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The amendment requires guidelines on requesting information about the fingerprints and samples held. Access to information held on an individual is regulated by the Data Protection Act. Under that Act, an individual can ask the police what information they hold on them. Information on how to make a subject access request can be obtained from a local police station or through the force’s website. The Information Commissioner provides independent oversight of data protection issues, including the retention and use of fingerprints and samples. Given this established system, it seems unnecessary to require an additional set of national guidelines to be published.



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I turn to the destruction of samples held on the National DNA Database. The Criminal Justice and Police Act 2001 amended PACE to remove the requirement on the police to destroy samples and fingerprints taken from people who had been acquitted or against whom charges had been dropped or not proceeded with. The amendment in the 2001 Act arose from decisions in the Court of Appeal relating to two cases where compelling DNA evidence that linked one suspect to a murder and another to a rape could not be used and neither man could be convicted. This was because, at the time when the matches were made, both defendants had either been acquitted or a decision made not to proceed with the offences for which the DNA profiles had been taken.

The Criminal Justice Act 2003 then amended PACE so that samples and fingerprints could be taken and retained before charge from persons who had been arrested on suspicion of involvement in a recordable offence. Prior to that, DNA samples could be taken only from a person who had been charged with, informed that they would be prosecuted for, or found guilty of having committed a recordable offence.

Only chief officers have the discretion to decide whether to remove records from the police national computer or other databases such as the National DNA Database. The matter of discretion is an operational one for the police force involved.

The Association of Chief Police Officers has issued guidance for chief officers on the consideration of applications from individuals for the removal of personal information, including DNA samples, from police records. The guidance, known as the “Exceptional Case Procedure”, is incorporated in ACPO’s Retention Guidelines for Nominal Records on the Police National Computer and will help to ensure national consistency regarding retention and deletion. It has been published on the ACPO website. It provides a business process for chief officers to follow when considering applications for the removal of records. The guidance makes it clear that it is expected that records and profiles that have been taken lawfully will be removed in exceptional cases only. The norm will therefore be to retain the profile and associated sample. However, each case has to be considered on its merits. What constitutes exceptional circumstances is ultimately a matter for the individual chief officer. The guidance states:

“Exceptional cases will by definition be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance”.

Only profiles and samples obtained in relation to terrorism and terrorism investigations will be held on the CT DNA database. A proportion of the database will contain samples recovered by covert and surveillance means, which have been obtained lawfully and with proper authorisation for the purposes of counterterrorist investigation and national security. Covertly obtained samples will account for approximately 2 to 5 per cent of the data on the counterterrorism database. Current operational activity indicates that no more than a few hundred samples per annum will be recovered and retained on the database.



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In order to protect counterterrorism investigations and national security from compromise, we would not wish to make the covertly acquired contents of the database public knowledge. Disclosure of who is held on this database would create a serious risk of compromising these investigations. Individuals who are under investigation would find this out and investigations would be compromised.

I have made clear the procedures already in existence on the retention, use and destruction of fingerprints and samples. We are debating not the principles but the procedures. I know that there was talk of a much larger debate on DNA, but I do not think that this is the time to have that debate. There will have to be another opportunity for that. We can open up all sorts of issues. For example, the noble Earl, Lord Ferrers, said when we last debated this that he could see no reason why any innocent person would be concerned. This matter throws open all sorts of issues and that debate is beyond the context of the narrow provisions in the Bill.

I firmly believe that national guidance of the type prescribed in the amendment is unnecessary; indeed, it would be extra bureaucracy. Information on how to obtain details of what information the police hold on an individual and the ACPO guidelines on the retention, use and destruction of fingerprints and samples are already publicly available. However, I take the point made by the noble Baroness, Lady Hanham, that this is somewhat convoluted. When I looked for myself, I saw that it was not as straightforward as it perhaps should be. I very much recognise the importance of clarity for the public on these matters and so I will ask my officials to work with the relevant bodies to ensure that the guidance is much more easily accessible, through pop-ups or whatever, for members of the public. On that basis, I ask that the amendment be withdrawn.

Baroness Hanham: My Lords, I am grateful to the Minister for rereading the ACPO guidelines, which I mentioned. However, we are perhaps missing the point entirely. The purpose of the amendment is to ensure that anyone who is on the database has access to guidelines that will tell them how to get off the database. There is only one way of getting off it at the moment, according to the ACPO guidelines, which is to be involved in a case in which you have been accused of murder but it transpires that the dead person died by some other means. That is not a happy example; there may be better ones.

The principle goes back to what the noble Baroness, Lady Miller, and I said. Those who are innocent should not be on any database. They should not be under the eye of the law of this country. They are innocent. They have no truck with the law and their DNA should not passed to Europe for whatever reason simply because it is a chunk of information that the police hold.

The Information Commissioner is there for data protection. He is not there to tell people how to get themselves off a database that they should not be on in the first place. I do not think that that will help us at all. I do not think that further clarity on the ACPO

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guidelines will help us either. All that says is that it will take an absolutely extraordinary exception to get off the database.

