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Lord Thomas of Gresford: I am not persuaded. It may be that in only one in 100 cases what is in a person's property will be important. But it can arise in all sorts of ways—bloodstaining, DNA and fingerprints. It would be the easiest thing in the world for a defendant to say, "Well, it's not recorded what I had. This is a plant". On the other hand, it would be easy for a policeman to say, "Yes, that was there". The adjudicating authority, whether magistrates or a jury, will say, "Well, we have a policeman's word against that of the defendant. We believe the policeman". So this goes to issues of guilt or innocence and the liberty of the person.

I am not persuaded by the argument that it is embarrassing to have your handbag or your washbag searched. As an inveterate loser of nail scissors at airports I find it irritating but hardly embarrassing. It is a completely different situation in a police station.

Baroness Scotland of Asthal: Perhaps I should remind the noble Lord that what ladies have in their handbags quite often differs from what gentlemen have. Speaking as a member of the former sex rather than the latter, I can tell the Committee that it can be deeply embarrassing.

Lord Thomas of Gresford: I am silenced.

Lord Hunt of Wirral: I hesitate to intervene in the discussion about the contents of respective handbags, but I hope that the noble Baroness will think again. The right reverend Prelate made an important point. We are not persuaded, but we can see what the Minister is seeking to do and there may well be a way through. I do not want the Minister to think that she can come back and say, "Well, I have tried, but there is no better way than to sweep the provision away".

I have two suggestions. First, it would be possible to insert a "may" into Section 54 of the Police and Criminal Evidence Act so that it reads, "may record or cause to be recorded". Secondly, I hope that there will be an opportunity for an individual to request that a full record be made. That is important.

The Minister said that she will reconsider the matter. I hope that she will table amendments in her name when we reach the Report stage.

Clause 6 agreed to.

Clause 7 [Taking fingerprints without consent]:

Lord Thomas of Gresford moved Amendment No. 28:

The noble Lord said: Clauses 7 and 8 were introduced on Report in the Commons and have not been debated to any great degree. Clause 7 extends the circumstances in which the police may take a person's

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fingerprints without consent to include taking fingerprints from a person arrested for a recordable offence and detained in a police station.

It extends the current powers in Section 61 of PACE, which have limitations. Fingerprints can at present be taken from those in police detention without consent following charge with a recordable offence or notification that a suspect will be reported for such an offence; or, secondly, on the authority of an inspector, which can be given only where the officer has reasonable grounds for believing that the suspect is involved in a criminal offence and that the fingerprints will tend to confirm or disprove his involvement or facilitate the ascertainment of his identity. I emphasise that that is for the purposes of confirming or disproving his involvement in the offence of which he is suspected or of finding out who he is.

The new proposals make it possible for police officers to require fingerprints from a person without his consent merely on arrest. They do not require the authority of an inspector; nor are they limited to inquiries which tend to confirm or disprove his involvement in a particular matter for which he has been arrested. They are therefore a significant advance on Section 61 and we oppose them.

The amendment is limited. All we seek—we shall come back to the clause in much greater detail at a later time—is to retain the existing requirement of an officer of at least the rank of inspector must authorise the taking of the fingerprints from someone who is detained but not yet charged. We think that that safeguard must be maintained. It should not be right for an investigating officer of detective constable or police constable rank to require fingerprints in circumstances like these. Nor do we think that fingerprints should be retained indefinitely simply because a person has been arrested, even though no charge may follow. I beg to move.

10 p.m.

Lord Hunt of Wirral: I share the concerns expressed by the noble Lord, Lord Thomas of Gresford, with all his experience in these matters. I could not put it any better, but I would like to add to his analysis of the existing provisions of PACE. They have reached a very careful balance—a carefully articulated balance—between the perceived need for the police to have new powers and the provision of protection against abuse of those powers. It is very carefully balanced.

I think that a number of noble Lords find it difficult to sweep away those provisions in the way proposed by the Government. At a rather late stage in the Bill's progress, they are suddenly saying that there should be powers in Clause 7 to allow the police to take fingerprints from anyone who has been arrested for recordable offences without his or her consent, whether or not he is she is subsequently charged with any offence, and then to retain the fingerprints indefinitely.

The report of the Joint Committee on Human Rights, from which I quoted earlier, sets out very clear concerns about these powers which I share, and I

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support the noble Lord, Lord Thomas of Gresford. The Joint Committee reminds us of the ECHR provisions, particularly Articles 3 and 8. It is a worrying fact that although there was a dialogue between the Minister who attended and the committee, the committee stated very clearly in paragraph 54 of its report:

    "This leaves us significantly concerned about the risk that arrangements for managing the hugely increased volume of personal data which would become available through the operation of the proposed new powers would be inadequate to secure compliance with ECHR Article 8".

