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Baroness Harris of Richmond moved Amendment No. 11A:

The noble Baroness said: My Lords, in moving Amendment No. 11A, I shall speak also to Amendments Nos. 11B and 11C. I am disappointed that the Government have not seen fit to address the concerns we expressed in Committee about this part of the Bill. These amendments are therefore by way of a compromise and I urge the Minister to support them.

I shall speak first to Amendments Nos. 11A and 11C. Section 54 of PACE would be amended in such a way as to remove the requirement that a detainee's property be recorded. We feel that perhaps this goes too far, so we are proposing that the custody officer simply "may" record the property of someone who is detained.

However, our Amendment No. 11B states that if a detainee requests that his or her property be recorded, as it is now, the custody officer must comply with that request. That amendment covers everyone against any accusation of loss of property or the planting of evidence and ensures that the state upholds its obligations to maintain the safety of someone's property when he or she is in custody.

In order to reduce bureaucracy, which is the main plank of the police's argument, there are now sophisticated recording procedures which would take a nanosecond to use and which would certainly stop the laborious use of every piece of property being recorded manually. Digital photography could also be used as a way of ensuring that property is thoroughly recorded.

Therefore, I believe that the argument about bureaucracy is wearing a little thin. Our amendments seek to put the onus on the person who is detained to request his or her property to be recorded, should he or she wish that to happen. I beg to move.

Baroness Anelay of St Johns: My Lords, briefly, I fully support the amendments. They meet the objective of my noble friend Lord Hunt, which he set out in Committee.

Baroness Scotland of Asthal: My Lords, I believe that the intention of Amendments Nos. 11A and 11B, spoken to by the noble Baroness, Lady Harris, is to clarify that the custody officer should retain the legal capacity to record whatever property a detained person brings into custody and to make any such records in the detained person's custody record.

We believe that, in principle, there is force in what the noble Baroness said in relation to the first two amendments. However, we are a little concerned about

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the wording of Amendment No. 11A. As currently worded, it would effectively remove the absolute obligation on the custody officer to ascertain what a detained person has with him, but I do not believe that that is what any of us on either side of the House wants to achieve.

Allowing for that and for the close relationship between the two amendments, I hope that the noble Baronesses, Lady Harris and Lady Anelay, will be satisfied with an undertaking from me to bring forward amendments at Third Reading to achieve the clear intention of what each of us appears to be proposing today.

However, Amendment No. 11C appears to be intended to oblige the custody officer to make a record of property when requested to do so by the detained person. The guidance that we are drafting in relation to this clause will make it very clear that any reasonable request to record property should be complied with if it is practicable to do so. Imposing an absolute requirement to comply with requests would, we respectfully suggest, not be helpful as it would open the door to deliberately obstructive requests for excessive and time-consuming recording which are not fully justified by the circumstances.

On that basis, I hope that noble Lords will understand why we are not minded to accept Amendment No. 11C. However, we hope to deal with that matter in guidance to everyone's satisfaction.

Baroness Harris of Richmond: My Lords, I am very grateful to the Minister. I heard what she said about guidance and "any reasonable request". We have been along this road before. I very much look forward to seeing what she brings forward at Third Reading. In the mean time, I shall not press the matter to a vote and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11B and 11C not moved.]

Clause 8 [Taking fingerprints without consent]:

Baroness Harris of Richmond moved Amendment No. 12:

    Page 6, line 17, after "offence" insert "and an officer of at least the rank of inspector authorises them to be taken"

The noble Baroness said: My Lords, in moving Amendment No. 12, I shall speak also to Amendments Nos. 13 and 14. The amendments cover Clauses 8 and 9 and are grouped together.

Amendment No. 12 seeks to insert a requirement that an officer of at least the rank of inspector authorises the taking of fingerprints without the consent of the detainee. Taking fingerprints without consent can still be construed as interfering with a person's liberty, and the use of those powers must be carefully monitored. Therefore, it would be far preferable for a manager of some seniority to take that responsibility. I maintain that fingerprints constitute personal data and, as such, must be treated with safeguards. The taking of them should be authorised by someone who is clearly accountable and has a thorough knowledge and experience of the law.