I do not know—I suspect that many do not know—what the public believe is the situation. Like the noble Viscount, Lord Bledisloe, I suspect they think that if you have had your DNA and fingerprints taken but are found innocent and cease being involved in any sort of criminal inquiry, that will be the end of it, the material will be gone, finished, over. But it is not gone, finished or over by any means. You are still on that database. If you cannot remain tranquil, calm and unaffected about it, you will get very mad indeed in trying to get yourself off it.

The Minister says that these clauses are to do with counterterrorism and the counterterrorism database but, as we know from the asset-freezing provision, one bit of legislation can be used for any other purpose. It can be used in any way, so that a bit of database information taken for police inquiries can be used in conjunction with another inquiry. That is no way out at all.

We need a proper discussion. We need proper guidelines for the public and for those who are involved. I do not know, but my fingerprints may be all over a database. If that is the situation I would like to know, and I would like to get off it. I would like to know how to do so, but the fact is that I do not. We need a major debate on this so that people can understand the situation. For the moment, however, we need to have proper and clear guidelines on how to make an application to get off the database in reality and not only in exceptional circumstances. I wish to test the opinion of the House.

3.57 pm

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 161; Not-Contents, 150.


Division No. 1


CONTENTS

Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Barker, B.
Bates, L.
Blaker, L.
Bradshaw, L.
Bramall, L.
Bridgeman, V.
Bridges, L.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Cathcart, E.
Cavendish of Furness, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Craigavon, V.
Crickhowell, L.
De Mauley, L.
Dear, L.
D'Souza, B.
Dundee, E.
Dykes, L.
Eccles, V.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.


4 Nov 2008 : Column 139

Glentoran, L.
Goodhart, L.
Greaves, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Higgins, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
James of Blackheath, L.
Jones of Cheltenham, L.
Jopling, L.
Kilclooney, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Krebs, L.
Laird, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Listowel, E.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Luce, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Mar and Kellie, E.
Marland, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Naseby, L.
Neuberger, B.
Neville-Jones, B.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Onslow, E.
Palmer, L.
Parkinson, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plumb, L.
Quinton, L.
Ramsbotham, L.
Rawlings, B.
Reay, L.
Redesdale, L.
Rennard, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Sandwich, E.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tordoff, L.
Trefgarne, L.
Trumpington, B.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walton of Detchant, L.
Warsi, B.
Wilcox, B.
Williamson of Horton, L.

NOT CONTENTS

Adonis, L.
Afshar, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Bilston, L.
Blood, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Cameron of Lochbroom, L.
Campbell-Savours, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.


4 Nov 2008 : Column 140

Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Gilbert, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Griffiths of Burry Port, L.
Grocott, L.
Hameed, L.
Hannay of Chiswick, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kerr of Kinlochard, L.
Kirkhill, L.
Laming, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Manningham-Buller, B.
Marsh, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Paisley of St George's, B.
Pannick, L.
Parekh, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Powell of Bayswater, L.
Prosser, B.
Prys-Davies, L.
Puttnam, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Sheldon, L.
Simon, V.
Slynn of Hadley, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Strabolgi, L.
Tanlaw, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Winston, L.
Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.

4.10 pm

Clause 18 [Material not subject to existing statutory restrictions]:

Baroness Miller of Chilthorne Domer moved Amendment No. 3:

3: Clause 18, page 14, line 5, leave out “(whether”

The noble Baroness said: My Lords, we are bringing this amendment back because, on reflection, and having read the Minister’s reply to the points we raised in

4 Nov 2008 : Column 141

Committee, we are not happy that Clause 18(4) is so widely drawn. We wonder why the provision that,

and so on, is necessary. We can understand that position as regards the UK, but my question in Committee was: what about crimes committed in another country, which this subsection encompasses, that are not crimes in the UK? I invited the Minister to give examples of situations in which information might be held on an individual who had committed a crime in another country which was not a crime here—for example, the consumption of alcohol.

The Minister’s reply related mostly to terrorism, which is internationally recognised as a crime; but I had hoped to draw out why the Government had chosen such a wide definition of criminal offences in the Bill, including those that would certainly not be crimes in the UK. By tabling the amendment again, I hope that the Minister will answer in a way that I can understand and give some of the examples that I had asked for. We left it open for more information to be given between Committee and Report, but we have not received any. I would like that information to be put on the record. I beg to move.

Lord West of Spithead: My Lords, the provisions on the retention and use of fingerprints and samples have three objectives: putting a counterterrorism DNA database on a firmer legal footing, allowing fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security, and making it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the National DNA Database.

Clause 18 puts the retention and use of DNA and fingerprint material that is not currently subject to statutory restrictions on a statutory footing, permitting law-enforcement use for certain purposes. Those purposes are: the interests of national security; purposes related to the prevention or detection of crime; the investigation of an offence or the conduct of a prosecution; and purposes related to the identification of a deceased person or of the person from whom the material came. I must make it clear that these provisions do not—I repeat, do not—create any new powers for the covert acquisition of fingerprints and samples.