It goes on to deal with a very important point. There has been a steady increase in the number and scope of statutory provisions allowing data to be shared between agencies within and outside the United Kingdom for a wide range of investigative purposes. The Joint Committee draws attention to the risk that the databases might lawfully be put at the disposal of foreign investigators and intelligence agencies conducting speculative "fishing expeditions" in circumstances in which the law governing the work of the foreign agency requesting information offers little or no protection for privacy-related rights in respect of personal data held by public authorities. The Joint Committee also draws attention to the lack of clarity in the allocation of legal responsibility for securing compliance with Convention rights.

The Minister will be aware that there are negotiations relating to the draft agreements between the European Union and the United States of America, including a draft agreement on mutual legal assistance, which would lead to the establishment of joint European Union/USA investigative teams. However, this represents the worrying prospect that Article 9 of the draft agreement would prevent the United Kingdom or any European Union member state from refusing to provide information to USA investigators on account of the lack of effective protection in the USA for privacy-related rights in respect of personal data.

I hope that the Minister will understand that it is right for us to challenge the Government on the need for the clause. One is entitled to ask, if there is such a need, why the clause was not put in the Bill in the first place. I know that there has been police pressure for that sort of power, but the danger is that the police could charge a person just to be able to get their fingerprints and try to match them at will to the database to see if they can clear up crimes. Those are the sorts of worries that could arise in profusion.

There are two principles here: first, the propriety of taking fingerprints from someone who has been arrested but not charged and, secondly, the decision to add that information to a database. Those are worrying aspects, and I join the noble Lord, Lord Thomas of Gresford, in seeking to challenge the Government to justify that quite considerable extension of police powers.

Baroness Scotland of Asthal: I should say immediately that, although I hear what the noble Lord says about the Joint Committee on Human Rights, it

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accepted that there was no breach of Article 3 in relation to the provisions. To that extent, the committee accepts that they are sound.

It might be helpful if I explored a little more fully how the clause was justified. The Government's proposed amendment to Section 61 of the Police and Criminal Evidence Act 1984 will, as the noble Lord, Lord Hunt, said, allow the police to take fingerprints from a person arrested for a recordable offence and detained at a police station as a matter of routine. We accept that that is a departure, but we argue that it is an important issue that may materially affect the police's ability to identify the correct defendant for the correct charge. It can be used to release people as much as to detain them, if people are identified as having participated improperly in criminal activity.

It is important for the police to be able to do that quickly in order to prevent persons evading justice by giving the police a false identity, and also for the police to be aware of anyone who may pose a risk to themselves or others. The proposed amendment would introduce an unnecessary layer of bureaucracy and possibly inhibit the police from being able to ascertain quickly who it is they are dealing with.

The Government's proposed amendment to Section 63 of PACE will allow the police to take a sample of DNA from a person arrested for a recordable offence and detained at a police station as a matter of routine. The profile obtained from the sample can then be searched against the national DNA database to see whether it matches that from a crime scene. That will potentially allow for more crimes to be resolved and at an earlier stage. Imposing a restriction whereby the taking of the sample has to be authorised by an inspector or above would introduce an unnecessary level of bureaucracy.

The clause will give the police a discretionary power, which they would be able to exercise in the appropriate case. At the moment the Police and Criminal Evidence Act 1984 governs that. Under PACE, the police may take fingerprints from all those charged with, informed they will be reported for, or convicted of a recordable offence. The police may also take fingerprints from those suspected of a criminal offence where there are reasonable grounds for believing that the fingerprints will tend to confirm or disprove the suspect's involvement.

The police may also take a person's fingerprints to facilitate the ascertainment of a suspect's identity. I am sure that noble Lords will recall many very distressing cases in which individuals subsequently found guilty of some of the most heinous offences—I am thinking particularly of some of the most notorious rape cases—were identified at an early stage but DNA or fingerprint samples were not taken from them and retained. Had that happened, the police might have been able much earlier to identify the perpetrator of those murders/rapes and to prevent ensuing tragedy.

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One need only think of the Ripper who was identified and questioned on a number of occasions in relation to a number of his victims. On each occasion he was let go. In such cases it would be of great assistance if this sort of DNA and fingerprint sampling were available to the police. It would assist in identifying those people at an earlier stage.

It is very easy to discuss these issues as if we were discussing semantics. We are not discussing semantics. We are talking about the ability to identify those who commit identifiable crimes and who can properly be brought to book by means of the independent DNA and fingerprinting evidence that is available to us now as it has not been available to us historically.

