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2: Before Clause 14, insert the following new Clause-

"Retention, destruction and use of fingerprints and samples

For section 64 of the Police and Criminal Evidence Act 1984 (destruction of fingerprints and samples) there is substituted-

"64 Destruction of fingerprints and samples

(1) Unless provided otherwise in this section, where fingerprints, impressions of footwear or samples are taken from a person in connection with the investigation of an offence, the fingerprints, impressions of footwear or samples or any DNA profile may not be retained after they have fulfilled the purposes for which they were taken and shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom a body part came.

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(2) In subsection (1) above-

(a) the reference to crime includes a reference to any conduct which-

(i) constitutes one or more criminal offence (whether under the law of a part of the United Kingdom or of a country or territory outside the United Kingdom); or

(ii) is, or corresponds to, any conduct which, if it took place in any one part of the United Kingdom, would constitute one or more criminal offences; and

(b) the references to an investigation and to a prosecution include references, respectively, to any investigation outside the United Kingdom of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside the United Kingdom.

(3) A DNA sample must be destroyed-

(a) as soon as a DNA profile has been derived from the sample, or

(b) if sooner, before the end of the period of six months beginning with the date on which the sample was taken.

(4) Any other sample to which this section applies must be destroyed before the end of the period of six months beginning with the date on which it was taken.

(5) Fingerprints, impressions of footwear and DNA profiles are not required to be destroyed if they were taken from a person convicted of a recordable offence.

(6) Where any fingerprint, impression of footwear or sample has been taken from a person who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall not be destroyed-

(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the "initial retention date"; or

(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken, such date being the "initial DNA retention date"; or

(c) if an application is made to the court under subsection (7), until such later date as may be provided by subsection (8) or (10) below.

Provided always that if the person is convicted of a recordable offence, subsection (5) shall apply.

(7) On application made by the responsible chief officer of police within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.

(8) An order under subsection (7) shall not specify a date more than two years later than-

(a) the initial retention date in relation to fingerprints or impressions of footwear, or

(b) the initial DNA retention date in the case of a DNA profile.

(9) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(10) A fingerprint, an impression of footwear or a DNA profile shall not be destroyed where-

(a) an application under subsection (7) above has been made but has not been determined;

(b) the period within which an appeal may be brought under subsection (9) above against a decision to refuse an application has not elapsed; or

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(c) such an appeal has been brought but has not been withdrawn or finally determined.

(11) Where-

(a) the period within which an appeal referred to in subsection (9) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (8);

the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.

(12) Subject to subsection (13) below, where a person is entitled to the destruction of any fingerprint, impression of footwear or sample taken from him or DNA profile, neither the fingerprint, nor the impression of footwear, nor the sample, nor any information derived from the sample, nor any DNA profile shall be used in evidence against the person who is or would be entitled to the destruction of that fingerprint, impression of footwear or sample.

(13) Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention, in the case of a fingerprint or impression of footwear or the retention of any DNA profile-

(a) that fingerprint, impression or DNA profile as the case may be need not be destroyed;

(b) subsection (12) above shall not restrict its use; provided that-

(i) no DNA profile may be retained on any child under the age of 10 years; and

(ii) consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible following receipt of such written application.

(14) For the purposes of subsection (13), it shall be immaterial whether the consent is given at, before or after the time when the entitlement to the destruction of the fingerprint, impression of footwear or DNA profile arises.

(15) In this section-

"DNA profile" means any information derived from a DNA sample;

"DNA sample" means any material that has come from a human body and consists of or includes human cells;

"the responsible chief officer of police" means the chief officer of police for the police area-

(a) in which the samples, fingerprints or impressions of footwear were taken; or

(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken;

a "sexual offence" or "violent offence" shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.

(16) Nothing in this section affects any power conferred by paragraph 18(2) of Schedule 2 to the Immigration Act 1971 or section 20 of the Immigration and Asylum Act 1999 (c. 33) (disclosure of police information to the Secretary of State for use for immigration purposes).

(17) An order under this section must be made by statutory instrument.

(18) A statutory instrument containing an order under subsection (17) shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.""

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Baroness Hamwee: I shall speak also to the amendments grouped with this one and to our objections to Clauses 14 to 23 standing part.

With this amendment we come to the subject of DNA. In the first debate in which I spoke on the Home Affairs portfolio, I said that for Liberal Democrats, civil liberties are in our DNA. The Minister protested that they were in his too, and I do not for a moment doubt it. Unfortunately, although they might be in his DNA, they are not in this Bill.

The current law on DNA retention has been held by the Grand Chamber of the European Court of Human Rights to breach the European Convention on Human Rights. The "blanket and indiscriminate nature", to use its words, of the law under which the police may retain indefinitely the DNA of the person arrested, whether or not convicted or even charged, failed to,

Following the case of S and Marper the Government have got to do something. However, what they are choosing to do in this Bill is only a marginal improvement. Those arrested but not charged or convicted will still have their DNA profile kept on the national DNA database for at least six years. In our view, the retention of the DNA profile of an innocent person for six years is six years too long.