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In Clause 9, again, we simply seek to insert a requirement for a person of at least the rank of inspector to authorise the taking of—this time—non-intimate samples without consent. Proposed new subsection (2D) is a simple insertion of that requirement. For these Benches, the taking of non-intimate samples without consent is even more problematic than the taking of fingerprints without consent. At present, only samples from those who are charged may be taken without consent. It is a slippery path indeed to take samples from just anyone who happens to have been arrested but before he has been charged with an offence.

Notwithstanding what the Minister said earlier in her explanation on Amendment No. 1 at the beginning of this afternoon's debate on Report, it seems to me that the Government are beginning to build a database on which people's DNA will be kept and that they are doing so by stealth. No proper debate has ever taken place about the taking of non-intimate samples. Indeed, the Government's own advisory body—the Human Genetics Commission—recommended in May 2002 that the Government should promote a greater degree of dialogue about the justification for the apparent increase in the range of offences for which DNA samples may be taken. It also recommended, among other things, which bodies should oversee the work of a national DNA database.

Therefore, even the Government's advisers are cautious about the burgeoning numbers of people who could conceivably be added to the database. It is a very worrying matter, and I hope that the Government will consider the amendments carefully. I beg to move.

Lord Clinton-Davis: My Lords, we are dealing here with the taking of fingerprints. My experience as an advocate goes back to the 1980s. In my view, an inspector will not always be available. At present, we devolve quite a lot of power to a police officer—usually a sergeant, but it may be a police constable—to undertake rather essential practices. There is nothing magical whatever about an inspector doing that work, particularly in relation to fingerprints; nor is it consonant with present practice. I consider myself, together with a number of other Peers, to be a custodian of civil liberties, but I have never heard anyone criticise the present procedures.

We must bear in mind that an inspector may not be on duty but that, invariably, a person will be on duty who has much experience in that regard. I believe that the amendment is misconceived on two grounds: first, it is not consonant with current practice; and, secondly, it never will be.

Baroness Anelay of St Johns: My Lords, I support the amendments. We share the concerns expressed by the noble Baroness, Lady Harris of Richmond. Of course, there is a careful balance in the existing provisions of PACE between the perceived need for the police to have new powers and the need for protection against an abuse of those powers. The noble Lord, Lord Clinton-Davis, challenges us, as supporters of the amendments, by saying, "Well, it's okay now so why mess around with it

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when it is working?" Of course, the point is that here the Government are proposing a considerable extension of powers into realms where the police have never been able to exercise them. I shall give way to the noble Lord if he wishes to ask a question.

Lord Clinton-Davis: My Lords, that is the case only in relation to one thing: the taking of fingerprints.

Baroness Anelay of St Johns: My Lords, as we have already heard from the right reverend Prelate the Bishop of Worcester, the Bill adds by increments to the assaults on liberties. This is one such step. I remind the House that the Joint Committee on Human Rights set out a clear statement of concern about the powers that we are debating. Paragraph 54 of its 11th report states:

    "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".

There are two principles here: the propriety of taking fingerprints from a person who has been arrested but not charged and the decision to add that information to a database. I remain convinced that I am right to support the noble Baroness, Lady Harris of Richmond, in challenging the Government to justify this extension of police powers. The Government were unable to convince us in Committee, reported in Hansard of 30th June 2003 at cols. 709 to 711. Since then there has been time for the Government to consider and rally their arguments. I shall be interested to see if the Minister is able to be more persuasive today.

6.30 p.m.

Baroness Scotland of Asthal: My Lords, certainly I hope that I shall succeed in being more persuasive. These extensions, as the noble Baroness has referred to them, are extremely important and will have a beneficial effect upon our ability to ensure that the system is just and fair and that those who perpetrate crimes against others are brought to justice.

