three-year retention period. It appears to support, in some ways, the principles that have been enunciated by the Scottish retention period of three years, plus the two-year top-up. Albeit that the proposals set out in amendment 26 are modelled on the Scottish model, they are not an exact replica or an exact carbon copy. There are certain differences, as I am sure the Ministers accept.
The Minister of State will be aware of the research that was subsequently conducted by Professor Fraser in his investigation of the appropriateness of the retention periods in Scotland. I will come back to that point, because I know that that was an issue that came up on Second Reading and I also note that, in his letter of 2 February, the Home Secretary makes reference to that work as well.
It is doubtful that the Government’s proposals for DNA retention, as outlined in clause 14, comply with the European convention on human rights. In a written statement to the House last November, the Home Secretary acknowledged that the European Court in the S and Marper case had
“suggested that the seriousness of the alleged offence should be a factor in determining what length of retention was proportionate”.—[Official Report, 11 November 2009; Vol. 499, c. 26W.]
However, the Government have not taken that into account in relation to adults in their proposal. It is interesting that they appear to make a fundamental distinction for children, which is not reflected in their approach to adults. There is some inconsistency in the logic attached to the Government’s proposals. It is interesting to note that, and it will be interesting to hear the Minister say why those slightly different lines have been taken, with a blanket six-year retention for adults and slightly altered approaches for children and young people.
The Equality and Human Rights Commission has written to the Council of Europe arguing that the Government’s revised proposals do not comply with the Committee of Ministers’ recommendation R(92)1. What we can be clear on is that a system similar to that used in Scotland would be compliant—the Court stated that in the judgment on the S and Marper case. Although not perfect—it is a question of fine balances of judgment—we believe that an approach similar to that used in Scotland should be adopted in England and Wales.
Mr. Hanson: May I get to the nub of the argument? We now come to what this is really all about. If we could persuade the Committee of Ministers that six years was proportionate; if we had evidence that DNA collected and kept for between three and six years under that system could lead to convictions; and if, as our experience shows—I refer to the letter from the Home Secretary—23 victims of serious violence would have been denied justice if we had not adopted that model, why is the Conservative party not interested in bringing those criminals to justice, and in giving justice to the victims? What is the basis for that? I would really like to have that explanation, because that is the nub of the argument.
James Brokenshire: That is certainly one argument. We take seriously the issue of the use of DNA records and material, and the use of technology in bringing crimes to justice, as I have said. The Minister has highlighted a number of cases. In his letter to the Committee, he referred, fairly, to some cases where DNA has been used. They were serious cases and quite shocking in many regards, but the question is how the DNA technology fits in with other aspects of policing and evidence. What are the other facts and circumstances that may be appropriate?
The Minister highlighted the case of Abdirahman Ali Gudaal in support of that evidence. It was an appalling case. On 19 October 2008, a woman was dragged into a bedsit as she walked home from a night out and was repeatedly raped over a two-hour period. The DNA record was used as part of the prosecution’s case against this individual; that was right and proper. He had previously been arrested for robbery, and although he had not been charged, his DNA profile was taken. What the Minister did not mention was that the appalling attack took place in the rapist’s own home, and that the victim escaped from that bedsit, so there was other intelligence that might have led to someone being convicted of those crimes. We cannot look at the issue in isolation. There may be other relevant factors that would also have led to that conviction.
Tom Brake (Carshalton and Wallington) (LD): Another example that the Minister deployed is the case of Matthew Fagan, who, when sacked from his place of work, returned quite soon afterwards to burgle it. Does the hon. Member for Hornchurch agree that that is another case where the police might have been able to establish a connection, because that person was a disgruntled ex-employee and probably one of the first people whom they might have interviewed?
James Brokenshire: The hon. Gentleman makes a fair point about the interrelationship between other evidence, other more general policing issues and the data that might be available. [Interruption.] Before I give way to the Minister and my right hon. and learned Friend the Member for Sleaford and North Hykeham, I should like to refer to case study 5.
Mr. Hogg: One should be a bit cautious about all that. I have told the Committee about one case from my professional experience. I referred to the defendant as Mr. X. I am willing to give my hon. Friend and the Minister, if he wants, the name in private, but I do not want to embarrass the defendant by giving his name in Committee. That was a case where the rape was discovered exclusively through the DNA. When he came before the court there was some corroborative evidence, but he would never have come before the court had he not subsequently been arrested for attacking a taxi driver. His DNA was taken and was matched with samples that were 10 years old.
James Brokenshire: I absolutely agree with my right hon. and learned Friend about the retention of crime-scene DNA; it is absolutely right that that should happen. As our amendments show, we accept that DNA samples from people who have been arrested but not convicted of offences of a sexual or violent nature should be retained for a period. Even if the attack that he mentioned took place before the attack on the taxi driver, it would have been covered by our proposals, which would have assisted in the conviction.
That all comes down to balancing the rights of someone who has not been found guilty and so is, to all intents and purposes, innocent. It is a question of judgment where we draw the line. The Government have obviously not followed the Scottish model that has been in place for a few years. We would make some slight modifications to it, and that is reflected in the amendments. I look to the evidence and the backing in relation to support, reasonableness and the approach taken.