I spoke at Second Reading of the importance of the presumption of innocence over guilt holding in our technologically advanced world, of arrest not being confused with conviction and of the stigma attached to DNA retention. Evidence of that was debated not only in this House but in the Commons and given to the Home Affairs Select Committee, which has recently published a report on the matter.

The Home Office has relied on research which itself relies on the flawed premise that arrest is an indicator of the risk of offending-arrest not conviction-and it measures the risk of offending by the risk of rearrest. So it appears that two arrests are evidence of criminality. I could go on but I shall not do so because I am aware of how much business the House has to get through-I was going to say tonight but perhaps I should say before we start business again tomorrow.

Members of the Commons discussed the matter at length-they went on because they had more opportunity-and the Conservative Member Mr Brokenshire said that,

He said that when introducing an amendment that is exactly the same as the amendment we have tabled. I do not often flatter the Conservatives-either sincerely or insincerely-but they will recognise the imitation on this occasion.

I made it clear at Second Reading that the amendment is a compromise. The Scottish model, which this is-or, one might say, the model of my noble friend Lord Wallace of Tankerness-self-evidently is more proportionate than the provisions in the Bill. Innocent

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people are treated as innocent but there is an allowance for a three-year retention of data in the case of those suspected of sexual or violent offences. I have flattered the Conservatives and now I shall quote the noble Baroness, Lady Neville-Jones. At Second Reading-which seems a long while ago-she said:

"In the absence of a much better put together case than the assertions that we heard this afternoon, the Scottish system has shown that it is capable of delivering. It is the reason why we on these Benches prefer that model. We believe that the state should not retain the DNA profiles of those not convicted of an offence, except in circumstances where the charges relate to a crime of violence or of a sexual nature".-[Official Report, 29/3/10; col. 1234.]

That is quite right.

In winding up for the Conservatives, the noble Lord, Lord Skelmersdale, said:

"Suffice it to note that both the Joint Committee on Human Rights and your Lordships' Constitutional Committee doubt whether Clauses 14 to 21 really are Human-Rights-Act-proof".-[Official Report, 29/3/10; col. 1268.]

He said that predicting what would happen with the Bill was above his pay grade, although it was obvious from his speech that he expected it not to see Royal Assent. I therefore trust that the noble Baroness will not now support the Government in view of her own and her party's clear position previously. I await to hear her views with interest, but if she tells the House that this is a matter for review and if her party finds itself in a position to conduct a review it will do so, why not on the basis of the Scottish model rather than the regime which her party and she have condemned and which may well be-following high legal costs and much emotional agony-condemned by the European court? I beg to move.

7.45 pm

The Earl of Onslow: My Lords, I am a member of the Joint Select Committee on Human Rights; I shall leave it the day after tomorrow, or whenever Parliament rises, because I have done my four years. The committee looked at this issue and did not think it would pass the Human Rights Act hurdle. When you take a horse racing, it is silly to put up an overscoped fence so that it falls flat on its face, and then put up another fence which is too big for it and, bang, down it comes again. That is an exact parallel to what the Government are doing in this case.

DNA is one of the greatest aids we have had in modern times to assist in solving crimes, particularly unpleasant and nasty ones-I totally concede that. However, we must never lose sight of the liberties of the subject. That means that the DNA collected from innocent people who volunteer to give it in a murder inquiry should automatically be destroyed; the DNA of people who have been arrested but against whom charges have not been brought should be destroyed; and the DNA of people who are charged and acquitted should also be destroyed. I do not know whether the amendment goes far enough or whether it is comprehensible-I looked at it, tried to read it but could not understand it-but I was efficiently briefed by Liberty. I believe that that sums up Liberty's position, as well as I can remember it, and also the position of the Joint Committee on Human Rights. We were unanimous on this issue, as we are on quite a few matters, and there was no question of any split or vote on it.

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When a case is lost in the European Supreme Court, it is stupid of the Government, instead of accepting that the case is lost, to produce legislation which will lead to them losing again. I fear that the provisions in the Bill will produce another fall at the second hurdle. The amendment should at least be taken seriously, if not accepted.

Baroness Kennedy of The Shaws: My Lords, I, too, support the amendment. I can always be relied upon to be consistent on this issue. From the point where the law was changed to allow the retention of the DNA of those who were arrested but subsequently not charged, I have opposed that retention. People feel quite seriously that there is a stigma attached to the retention of DNA. If they have been arrested and no subsequent charge follows, its retention on the database makes them feel that a terrible wrong is being done to them by the state. That might be different if everyone were on the database from the word go, but it is not the situation that we are currently facing.

I was saddened that the Government did not accept, in light of the European Court's decision, that there were breaches of human rights principles. While I was not particularly accepting of the Scottish formula, I felt that it was a compromise that the Government should have willingly accepted. It is a great regret to me that they have not done so. I, too, shall support the amendment. It seems to me that a case will go up through the courts, and it is very likely that it will be found that the Government's new formulation will, like the old one, offend against human rights standards. I would have thought that this was a moment to say, "Enough. Let's reflect on this over the next period and see what a new Parliament, in whatever form it is, might feel about all these matters in a fresh dawn".

