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3.7 p.m.

Lord Grocott: My Lords, with the leave of the House, at a convenient time after 3.30 p.m., my noble friend Lady Symons will repeat in the form of a Statement the Answer given in another place by the Foreign Secretary to an urgent Question on the imprisonment and trial of two UK nationals at Guantanamo Bay.

Dealing in Cultural Objects (Offences) Bill

Brought from the Commons; read a first time, and ordered to be printed.

Legal Deposit Libraries Bill

Brought from the Commons; read a first time, and ordered to be printed.

Sustainable Energy Bill

Brought from the Commons; read a first time, and ordered to be printed.

Marine Safety Bill

Read a third time, and passed.

Criminal Justice Bill

3.9 p.m.

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.


Lord Dholakia moved Amendment No. 31:

(1) Section 64 of the 1984 Act (destruction of fingerprints and samples) is amended as follows.
(2) In subsection (3) the words ", except as provided in the following provisions of this section," are omitted.
(3) Subsections (3AA), (3AB) and (3AC) are omitted."

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The noble Lord said: The amendment relates to the further extension of circumstances in which the police may take non-intimate samples from a person in police detention. That includes taking such a sample from a person arrested for a recordable offence. Such samples can be taken without the consent of the individual. It only requires the authorisation of an inspector. The new power is available whether or not the sample is required for the investigation of an offence in which the person is suspected of being involved.

One of the powers being given to the police is that DNA profiles extracted from arrested persons will be added to the DNA database and checked for matches with DNA taken from crime scenes. We have no difficulty in accepting that the action proposed is minor and that the process will benefit crime detection and help to protect the general public from criminality. At the heart of the debate is the argument, advanced by Justice, as to whether it is appropriate or necessary in a democratic society to permit the state to obtain and retain information from innocent persons. If the database is not considered appropriate, then there is no logic in allowing the police to retain such samples or profiles.

The public is always happy to co-operate on cases where DNA is sought from a large number of people to assist in solving heinous crimes. However, if it were generally known that people who are not proceeded against or are found innocent in court might have the samples and profiles retained, ordinary members of the public would find it difficult to co-operate in establishing a national, perhaps international, database, on which they had no say whatever. I draw the attention of the House to the report of the Joint Committee on Human Rights. It says:

    "We draw the attention of each House to the risk that the database might lawfully be put at the disposal of foreign investigators and intelligence agencies conducting speculative 'fishing expeditions' in circumstances where the law governing the work of the foreign agency requesting information offers little or no protection for privacy-related rights in relation to personal data held by public authorities. We also draw attention to the lack of clarity in the allocation of legal responsibility for securing compliance with Convention rights".

The number of profiles now being held total over 2 million. We could be adding another 300,000 arrestees a year to that number. We do not oppose samples being taken to determine whether or not a charge should be made. That is in the interests of the individual if he or she is innocent. We object to the proposal that this should be routine or on a continuous basis, irrespective of the charge being levelled.

Our amendment is designed to amend the Police and Criminal Evidence Act to take out the sections that allow fingerprint and DNA samples to be retained. We want to ensure the destruction of samples taken from detainees who are subsequently not charged. We have an important safeguard where courts should be the ultimate authority to determine if such samples should be kept. I am aware of the judgment of the Appeal Court in the case of S and Michael Marper against the Chief Constable of South Yorkshire. But we are now talking of the indiscriminate storing of samples and profiles. Surely the correct course of action, when the

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whole question of rights and liberties are infringed, is for the court to determine in each case whether the sample or profile should be retained.

We do this in relation to most matters in which police have to seek an order to retain or destroy material. DNA fingerprinting should not be an exception. Can the Minister tell me whether individuals would have the right to demand to see what use was being made of the samples? Would they be told if the information was being shared with international police forces? Who will be responsible for the protection of information on the database? I beg to move.

3.15 p.m.

Baroness Harris of Richmond: A short debate took place on Clauses 7 and 8 last week dealing with the taking of fingerprints and DNA samples without consent when someone has been arrested for an offence, even if subsequently they are not charged. I do not seek to reopen that debate, but it is interesting to read Hansard at those points and see how your Lordships stressed the careful balance which the present Section 61 of PACE enjoys, and the concerns expressed at the proposals within Clauses 7 and 8 of the Bill.

The taking of fingerprints and samples may well be necessary in many circumstances, but there is significant concern about the necessity to retain that data indefinitely—and I quote the noble Lord, Lord Carlisle of Bucklow. He said:

    "I am worried about those whose fingerprints are taken in the course of examination and who are not proceeded against or are acquitted. Their fingerprints are retained but we do not have general fingerprinting for all people. Surely there is an issue here".

The noble Baroness, Lady Scotland, the Minister, replied:

    "I accept that that is an issue. I say that is an issue about balance and proportionality. That is a debate that we should have because the Committee will know that the Government's view, particularly in relation to the most serious offences, is that the risk to the public is so great that it is worth balancing it in their favour, as opposed to destroying information which may subsequently have proved to be vital and could have assisted in the identification of crime. It is a real issue and I do not seek to pretend otherwise. It is a question of where we draw that dividing line".—[Official Report, 30/6/03; col. 714.]

So it seems that the Minister accepts that this is an area which needs further consideration and I hope that she will reassure us that that is indeed the case.

The Joint Committee on Human Rights also expressed concern about the data implications of the two clauses. I shall quote from paragraph 53 of its report, in which it concludes,

    "it is not clear to us who would be legally accountable if an error on the part of any of those parties, or of one of the laboratories submitting samples of analyses for inclusion on the database, or of one of the operatives entering the data or processing them, led to an unjustified interference with a data subject's right to respect for private life under ECHR Article 8. In short, who would be the appropriate defendant in an action by an aggrieved data subject claiming to be the victims of a violation of his or her right under ECHR Article 8?"

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The noble Lord, Lord Hunt of Wirral, also quoted from that report in Hansard on 30th June at col. 708, which clearly identified the Joint Committee's unease about data retention.

We agree. There is simply not enough clarity yet in areas of responsibility for collection and retention of highly sensitive and personal data—especially if the person from whom that data is taken is never charged with an offence. There was no debate on this in the other place at the time that the Government introduced the proposals at Report stage, and it seems to us that what is proposed will add huge numbers to an already staggeringly large database—I understand that there are already 2 million samples included on it—and the concern of these Benches is that the taking of these fingerprints or DNA samples should not become routine, nor should it be a way to build up the number of profiles held on the DNA database.

I shall make one final quotation, this time from my honourable friend in another place, Simon Hughes. He said:

    "This is another step on the road to holding every citizen's DNA on the national database, and it is being done with virtually no public debate. Thousands of people are arrested every year who are guilty of no crime. Their fingerprints and DNA may now be recorded and held, even if they withhold their consent".

That is our real concern. Some data will need retaining. Much more will not, and this new clause seeks, as my noble friend Lord Dholakia said, to reintroduce the ability to destroy fingerprints and samples of those who have not been charged.

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