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Lord Elton: Perhaps the noble Baroness will explain the arguments that she has just advanced that the retention of fingerprints and so on of people who are not guilty of other crimes can somehow prevent them being wrongly brought before the courts and convicted of future crimes. Surely the time to take that evidence is at the time of arrest.

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Baroness Scotland of Asthal: I can answer the noble Lord, Lord Elton, straightaway. However, after I have answered his point, perhaps noble Lords would allow me to answer the main import of the amendment tabled by the noble Lord, Lord Dholakia.

In answer to the noble Lord, Lord Elton, an individual may be under suspicion for a particular offence but data on the database may be capable of being compared with DNA samples taken from the crime scene. That comparative study may be able to exclude that person from the investigation so that the police never have to pursue him or her further and they can go on to consider others. That is when it becomes a great utility. There are occasions when, for various circumstantial reasons, the police may alight upon a certain individual who appears to have all the necessary components to indicate that he or she may have been involved but they can be excluded. That is why I say that it can have a beneficial effect at an early stage.

It is important that the police are able to retain all information assembled during the investigation of an offence, not least to enable them to investigate a possible miscarriage of justice in the future, as I have already indicated. The police are already able to retain other information gathered as part of the investigation, such as witness statements, photographs, and so on, and we would say that samples and fingerprints are really no different.

Furthermore, if the fingerprints and DNA samples are retained they will be available to the police in the event of that person committing an offence in the future. Law-abiding citizens have nothing to fear from their fingerprints or DNA being retained as they may be used only for the prevention or detection of crime, the investigation of an offence or the prosecution of an offence.

In the year following the amendments to PACE made by the Criminal Justice and Police Act 2001 which removed the requirement to destroy the fingerprints/DNA of persons who were acquitted, approximately 400 offences were detected involving some 300 offenders using DNA profiles that would previously have fallen to be removed from the database. Those included three attempted murders, four rapes and a number of aggravated burglaries and serious assaults.

In resisting the proposed amendment, I would like if I may, to take noble Lords back to the cases that gave rise to the amendments to the Police and Criminal Evidence Act 1984, contained in the Criminal Justice and Police Act 2001 which allowed police the discretion to keep the DNA samples of people who were acquitted or against whom charges were dropped.

The implications of the requirement on the police to destroy DNA samples in those circumstances were brought into focus in the most acute way by two cases heard together in the Court of Appeal: R v B and R v Weir. In those cases compelling DNA evidence linked the accused to two particularly bad brutal attacks on elderly people in their homes, one resulting in rape

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and the other in murder. In both cases a match was made between samples taken at the crime scene and DNA profiles on the database. However, those profiles were derived from samples that were taken in relation to offences of which the two accused had been acquitted. They therefore fell to be destroyed under the terms of Section 64 of PACE as it then was. New samples were taken as a result of the link made and it was those new samples that were adduced in evidence.

Nevertheless, the Court of Appeal concluded that the matches had been used in the investigation of the subsequent offences contrary to the prohibition in Section 64; that the trial judge had no discretion to admit the evidence and that, therefore, neither man could be convicted. As the Court of Appeal said:

    "It would have been perfectly possible for Parliament to conclude that the fight against crime was so important that there should be no restriction on the use of DNA samples so that where such samples were lawfully obtained by the police the information derived from them could be retained on a database for all purposes. Whether in the light of these two cases and the repercussions in relation to other cases, the authorities or Parliament wish to revisit Section 64 of PACE is not a matter for this Court of Appeal but there can be no doubt as to the seriousness of the consequences".

The House of Lords' decision in R v B when it reached them on appeal took a rather different approach to that of the Court of Appeal. The House of Lords decided that the trial judge had discretion to admit the DNA evidence, even though it derived from a sample that ought to have been, but had not been, destroyed. The Government welcomed that decision which at least meant that where compelling evidence was available the courts were not forced to ignore it. Nevertheless, the law was left in what was, in the Government's view, an unsatisfactory state, hence the need for reform. The court might be able to look at evidence if it so happened that the relevant police force had not yet caused the profile to be removed from the database, but that would depend on a combination of chance and police efficiency.

Those two cases demonstrate in the most chilling way, the danger that lies beneath the proposed amendment. The Government at the time realised that and this is what led to the decision to remove the requirement that such samples be destroyed and not used in subsequent investigations. The Government also accepted at the time of course that the retention and use of fingerprints and samples from those who have been acquitted raised potential issues under article 8 of the ECHR, but they did not believe that article 8 required the destruction of potentially vital objective evidence.

As I have already said, we do not expect the police to destroy all interview notes or documentation relating to previous investigations, whether or not they lead to a conviction. It is accepted that information may well be relevant to subsequent investigations. Information derived from DNA samples is one of the most objective and conclusive forms of establishing involvement in a crime or, equally important, disproving involvement. We do not believe that the police should be under a duty to throw it away. The police are not given carte blanche to do with such

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samples as they will and Section 64 of PACE makes it clear that DNA samples and fingerprints can be used only for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.

We heard in our earlier debate reference to a challenge to the current provisions of Section 64 of PACE in the Court of Appeal in the case of R v Chief Constable of South Yorkshire (ex parte S and Marper.), to which the noble Lord, Lord Dholakia, referred. Those two appellants argued that the chief constable's decision to retain their fingerprints/DNA, notwithstanding that one of them was acquitted and the charge against the other was not proceeded with, was a breach of the ECHR. The appellants had claimed that the chief constable's decision was in breach of Article 8—the right to privacy—and Article 14—the right to non-discrimination.

