Examination of Witnesses (Questions 960-971)
Mr Tony McNulty MP
25 JUNE 2008
Q960 Baroness Quin: You mentioned
earlier the principle of data minimisation. I think the Home Affairs
Select Committee is also keen on that principle. How does that
apply to the National DNA Database, in particular in keeping DNA
information on persons who are not charged with or convicted of
an offence? What about the time honoured principle of presumption
of innocence here? Is it fair to treat people who have never been
charged or convicted in the same way as those who have been?
Mr McNulty: I think there is an entire
misunderstanding of the nature of the National DNA Database; there
are no guilty people on it in the sense of guilty of future charges.
It is not an information source for all the naughty and potentially
nasty people in the country and if you are on it is a stigma.
It is purely an informational and investigatory device for the
police. I would, I think, defend absolutely the position we are
in now. You will know there are those who say why not go straight
to a universal database. I got in trouble because I rather clumsily
said on the Today programme that I had some sympathy with
the spirit of the logic behind that which, of course, days after
was cast as "Government minister has sympathy for universal
database" which I did not say; there is some logic to it.
I think that would be intrusive and unnecessary and cause all
sorts of difficulties. We have also looked at broadening out the
potential sweep of the DNA database to all offences recordable
and non-recordable, ie every fine and everything else and I think
that is a step too far. I think where we are now is appropriate.
I do not think it is intrusive and I think collectively in terms
of weighing the public good against the intrusion on the individual,
the litany of rapists, killers, child abusers who nominally, on
anybody's definition, would fall into your innocent category,
ie they have encountered the criminal justice system but the case
has not been pursued against them, only for it in some cases,
15 or 20 years later, horrendous crimes are to be laid at that
individual's door purely because of the individual DNA sample
being on the database. If we go back to the notion of balance
between the individual and the state, I think that is a balance
worth defending and equally in many instances, of the 40,000 or
so crimes dealt with since the inception of the DNA database,
in any number of cases the police would have been able to entirely
eradicate someone whose DNA sample was at a particular scene for
entirely innocent purposes but they would only have been able
to do so because they had that sample on the database as well.
I would passionately defend the position we are in now in terms
of the DNA database. The list of rapists, killers and everything
else we have resolved only because of the existence of those samples
on the database puts for me the balance very, very firmly into
the maintenance of the database as it is now.
Q961 Baroness Quin: Given that you
have talked about cases that have been solved 15 or 20 years later,
do you have a view as to the time period after which DNA information
should be deleted?
Mr McNulty: At the moment it is not,
as you will be aware. Tony Lake, the outgoing Chief Constable
of Lincolnshire, who was the ACPO lead on forensics, is looking
at whether there should be, particularly for younger people, a
time limited period of retention and then subsequent deletion.
We are trying to explore that with him at the tail end of the
broader PACE review. I think that sort of element is worth exploring,
especially for very, very young people, but I do want to get away
from this notion that somehow these are individuals who, if we
have not get them yet we will do, so they are almost a nearly
guilty. It is not a list of either guilty or innocent or anything
else; it is simply those who, for whatever reason, either at crime
scenes or in terms of arrest but not ultimate conviction, have
encountered the criminal justice system and it is a very, very
useful investigatory and information device for the police and
should not be seen as anything other than in those terms.
Q962 Viscount Bledisloe: I understand
the point that everybody should be on the National DNA Database.
I can understand another position which says that anybody who
has been convicted of a criminal offence—or offence of sufficient
importance—should be on. How can it be right to keep the
DNA of somebody who has been taken but was not in fact guilty
of that offence and the DNA was taken for the purposes of eliminating
them from the enquiry? How can it be right that against their
wishes—or certainly without consulting their wishes—it
is retained?
Mr McNulty: How can it be right? Because
it is not a sign of guilt; it is purely informational. I agree
also with the logic of a universal database and can see the integrity
of such a logic, but I do think for all sorts of reasons that
is a step far too far, as is the broadening out to non-recordable
as well as recordable offences. You have to strike a balance in
these things and I think the balance is about right.
