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Baroness Kennedy of The Shaws: My Lords, before the Minister sits down, perhaps I may ask whether the Government have put their mind to the distinction to be made between a database which keeps the "barcode", the information which allows police and the authorities to make a comparison with a sample taken from a crime scene, and the keeping of the sample from which the barcode is made. As the noble Baroness will know, when a person is arrested a swab is taken from the inside of their cheek. From that sample is taken, from what is called the "junk DNA", a barcode. That barcode is then used to process it against other samples from the crime scene or to make comparisons with any other crime scene.

Those concerned with civil liberties and those involved in the scientific community are exercised by the rationale for keeping a sample. The question is: will it be used for some questionable purpose in the future? Is it possible that when we know more about genetic science, the Government's intention—or that of any

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future government—may be to use this information to, for example, flag up those with a propensity for crime? The public would find that kind of usage very questionable. The suggestion is that the samples need not be retained but that only the barcode would be needed for the identification purposes outlined. So why is there a need to keep samples?

Baroness Scotland of Asthal: My Lords, I very much understand why my noble friend made those comments. We would say that the barcode is not enough. I understand too the fear she expressed that the samples would be used for some nefarious purpose, and she talked about a propensity for crime. I make it absolutely clear that that is outwith anything within the Government's contemplation. The noble Baroness will know that the barcode really is not enough because we need to allow for retesting and, with technology moving on, to upgrade old samples.

When we previously debated this issue, I referred to a case that was solved after 20 years because a sample had been taken and retained at the beginning of the use of this technology. Of course 20 years ago it would not have been possible to identify the person because the technology had not evolved to such a stage to make that possible. But, because the sample existed, one was able to use it for identification purposes, which could properly be used just because the technology had been proved. So it was not an improper purpose; it was a proper purpose. The sample enabled someone to be identified. He had committed a minor offence, such as shoplifting a very small item. The person was identified as having committed a number of very serious rape offences many years before. We were able to bring that person to justice because the sample had been retained.

We have clearly thought about how these powers should be used. I reassure the House that the provision is for that purpose alone. I note what my noble friend has said, but I am very happy to be able to lay that matter to rest. That is not the Government's intent. I recognise the anxieties there would be about that if it were.

Baroness Harris of Richmond: My Lords, I thank the Minister for her very full reply. I shall read carefully her comments in Hansard. We are most concerned about the routine exercise of power. I shall look carefully to see whether we should bring these issues back at Third Reading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Taking non-intimate samples without consent]:

[Amendments Nos. 13 and 14 not moved.]

Lord Dholakia moved Amendment No. 15:

    After Clause 9, insert the following new clause—

(1) Section 64 of the 1984 Act (destruction of fingerprints and samples) is amended as follows.

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(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."

The noble Lord said: My Lords, we raised this matter in Committee and I do so again. 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 samples from a person arrested for a recordable offence. Such samples can be taken without the consent of the individual, only requiring the authorisation of an inspector. The new power is available whether or not the sample is required for the investigation of an offence and where the person is suspected of being involved.

One of the powers being given to the police is that DNA profiles extracted from an arrested person will be added to the DNA database and checked for matches with DNA taken from other scenes of crime. At the heart of the debate is the argument advanced by Justice about whether it is appropriate or necessary in a democratic society to obtain and retain information from innocent people. If the database is not considered appropriate, there is no logic in allowing the police to retain such samples of profiles.

The public are always very happy to co-operate in cases where DNA is sought from a large number of people to assist in solving a heinous crime. However, if it is generally known that people who are not proceeded against or are found to be innocent in court might have samples retained, it might be difficult to obtain the public's co-operation.

I also draw the Minister's attention, as I did in Committee, to the report of the Joint Committee on Human Rights on whether such information will be available to foreign investigators and intelligence agencies; the propriety of passing such information; and the damage it could cause to individuals.

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 a charge being levelled. The whole question relates to infringing the rights and liberties of the individual. We believe it is for the court to determine in each case whether the sample or profile should be retained. These matters are for public debate and should not necessarily be pushed through as part of the Criminal Justice Bill. When liberties are affected we believe that we should strongly object. I beg to move.

