Joint Committee on Human Rights Minutes of Evidence

1. Letter from Lord Falconer, Minister of State, Home Office, to the Chairman


  I am writing to give you advance sight of an amendment we are tabling tomorrow for consideration at the Report stage of the Criminal Justice Bill and which is intended to extend police powers to enable them to take fingerprints and/or a DNA sample from any person arrested for a recordable offence and detained at a police station.

Where fingerprints can be taken electronically, and that individual's fingerprints are already held on the NAFIS, it will enable the police to confirm his identity whilst he is in police detention. This would prevent those persons who seek to evade justice through assuming a false identity to be properly identified and, for instance, reveal if they were wanted on a warrant or for questioning, whether they posed a threat through violent warning signals, or needed medical care, an appropriate adult or may attempt to harm themselves. This information would also enable the appropriate treatment and environment to be provided to the detained person to reduce risks to themselves and those dealing with them.

  The amendment will also allow for more fingerprints and DNA profiles to be loaded onto the national databases which will help in the detection and prevention of crime. The DNA profile would be subject to a speculative search on the National DNA Database to see whether it matches a crime scene stain and fingerprints would also be checked against the fingerprint database in the same way.

  The Government believes that these measures will be an important additional tool in the fight against crime. Nevertheless, the Government also recognises that broadening police powers pre-charge has significant civil liberties implications. There may also be some concerns about building larger databases of DNA information, particularly where it relates to people who have not, and may not, be proceeded against for an offence. Whilst I recognise all of these concerns, I would also ask you to accept that any intrusion on personal privacy is propertionate to the benefits in terms of the preventon and detection of crime.

  The issue of proportionality and discrimination in respect of the retention of fingerprints and DNA samples by the police of persons who have not been convicted of any offence has been tested in the Court of Appeal in the case of R v Chief Constable of South Yorkshire (ex parte S and Marper). S was a minor who was acquitted of a charge of robbery and charges against Mr Marper were not proceeded with. Both had had their fingerprints and a DNA sample taken from them when they were charged and each asked the Chief Constable of South Yorkshire to destroy them when the proceedings against them were finished. The Chief Constable however decided to retain them as he is premitted to do under amendments to section 64 of the Police and Criminal Evidence Act 1984 made by Section 82 of the Criminal Justice and Police Act 2001. The Chief Constable's decision was challenged by way of judicial review under Article 8 (right to privacy) and Article 14 (right of non-discrimination) of the ECHR. The Court of Appeal found that whilst there was some minimal interference with Article 8(1) the interference was justified under Article 8(2). The Court also rejected the applicant's submission that they had been treated in a discriminatory manner. You will recall that your Committee originally expressed doubts about those provisions of the 2001 Act but eventually concluded that the provisions were compatible with the ECHR.

  The Government believes that the Court of Appeal's decision in the S and Marper case supports its belief that the broadening of police powers now proposed does not amount to a breach of the Human Rights Act 1998. For completeness I should note that the case will go to the House of Lords later this year.

  I hope that your Committee will feel able to support these important clauses.

25 March 2003

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