Q963 Viscount Bledisloe: If two people
are present at a place where a murder has taken place and one
of them voluntarily gives his DNA because he thinks it will help
the police and the other one refuses, you keep the man who was
cooperative but the man who refused is not on your database.
Mr McNulty: Unless he is arrested subsequently
for anything else.
Q964 Viscount Bledisloe: Yes.
Mr McNulty: It is not about eliminating
everyone and finally having everybody on the database. It is,
by its nature, to an extent arbitrary in the terms of it being
restricted to those who encounter by arrest or for some other
reason a crime scene, but is a strong place to be in. I do not
think there is a matter of principle here; I do not think there
is any stigma attached at all with being on the database. The
whole notion of "Can we take the innocent off the database?"
is, when you think about it, abject nonsense because there is
no guilty on the database. There may be people who have been guilty
of other crimes in the past but on one level the intrusion into
their liberty, just because they have committed an offence they
should be on the database, is just as potentially damaging as
the "complete innocent". The power of the DNA database
I cannot overestimate in terms of some of these cases. To give
an example, Stefan Kisko only came out of prison because of a
DNA database sample that Ronald Castree had had but it was years
before he was arrested and convicted for that particular horrendous
crime. I am not saying all 40,000 crimes that have been successfully
dealt with because of the DNA database are as horrendous and as
headline in nature as the starker cases but I think it matters.
Dealing with these very, very serious crimes and getting innocent
people incarcerated off because of it in some cases does matter
and it is a matter of public policy and that balance between the
individual right and public policy; this is actually something
where the public good does outweigh the inconvenience of people
being on the database if they have ever encountered the criminal
justice system. I do believe that profoundly but there are people
running around the country on some sort of campaigning charging
white horse trying to get people to knock down the National Database
or somehow take the innocent out of it. There are some horrendous
cases here of the innocent who, by some of these people's definitions,
would be now out of the frame absolutely in terms of being charged
with their horrendous crimes.
Q965 Viscount Bledisloe: Do you realise
that inherent in that whole observation was the theory that you
do not get investigated by the police unless there is something
wrong with you?
Mr McNulty: Absolutely not. You are not
investigating everybody on the database because they are on the
database. You are investigating DNA samples found at crime scenes
in the absolutely normal fashion of investigation and if, by chance,
for some other entirely erroneous reason that perpetrator happens
to be on the database they will be charged accordingly. It is
not fishing. It is not a case that we have all these people on
the database, they all must be guilty, now let us find a crime
to attach to them. In terms of the wider political domain that
is exactly the sort of sloppy intellectualism that attracts itself
to this that I profoundly disagree with because of the profound
power of dealing with these individual cases. They just will not
happen, full stop. They will not happen unless we do have a database
that has to be populated in some arbitrary fashion, yes it is
populated by samples from crime scenes and you will remember in
the past the home secretary did take samples from the entire prison
population at that particular time and topped up by anyone who
encounters the criminal justice by arrest. That is not to say
they are guilty or otherwise; it is purely a very powerful informational
diagnostic tool that I would utterly defend.
Q966 Lord Woolf: I gave a judgment—I
have to disclose this—absolutely upholding the position
you have just described and the case that was put against my judgment
is that we really are adopting a totally illogical position. If
your arguments are as powerful as you suggest they are, then surely
they are powerful arguments in favour of universal disclosure.
If it be the case that they are powerful arguments about universal
disclosure where we all do it, then there is no inference that
you are almost guilty or anything of that sort. What are the arguments
that have persuaded you against universal? Why is too far?
Mr McNulty: As I say, I fell into the
trap courtesy of Mr Humphries or whoever by saying that I agreed
with the very strong logic of a universal database but I think
it is outweighed by practical civil liberties and potentially
legal concerns—notwithstanding the European court case that
is before the courts at the moment—that prevail against
that.
Q967 Lord Peston: And costs.
Mr McNulty: Yes, absolutely. The costs
and practicalities as well, but in the sort of broader public
policy and philosophical context of course I see the logic of
it but I do think there are cost practicalities, legal and civil
liberties dimensions that prevail against it, although I do see
the logic. That was the trap that Mr Humphries drew me into.