9.45 am
It is worth noting that, as I have mentioned, Professor Fraser looked at the situation in Scotland and made no recommendations for change. The Home Secretary said in his letter that he felt that that was not necessarily fair or reasonable, and questioned the approach. A letter from Lord Bach—the Parliamentary Under-Secretary of State, Ministry of Justice—to Lord Pannick confirmed that Professor Fraser
“did not uncover any evidence to suggest that this approach to retention has caused any detriment to the detection of serious crime in Scotland”.
However, the Home Secretary highlighted that
“That is to misunderstand this research which did not assess whether alternative systems would have been more effective”.
I checked the terms of reference of the inquiry, which stated that the inquiry should extend to cover experience elsewhere. I am not sure that it is right that there was no consideration of alternative systems in support of the broad Scottish model. The terms of reference stated that the inquiry was to take account of experience elsewhere.
Although I understand that the analysis undertaken by Professor Fraser may not support the Government’s case, it is still worth considering. It certainly does seem to take account of the relevant factors and the approach taken in Scotland since the introduction of the system there. Although the system in Scotland is not perfect, we believe in a similar approach, reflecting the relative merits of, and the balance between, individual freedoms. The general starting point is that people should not have their DNA record retained if they have not been convicted of an offence. In striking that balance and taking into consideration some of the individual cases that rightly need to be dealt with by DNA detection, a system based on the Scottish model is proportionate and reasonable. It will provide the levels of protection that the public would expect. The cases and examples that the Minister provided do not seem to question the approach that we are taking in the amendment, which appears to us to be appropriate and to strike the right balance.
Shona McIsaac (Cleethorpes) (Lab): I have been listening carefully to the hon. Gentleman’s arguments in relation to the Scottish model. However, is not the gaping hole in his argument the fact that in Scotland there are three possible verdicts: not guilty, not proven and guilty? Therefore, to make a direct comparison between “not guilty” in Scotland and “not guilty” in England is not to compare like with like.
James Brokenshire: The hon. Lady might have a point, were it not for the fact that even the hazard rate analysis, which we talked about, appears to suggest that a three-year period might be appropriate, justified and reasonable. It is appropriate to examine that. The hazard rate analysis says that the basic estimate was six years, which is the approach that the Government have taken. It states:
“However, most of the incremental offending risk of the NFA group is dissipated some time before this point, as indicated by the relative flatness of the hazard curve after, for example, three years. The shape of the hazard rate curve indicates how significant offending risk is in the years immediately following an initial arrest. This means that the choice of shorter retention periods is quite robust to the sensitivities introduced by these errors and assumptions.”
The analysis appears to say that three years may be a justifiable and supportable period in relation to that work. The Home Office itself accepts that, ultimately, it is a matter of judgment and that a three-year period could be regarded as within the scope of reasonableness, even on the basis of the hazard rate analysis.
Our judgment is that the proposals outlined in amendment 26 strike the right balance, unlike the Government’s proposals, which remain on the wrong side of the line, are not appropriate and do not reflect the basic starting point of innocence before the law unless guilt has been proven.
The Chairman: I call Mr. Hogg.
Mr. Hogg: I am sorry, Mr. Cook, but I was not expecting to speak.
The Chairman: The right hon. and learned Gentleman has tabled several amendments in this group, so I assumed that he was prepared to speak to them. If that is an embarrassment for the moment, I will call Mr. Brake.
Tom Brake: As the hon. Member for Hornchurch made clear in his speech, this group of amendments goes to the heart of the debate on DNA and its retention, and whether it is right to retain the DNA of innocent people. I must confess that the matter is controversial, even within the Liberal Democrats. Perhaps our party conference took a hard line by making a clear and simple distinction between people being on the database if they are convicted and off the database if they have been found innocent or if charges have not been pressed against them.
Interestingly, the Home Affairs Committee is currently conducting an inquiry into the DNA database, and the Minister was sitting in the Gallery when that Committee heard evidence from Sir Alec Jeffreys, who invented the techniques for DNA profiling 25 years ago. He made it clear that, had he known then that 25 years later he would be sitting in front of a Select Committee debating whether it was appropriate to have millions of people’s DNA retained on a database, very large numbers of whom are innocent of any crime, he would have been appalled. I perhaps expected him to say that he regretted ever having invented the techniques, but he said that they were significant and important for tackling crime and that he therefore had no regrets about it. He does, however, have significant regrets about how the techniques are being used.
Sir Alec also confirmed in evidence that the risk of mismatches or false matches for DNA will increase as the number of people on the database increases, and that it will increase significantly when the process of exchanging DNA at a European level starts, which he said is already happening. He confirmed that he was aware of some scientific analysis that showed that it is now quite easy to falsify DNA and place it at a crime scene, and a company called Nucleix Ltd has published reports on that. He was clear that for several reasons he regretted the Government’s decision and was much more comfortable with a position in which innocent peoples’ details were not kept on the database.
Dr. Brian Iddon (Bolton, South-East) (Lab): Professor Jeffreys, who invented the techniques, has referred to the number of markers that should be kept, and I think that it would be fair to put that on the record.
Tom Brake: Yes, we have discussed that matter in both this Committee and the Select Committee. As I understand it, in the UK we use 10 markers, but the Germans use five, hence the increased risk of false matches. Sir Alec wanted to highlight that issue for us, and I hope that when the Minister responds he will pick up on the ability to generate false DNA, because that is an area that we should be concerned about.
Shona McIsaac: Does the hon. Gentleman acknowledge that the police in this country have now confirmed that they will move to 15 points of comparison, which will make false matches less likely?
 
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