6.45 p.m.

Baroness Anelay of St Johns: My Lords, as my name is attached to the amendment, I rise briefly to support it. I made it clear when we debated these matters in Committee that if the Government could not accept the compromise that I offered at that stage—they did not and I was defeated on a vote—that I would put my full support behind this amendment, which I do today.

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Baroness Scotland of Asthal: My Lords, during our previous debate on this amendment, I said how important it is 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 future miscarriage of justice.

Retention of fingerprints and DNA samples, as the noble Baroness will know, can be used to establish innocence as well as guilt, and in enabling the swift elimination of innocent people from investigations with the minimum of inconvenience. I know that that is something which the noble Lord, Lord Dholakia, would welcome and would wish to see happen.

The police are already able to retain other information gathered as part of an investigation, such as witness statements and photographs. Samples and fingerprints are really no different from those pieces of information.

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. I repeat: law-abiding citizens have absolutely nothing to fear from their fingerprints or DNA being retained, as they may be used only for the prevention or detection of crime.

The Lord Bishop of Worcester: My Lords, I am grateful to the Minister for giving way. I want to ask her whether the Bill divides humankind into three—the guilty who have been convicted of offences, the not guilty, and the probably dodgy. I do not wish to be probably dodgy, and I do not really wish to live in a society in which a substantial body of its citizenry have been marked in some database as being probably dodgy. Whatever the noble Baroness has so graciously and persuasively said in argument, I think that is actually the incremental effect of the Bill.

Baroness Scotland of Asthal: My Lords, with the greatest respect, I disagree with the right reverend Prelate the Bishop of Worcester. There are not three categories of people—the guilty, the not guilty and the probably dodgy.

All we seek to do is to enable the system to make proper and judicious decisions in identifying those who have committed crimes. I wish that the world was not as it is, but we must deal with it as it is. In reality, we must look at those who are arrested and have committed offences, and those who have repeated such offences. We live in an increasingly sophisticated world, where those who wish to avoid justice become increasingly skilled at doing so. It is therefore incumbent upon those of us who seek to redress the balance and to make the world fairer and more just to say that there is only one type of person, that we will treat everyone the same, and that we will use every available tool to differentiate the sheep from the goats. We know that others will do the same on a certain day that we will all have to meet in due course.

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We seek to make a difference and to give those entrusted with the justice system the tools to make decisions clearly. I emphasise that the provision is not simply for those we wish to convict. DNA development has allowed us to release people wrongly imprisoned and sentenced as a result of a miscarriage of justice because our data in the past were flawed. There is a benefit but also a burden. It is a tool that can enable us to convict the guilty and to release the innocent. If the bottom line is to ask, "Is that a tool that I wish to throw away?", I say openly that it is not. It is a tool that can be used for justice, as a sword to pierce the guilty and, it is to be hoped, to shield those who are innocent.

Without detracting from everything that we have said, I understand the anxieties on the issue, but, with respect, I do not agree with them. Noble Lords expressed concern about sharing the protection of information on the National DNA Database. Those concerns were echoed in correspondence that we received from various parties, including Justice. Noble Lords mentioned, in particular, concerns about data protection and what some regard as the lack of clarity on the accountability of the owners and custodians of the National DNA Database. Concerns were also expressed about privacy protection where information may be made available to foreign investigators. The noble Lord, Lord Dholakia, touched on all those issues. I hope that I was able to reassure noble Lords on the latter point during our previous debate.

Access to personal data held by the custodian on the National DNA Database is restricted to persons authorised to have access by the custodian and the data subject, or their representative, as required by the Data Protection Act 1998. Persons are authorised to have access only to carry out their work. The access controls are tiered to limit the level of access to that necessary for this. The access controls are documented and strictly enforced. Accountability for any breach of Article 8 of the ECHR would be according to where any breach occurred; for instance, it could be within the office of the custodian, the Forensic Science Service laboratories, other forensic suppliers or the police.

We have safeguards. The powers will be used judiciously and justly; they will not be abused. I ask noble Lords opposite to think carefully before depriving us of this opportunity to do justice, not just for those accused, but those wrongly convicted, too.

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