Included in the samples covered by Clause 18 are those obtained covertly under Part 3 of the Police Act 1997 and Part 2 of the Regulation of Investigatory Powers Act 2000. The use of the powers in those Acts is subject to numerous safeguards and oversight. Covert and investigatory powers can be used only when they are necessary and proportionate with regard to human rights. Independent oversight is exercised by the Office of Surveillance Commissioners, the OSC, which conducts regular public authority inspections that are reported to the Prime Minister, and produces annual publications of its findings.

Anyone who believes that they have been the victim of unlawful, covert surveillance or any other investigatory powers set out in RIPA can apply to an investigatory powers tribunal to investigate their claim. The tribunal

4 Nov 2008 : Column 142

is independent of government, law enforcement and intelligence services. Statutory codes of practice provide guidance on the use of covert investigatory powers, including surveillance, and the Home Office is currently revising the covert surveillance code of practice. The OSC also provides advice during its regular inspection visits to public authorities.

4.15 pm

As has been said, these amendments refer to the use of samples covered by Clause 18 for the prevention or detection of crime. Clause 18(4)(b)(i) covers offences under UK law or the law of another territory. Clause 18(4)(b)(ii) covers conduct that is, or corresponds to, conduct which, had it taken place in the UK, would have constituted an offence.

The definition in this Bill has been in operation under Section 64(1B)(d) of the Police and Criminal Evidence Act since 2001, when it was amended by Section 84 of the Criminal Justice and Police Act 2001. Since that change, there have been no challenges to the provision. The definition can also be found in the Police and Criminal Evidence (Northern Ireland) Order and the Terrorism Act 2000.

There are two reasons why the definition must remain as currently drafted: first, there is an operational need to share samples internationally to tackle crimes such as drug trafficking, people smuggling and terrorism; and, secondly, for the purpose of uniformity, which enables the most effective and efficient use of retained samples.

Sub-paragraphs (i) and (ii) of Clause 18(4)(b), to which these amendments attach, provide the definition of crime for the purpose of these clauses. When this amendment was tabled in Committee, I made the point that the definition as currently drafted is essential for the most efficient use of fingerprints and samples. The definition must remain the same if we are to be able to counter the national and transnational threat of crime and terrorism. The effect of this definition is that the police can share fingerprints and samples internationally to aid terrorist and criminal investigations of crimes committed in the UK or abroad.

The threat of terrorism and crime requires both national and transnational multi-agency co-operation. It is important that we are able to share our data with national and international partners so that we can properly protect our national security and investigate crimes of an international and serious nature, such as drug-related crimes. The definition of crime at Clause 18(4)(b)(i) is drafted to maximise international co-operation where there is a serious criminal offence abroad. I shall explain the process by which samples covered by Clause 18, to which the amendment applies, may be shared internationally.

A request from a foreign partner would be submitted to the police to cross-check a sample with one held here. Initially, given the sensitivity of the samples covered by Clause 18, the police would treat the request with caution and, unless they considered it a valid request for a check regarding a particularly serious crime, it would be denied. There is no requirement to share these samples. Should the request pass this stage, a check may be done against the samples covered by

4 Nov 2008 : Column 143

Clause 18. It must be remembered that the number of samples covered by Clause 18 is very limited. Where a sample is shared with a foreign partner, it is completely anonymised. Therefore, if it is a fingerprint, the foreign partner receives only an image of the fingerprint and none of the biographical detail, the status of the sample or its provenance. Where it is a DNA sample, the foreign partner will receive a string of numbers—again, stripped of the biographical detail, status and provenance. Should the foreign partner subsequently find a hit against the shared sample, they would have to return to the police to request any of the sample’s biographical information, status and provenance, and a decision would then be taken as to whether to reveal that information.

The decision to share samples internationally is discretionary and is taken by the police. Given the nature of the samples covered by Clause 18, the decision is given considerable thought.

There are safeguards against the abuse of samples held subject to Clause 18. In line with his existing powers, the Information Commissioner will provide independent oversight of the database with regard to data protection issues. Additionally, the Metropolitan Police Service will liaise with the newly appointed Forensic Science Regulator to establish protocols for international exchange of DNA data. Working with the Custodian of the National DNA Database, the MPS will ensure compliance to standards it has set, which are accepted and adhered to by forensic laboratories.

The definition of crime in Clause 18(4)(b) is the same as that in Section 64(1B)(c) of the Police and Criminal Evidence Act 1984, Article 64(1B)(c) of the Police and Criminal Evidence (Northern Ireland) Order 1989 and paragraphs 14 and 20 of Schedule 8 to the Terrorism Act 2000. In those statutes and in this Bill a crime is defined as a criminal offence under the law of the UK or of a country or territory outside the UK.


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