I thank my noble friend Lord Clinton-Davis for his support, which is welcome. On the last occasion on which we discussed these issues noble Lords asked about correspondence we had had with Justice, the Law Society and the Human Genetics Commission raising many of the concerns previously raised by your Lordships on the proportionality of the proposed amendments, the creation of a universal DNA database, abuse of the proposed powers, access to personal data held on the database and security of the samples, and the sharing of information with foreign investigative agencies. I hope that I have been able to reassure all three organisations in my replies and shall endeavour to do the same in your Lordships' House today. I hope also that I shall be able to reassure the noble Baroness, Lady Anelay, that there is no difficulty in terms of managing the data and that adequate safeguards are in place, which will mean that her concerns have no foundation in fact.

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Perhaps I should first remind the House why the Government propose to amend Section 61 of the Police and Criminal Evidence Act 1984 so as to 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. It is important for the police to be able to do that quickly in order to prevent persons evading justice by giving the police false identity and for the police to be aware of anyone who may pose a risk to themselves or to others. I explored those issues when we discussed the amendment, on which the noble Baroness, Lady Harris rightly commented.

I reiterate that the proposed amendments 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. That is important not just for the police but, as we explored earlier, possibly also for the individual concerned. The Government's proposed amendment to Section 63 of PACE in Clause 9 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, with corresponding savings in police time and cost but, just as importantly will save from misery those who have continued offences visited upon them by people who are not so identified.

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. That is important because we do not suggest that these are powers, as noble Lords rightly know, which will be unusually exercised. We suggest that they will be a routine exercise of power.

In previous debates, noble Lords suggested that safeguards must be maintained and that it should not be right for the investigating police officer to require fingerprints or a DNA sample to be taken. I ask noble Lords to consider the nature of the harm which it is said is being caused which requires these additional safeguards. The existing safeguards introduced by PACE will continue to apply and the use of this information is restricted to the prevention and detection of crime, the investigation of an offence or the conduct of a prosecution.

Noble Lords may be concerned about the abuse of such powers, particularly in the light of recent revelations. We believe that police can make mistakes on occasion but that there are now sufficient powers in terms of guidance in codes of practice on how to exercise such powers and if they are used, how to exercise them lawfully. Existing remedies are available to anyone who feels that he or she has not been treated fairly or in accordance with the law. These safeguards have worked well. There have not been any complaints about the way in which the procedure has worked.

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Anxiety has also been expressed about the suggestion that this is legislation by stealth. That is very much what was said by the noble Baroness, Lady Anelay. This is not a back-door attempt by the Government to create a universal DNA database. If that were part of the Government's agenda, I agree that it would raise significant practical and ethical difficulties and there would be a need for a national public debate such as we have seen over the issue of entitlement or identity cards.

In view of the enormous cost of such an enterprise, the Government would in any event have to consider seriously whether that was an effective way to target crime. I can assure noble Lords that such an idea is not on the Government's agenda. To those who say that these proposals will create a universal database I suggest that for that to be achieved everyone at some point in their lives would have to be arrested. We hope, of course, that that will not be the case. I hope that noble Lords agree that to create a national database using arrestable offences as a way forward would not be prudent or practical.

Ensuring public safety and fighting crime are among the most basic functions of the state. Striking the right balance between protecting individual privacy and taking necessary and proportionate action to protect the public is equally important. The Government are of the view that these proposals are proportionate to the benefits in terms of the prevention and detection of crime.

From our debates on the last occasion, noble Lords will know how useful some of these issues have been in terms of detection of crimes committed in the past and, indeed, in the future. We want to be proportionate. Already there are 2 million profiles, including about 177,000 in the first year. There has been significant enhancement of the data, which has been beneficial not simply to those dealing with cases but to the wider public because we have been able to detect crime more easily. I ask noble Lords seriously to consider whether in all conscience that is something they wish to frustrate.

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