As the noble Lord, Lord Thomas of Gresford, reminded your Lordships in our earlier debate, the Court of Appeal found that in those cases there was some interference with Article 8(1). However, the court also went on to find that under Article 8(2) the interference was proportional and justified. Furthermore there was no interference with Article 14. The appellants have appealed against the decision and the appeal will be heard before this House probably later this year.

I hope I have made it clear that if fingerprints and DNA samples are retained they will be available to the police in the event of the person committing an offence in the future. Law-abiding citizens have nothing to fear from this; it does not impugn their integrity or leave a stain on their character where this is perfectly normal and in the interests of detecting crime and protecting the rights of victims it is clearly desirable that the police should have every possible technological or scientific aid available to them to enable them to do so.

It is also important that the police are able to retain all the information assembled during the investigation of an offence not least to enable them to investigate a possible miscarriage of justice in the future. DNA profiles are useful, objective forms of evidence that can be used to indicate guilt or—and we must not forget this—help to establish innocence.

The noble Lord, Lord Dholakia, asked what we should do if other agencies wish to go on fishing exercises and use such samples improperly—an issue touched on also by the noble Baroness, Lady Harris. As your Lordships will remember, we dealt with that matter in part in our topical Question last week. I am happy to reiterate that opportunities for the database to be used in such a way are non-existent. The JCHR was concerned that the data might be placed at the disposal of foreign investigators and intelligence agencies conducting such fishing exercises in circumstances where the law governing the work of a foreign agency requesting the information offered little or no protection for privacy-related rights in relation to personal data held by public authorities.

There are in fact strict protocols set by Interpol for the provision of information from the national DNA database to foreign law enforcement agencies, which

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allow information to be provided to EU members but otherwise restrict the provision of information to countries with good human rights records. DNA profiles and personal identification data associated with them are held by both the laboratories that analyse the samples sent to them and the custodian. They are subject to the provisions of the Data Protection Act 1998. Their databases are registered with the information commissioner and personal data are kept securely. It is accessed only on the authorisation of designated personnel. Therefore, I hope that I have reassured noble Lords that any fear that this information may be used improperly is ungrounded.

The noble Lord, Lord Brittan, asked why people who are arrested are treated differently from the population at large. The objective difference is the fact that there has been an arrest and therefore they have come into contact with the criminal justice system, so information is obtained. We should make it clear that that is not only in relation to that person; and it is a matter that noble Lords should consider. Such information has been used to identify those who may be within the same family.

I shall give your Lordships an example. A serious offence of murder was committed. An incomplete profile was obtained from the DNA evidence available at the scene of the crime. It was not possible to identify the perpetrator from the information held on the database, but it was possible to identify a person in the perpetrator's family, because the DNA indicated similarities. From using the data available from the family member of the perpetrator it was possible thereafter to identify the perpetrator. Your Lordships should not underestimate how powerful such evidence can be.

Some noble Lords, including the noble Lord, Lord Dholakia, asked about mass screenings where people are given the option of having their sample added to the national database. Their consent is important and must be given in writing. We think there is a difference in terms of opportunity and ability. People come forward and offer themselves up for mass screenings, which we need to continue to encourage. But it is different to say that we should give up the information we have culled from an investigation because it may be used in other cases.

Your Lordships should also know that in many cases where individuals have not been charged or they have been acquitted of offences, subsequently it has been discovered when they were arrested for another offence—sometimes of a fairly minor nature—and their DNA was obtained, that they were in fact guilty of some very serious offences. There is one example where an individual was arrested in relation to a shoplifting case involving a mere 10. Thirty years previously, that individual had committed some serious sexual offences, and was able to be identified. So we have some powerful evidence that can be put to good use.

There are now approximately 2 million DNA profiles on the database—as the noble Baroness, Lady Harris, said—and approximately 180,000 crime scene samples.

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Since its launch, the database has matched over 170,000 suspects to previously unidentified DNA found at crime scenes. About 4,000 matches per month are found between the profiles of individuals and those from scenes of crime, and if a biological sample is taken from a scene of crime there is a 42 per cent chance of finding a matching profile from an individual on the database. As the number of profiles on the database increases so will the chances of identifying the individual whose DNA was found at the crime scene. In practical terms, the proposed new power in respect of fingerprints will probably be used most frequently to confirm the identity of an individual where it is in doubt rather than to check against a particular crime stain or stains. To that end, it may often be that individuals are already on the database under an alias or alternative name. One can see the huge value to which that information will be put.

Of course it is accepted that police powers to retain DNA samples and profiles of persons who have been acquitted or against whom charges have been dropped raises concerns about intrusion into personal liberty. I recognise absolutely why the noble Lord, Lord Alexander, and others raise the issue. Many of those concerns were debated in relation to Clause 7. Some people may be concerned about the building of larger databases, particularly where it relates to people who have not been proceeded against for an offence. That was the point made by the noble, Lord Brittan.

It can therefore be argued that any intrusion on personal privacy is both necessary and proportionate to the benefits for victims of crime and society generally in detecting crime and protecting the public against criminals. There are many examples of persons who have been acquitted of one offence, or have had a charge against them dropped, who subsequently commit other offences. It does not therefore stigmatise someone not convicted of any offence if it is the norm to retain fingerprints/DNA that have been lawfully obtained.

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