The current framework means that the police may miss the opportunity to establish a detained person's true identity if that person lies about who they are and the police have no reason to believe that they have done so. That may inevitably result in criminals, some of them guilty of serious offences, not being identified when they come into custody for other matters. The problem presents itself even more acutely now that we have technology that can check a fingerprint against national records during the time that a detained person can reasonably expect to be in custody.

A number of police officers tell us that, now that accused persons know that their identity could be ascertained early in the process by means of fingerprints, many of them quickly decide that it is not worth the candle and own up to who they are, thereby saving a great deal of time and trouble. Those who chance their arm, to put it colloquially, are identified more easily and more quickly.

This clause will enable those who seek to evade justice by assuming a false identity to be properly identified and dealt with through the due process of law. It may in addition also reveal, by markers on the police national computer, if they are a danger to themselves or others. I stress that they could be a danger to themselves. When people do not give their correct identity, it is sometimes impossible for police to recognise that they are, for example, a suicide risk. They are not given proper supervision. They are treated like an ordinary arrested person, put in a cell and left on their own. The police have no idea that they are susceptible and something untoward may occur which could have been prevented if they had been properly identified.

The power can therefore be helpful not only to the police in detecting crime but occasionally also to the accused, particularly if they require medication or an appropriate adult to be present if they suffer from any form of vulnerability that may be known in the system but not disclosed. I see the noble Baroness, Lady Walmsley, in her place. I think that she knows only too well what happens with those who suffer from mental difficulties. They are quite often the last to identify themselves as vulnerable and sometimes the appropriate steps are not taken to help them.

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Broadening powers to take fingerprints pre-charge has civil liberties implications, as the noble Lord, Lord Thomas of Gresford, said. There may also be concerns about building larger databases of fingerprints, particularly where it relates to people who have not been proceeded against for an offence. While I recognise all those concerns, we have concluded that any intrusion on personal liberty is proportionate to the benefits in detecting crime and protecting the public against criminals.

In coming to the conclusion that the new powers are compatible with our human rights obligations, we have noted in particular that: the power is discretionary; and that the Divisional Court and Court of Appeal, in the case of R (S & Marper) v Chief Constable of South Yorkshire, agreed with the Government that a balancing exercise involving the rights of an individual, victims of crime and society must be carried out when assessing whether powers are proportionate. The individual's rights are not automatically the most important.

I understand the sensitivity involved, but when one has to balance that against the need to identify the perpetrators of crime, the Government argue that we must come down on the side of the proper detection of crime in this instance. Anyone who has behaved properly and has not become involved in inappropriate and improper criminal activity has nothing to fear from his fingerprints being retained, but it is very difficult indeed to explain to the family of a murder victim or to a victim of rape or of an avoidable offence that we had the technology and ability to identify the individuals concerned, but we let them pass us by.

Using available DNA, fingerprints and sophisticated technology, the police have cleared up a number of offences, particularly in relation to rape. Those offences have been attributed to people currently serving terms of imprisonment for similar or other offences. I hope that the Committee will think that that is a proper and just thing for us to seek to do.

10.15 p.m.

Lord Thomas of Gresford: It is always dangerous to refer to other cases. The case of R (S & Marper) v Chief Constable of South Yorkshire was a case in which it was held that there was an infringement of Article 8.1 of the European Convention on Human Rights. I do not suppose that we have heard the end of that. Certainly the Court of Appeal held that the retention of such samples where no prosecution followed was legitimate, but I am sure that will be challenged.

As regards the Ripper case, I do not recall the Ripper being arrested. His name may have come up on a database or on a search. Certainly that happened with the Cannock Chase murders, where the name of the ultimate accused came up on three separate databases or searches but there was never any cross-checking, which would have revealed that he was the only person who appeared on all three types of search.

The noble Baroness said that the clause removes an unnecessary layer of bureaucracy; that is to say, simply the inspector authorising the taking of the fingerprints

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as opposed to anyone else. I do not regard that as an unnecessary layer of bureaucracy. The measure introduces an element of authoritarianism. The argument that you have nothing to fear if you have done nothing is always trotted out to support authoritarian measures of that kind. The noble Baroness told us that it is a discretionary power. The discretion exists at the moment but it exists to be exercised by an inspector of police. Now it is proposed that that discretion should be exercised by the man who "nicked" the offender—the detective constable or the police officer. It seems to me that a person with greater authority than the person who does the arresting should be brought into play in order to exercise that discretion. I have no doubt that we shall come back to the issue and to that of DNA, which we are about to discuss, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

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