Q968 Lord Woolf: I do not think it
is right to say that it was a trap; it is a question of facing
up if it were so beneficial for the public interest. Can you give
some indication of what would be the additional cost of everyone
being required to disclose their DNA? It is a very simple exercise.
Mr McNulty: I do not think to either
cause excitement from media colleagues behind me or a nervousness
in other people, that there is some report or work that has been
done by Government to look at the costings for taking and then
storing individual DNA for everyone. I think there are strong
civil liberties and other reasons why, notwithstanding the logic,
it is not a road I would go down. Some police officers do put
that forward, and some a much wider base than we have now. You
have to draw the lines of parameters somewhere and I think the
line that says that encounter or arrest in the first instance
is a sufficient line to draw for recordable offences, not just
every offence. On a logical level I to take the broader point,
but I think there are powerful public policies and civil liberties
that in the balance of things mean that the position we have now
is preferable to that sort of universal approach.
Q969 Lord Rowlands: We are still
trying to grapple with the simple proposition that I, as an individual,
volunteer to give my DNA—I am not approached by the police,
I volunteer to give my DNA—why do I not have the right to
say that afterwards I wish to have it eliminated?
Mr McNulty: By the nature of it and by
the nature of the logic we have just been discussing, the DNA
database is more enhanced with your sample on it than not. As
I say, the work we are doing with ACPO to look at potential retention
periods, especially for the concern—I put it no stronger
than that—about very, very young people being on it and
we do need to get to an acceptable and agreed position on that.
Q970 Lord Rowlands: Will you get
a better voluntary effort if you at least give the citizen the
right afterwards to say that he now wishes his DNA to be eliminated?
Mr McNulty: It is interesting that what
there has not been is any concerted effort by Government to get
voluntary contributions to it; maybe that is an area we should
explore and then look at the retention protocol around that. The
notion that volunteers should have at least the option for retention
being for a shorter period than forever is a fair one that we
are exploring.
Q971 Baroness O'Cathain: Still on
the same question really but I take a somewhat different view.
I do not know whether the Government has looked at this, there
does not seem to have been much publicity about it, but a lot
of women particularly would feel a lot more secure and safe if
everybody was on the DNA database, particularly in rape cases,
because there is a universal feeling out there that women who
are subjected to rape do not have any chance whatsoever of getting
any sort of justice.
Mr McNulty: I think the corollary of
that is how some significant major rape cases have been dealt
with only because of the DNA database so it goes to the same point.
The debate around universalism will continue. In many investigations
up and down the country around rape a goodly number—if not
the overwhelming majority of the male population in a particular
area—have come forward quite willingly to submit their DNA
sample to be eradicated. I do not think it is a debate that will
go away. I think the position now is a very, very powerful one
and I really would traduce those who are in opposition to it.
I think there are principles around where you draw the line, but
I do not understand at all these white knights charging round
the country on some sort of civil liberties campaign saying that
the DNA database is somehow inherently evil. That is an absolute
nonsense. I have had some assistance from behind me—you
get these inspirations every now and then—says: "Volunteer
samples may only be taken where the person provides written consent
to give a DNA sample to assist the police investigation. The resulting
DNA profile is then compared in a forensic laboratory with the
DNA material recovered from the crime scene. Volunteer profiles
are only added to the National Database where an individual has
given separate written consent for the profile to be loaded and
retained. The consent form explains that once consent for addition
to the National Database is given it cannot be withdrawn."
That reinforces your point and it is something that we do need
to look at in terms of Tony Lake, the ex-head of Lincolnshire
who was the ACPO lead on forensics and his successor. Regulating
the framework roughly where it is now I think is hugely important
and I have a task to explain to more and more people the public
policy benefits of the DNA database and some of these significant
cases only coming to fruition and conviction of the perpetrators
because of an "innocent" sample given some time before
the individual is actually caught on the major crime. That is
a huge debate.
Chairman: Minister, thank you very much indeed
for joining us this morning and for the evidence you have given.
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