Lord Judd: My Lords, having spoken on this subject at Second Reading, I feel compelled to say that I have a good deal of good will towards the drift of the amendment put forward by the Liberals. I find it very sad that, at the end of this Parliament, we should be endorsing the erosion of one of the fundamental principles of justice in this country as I have understood it, which is the presumption of innocence.

There will be those for whom there is no question of their presumption of innocence; there will be some who have a qualified presumption of innocence because their name is on a register or record even though they have not been found guilty of any crime. This is not an acceptable situation. I also find it very sad that we should at this stage be dragging our feet not only on what our own Joint Committee on Human Rights and Select Committee on the Constitution have said but on what the European Court has been so firm about.

The issues of proportionality, too, are central to our whole tradition of justice, and this is what has raised anxiety. I would have liked to feel at this stage that we were in the vanguard of defending these principles. I am really concerned about the erosion of everything that we have understood to be the cornerstones of our system of justice.

I am sorry to have to say these things this evening, but, having spoken at Second Reading, I think that it would be pretty feeble just to walk away and not put

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on record my feelings about the amendment. I shall be very sad if my noble friend is not in some way able to meet them, because I have the highest regard for him and all the responsibilities that he carries so cheerfully and willingly on our behalf. I regard myself as one of the firmest supporters of the Government, but I can put it no other way than to say that I am very sad to find myself in this predicament this evening.

Lord Avebury: Your Lordships might be interested to hear a story which I am about to tell of a person who had his DNA taken when he had no criminal record. Having gone through the immigration process at Heathrow Airport-he was a British citizen-he was stopped by Special Branch on the land side, taken aside, detained and made to give a sample of his DNA and fingerprints. When I was asked to assist him in getting the samples removed from the database, I wrote to the relevant Minister in the Home Office and was told there was a procedure whereby one could appeal to the relevant chief officer of police for a special review. I wrote to the chief officer of the Metropolitan Police; I gave him the details of what had happened and asked him to conduct a review. After a while, he wrote back and said that he was not the chief officer concerned because he did not deal with Special Branch cases. I therefore had to write another letter to a different chief officer of police.

To cut a very long story short, it took 14 months for that review to take place, during which the man concerned had, as noble Lords have said, a stigma hanging over him because his samples were taken on the database. People would say, "Well, surely he must have been guilty of something if they felt so certain that the DNA was required to be kept in this way". I subsequently discovered that only three people had been successful in making a special appeal and getting DNA samples removed from the database. Everything that has been said about the violation of our human rights and the ignoring of the European Court is reinforced by what one knows about these cases.

I sincerely hope that the Minister will pay close attention to the amendment and, if not agree to it, at least guarantee that we will take steps to bring ourselves into conformity with our commitment to European human rights legislation.

Baroness Neville-Jones: My Lords, the retention, destruction and use of DNA samples have been the subject of much debate over several years. The controversy has centred on the indefinite retention of the DNA profiles of those who have committed no crime or who have been cleared of allegations against them, which has been found to be illegal. We on these Benches, with others, have successfully pushed the Government to end the permanent retention of innocent people's DNA. Hence we now have these government proposals in the Bill.

I said at Second Reading that we still preferred the Scottish model, under which the state would retain for a limited period of three to five years the DNA profiles of those not convicted of an offence only in circumstances where charges relating to a crime of violence or of a sexual nature had been brought. The Home Secretary says that the police in Scotland do

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not think that their model works well; the Minister said the same thing when we last debated this matter. However, this is not borne out by the evidence, which shows that the Scottish system has a higher detection rate than that in England and Wales. Moreover, Labour Members of Parliament supported the Criminal Procedure (Scotland) Act 1995 which put that system in place. I therefore beg leave to take issue with those who claim, as the Home Secretary has done, that to take the Scottish system seriously is not to take the issue seriously.

The problem is that we are out of time for proper discussion, so we have to look at the essentials. First, we now have cross-party acceptance of the principle that the indefinite detention of the DNA profiles of those who are innocent is wrong and ineffective. We need to get this principle into law. It is also a requirement of the ECHR's judgment, which we agree with and respect. Secondly, the legislation offers some control over one of the other most obnoxious features of current system, which is the postcode lottery involved in getting off the database the profiles of those who should not be on it.

At this late stage, the Liberal Democrat Benches have put forward an amendment which in some respects travels back from the rather uncompromising position that they have taken hitherto. Sadly, it is too late for proper discussion. Were we able to have that, there would be a number of changes that we would want to try to make. The amendment fails for instance to provide for getting on to the database the profiles of those who have been convicted of criminal offences but who have never been put on it. There are a significant number of people who should now be on that database, if we regard the database as being a way of usefully detecting crime.

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