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The position of my party is absolutely clear. We do not resile from the view that the entire system needs to be overhauled, not piecemeal but systematically. A Conservative Government if in office will do the following: they will legislate in the first Session to make sure that the DNA database includes permanent records only of people who have been convicted of an offence and, for a more limited period, those charged with sexual or violent offences. Secondly, we will focus efforts on collecting the DNA of all existing prisoners, those on probation, on licence or in prison or under the supervision of the criminal justice system, which the Government have failed to do. Thirdly, we will introduce new guidelines so that those wrongly accused of minor crimes and who have volunteered their sample have an automatic right to have their DNA removed from the database-one thing that this House most strongly objects to. It is not about one party being soft on crime and one party being tough on crime, as the Home Secretary said; that is absolute nonsense. We all agree that DNA is an important and useful tool. The issue is one of creating a DNA database that works and that has public trust, given that detections have fallen although the number of profiles has ballooned. This is a point that should not be missed. In fact, the prison system is not working very well because, although we have increased numbers put on it, the actual number of detections is falling.



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Systematic reform is needed and a new approach focused on the guilty and on those who pose most risk. This is a fundamental root-and-branch change that we will not achieve today but which must be achieved by a new Government. For now, we take the view that it is important that we have in law acceptance of the proposition that the indefinite retention of innocent people's DNA is unacceptable and illegal.

8 pm

Lord West of Spithead: My Lords, I certainly did not understand wash-up before, and I am still not sure that I do understand it. However, it seems to me to be an agreement between the main parties about finding a way ahead, so I was rather taken aback by the noble Baroness, Lady Neville-Jones, listing a great long list of proposals for what is intended to be done. My understanding was that it was only because of an agreement that this has come through-but clearly I have been taken flat aback on that one and do not understand what is going on. But that was my understanding of it.

In any event, as has been said, the proposed amendments would replace our proposal with a variant of the Scottish retention model. It was discussed, of course, in the other place, where it was pressed to a Division and defeated by some 79 votes. As the Committee will be aware, Scotland has a very different approach to the retention of fingerprints and DNA from the one that the Bill proposes. The Scottish model is that DNA samples and resulting profiles must be destroyed if the individual is not convicted or granted an absolute discharge, and DNA may be retained for those not convicted only if they are suspected of certain sexual or violent offences, when it may be retained for three years. That can be extended at perhaps two years at a time with the approval of a sheriff. While there was some support for the Scottish retention model during the Bill's earlier stages in the other place, it should be noted that the Scottish Executive, as with so many other things that the Scottish Executive do, arrived at their model with no research whatever. It was just plucked out of the air. The model also has significant operational limitations. As the noble Baroness, Lady Neville-Jones, says, it is not just the Government's view that the Scottish model poses problems for the police; the Scottish Association of Chief Police Officers said in February 2008:

"Our position is that we should move into line, after discussion with Scottish Government, with England and Wales and DNA samples should be taken and retained under strict guidelines from offenders. We are in favour of mirroring any legislation in the UK Parliament allowing the taking and retention of DNA samples from persons arrested for an offence".

It is interesting to note the talk about higher detection rates in the Scottish example. That is not the case. The Scottish DNA database does not have a higher success rate. The figures quoted on one occasion look at 2005-06 figures and do not compare like with like. The latest like-for-like data, from 2008-09, show that the England and Wales database has a 13 per cent higher success rate than Scotland, so the Scottish Association of Chief Police Officers is correct and our system is somewhat better.



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More significantly, consideration also needs to be given to the underlying principal question in this amendment of whether the biometric data of those not convicted of an offence should be treated differently depending on the nature of the offence under investigation. Potentially, that could create different levels of innocence, depending on what it is that someone has not done. We propose a single retention period regardless of the seriousness of the offence for which a person has been arrested. The best available evidence indicates that the type of offence for which they are first arrested is not a good indicator of the seriousness of the offence that he or she might subsequently commit. The Scottish model, proposed in the amendment, therefore risks missing many detections of serious offences due to the nature of the offence originally under investigation. For example, in 2008-09 alone, there were at least 79 rape, murder or manslaughter cases in England and Wales that were matched to the DNA database from DNA profiles that belong to individuals who had been arrested but not convicted of any crime. Of that number, in 36 cases the matches were found to have had a direct and specific value to the investigation. If we had applied the Scottish retention regime and retained DNA profiles only from those arrested but not convicted of a serious crime, at least 23 victims of the most serious crimes, and of course their families, could have been denied justice last year alone.

In the light of the above, and as the retention of DNA is not punitive but a measure to facilitate the detection of future offences, we believe that a single retention period is the correct way forward. Indeed, on the point of it not being punitive, a number of speakers have talked about being on the database as being a stigma. I believe that it is a stigma only if people know that someone is on the database. I personally have no concern about being on it. Almost nobody knows that someone is on the database. It is a stigma only if someone knows that you are there.

On the Motions that Clauses 14 to 23 should not stand part of the Bill, I point out that if these Motions were carried we could be no further forward than we were at the beginning of last year. We would still be in breach of the European Court's ruling, as a number of noble Lords have said, and we would not have a legislative framework for the retention of DNA profiles and fingerprints. We consider that our DNA retention proposals represent an appropriate balance between public protection and protecting individuals' rights and liberties, based on the best available research. We also believe that it will meet ECHR requirements and the ECHR judgment. While some have criticised elements of our research evidence, I remind your Lordships of the key points that the evidence points us to. We can justify retaining the DNA of people who have been arrested but not convicted while the risk of offending is higher than that of the general population. Our analysis suggests that that risk, as measured by the risk of rearrest, is higher than the general population for six years following the first arrest. While arrest is only a proxy indicator of the risk of offending, the nature and volume of data currently available to us mean that a more precise arrest/conviction analysis is likely to be less reliable. Yes, we can do more work, but at least we have done some analysis, unlike under the

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Scottish system. The precise length of time to equalise the risk may vary in either direction due to the uncertainties in the analysis and data. On balance, these uncertainties are more likely to extend the time that it takes for these risks to be equal, which would argue in fact for a longer retention period. But we must do analysis and look at this in much more detail.

The noble Earl, Lord Onslow, referred to samples being taken from volunteers. Those samples can and must be removed from the database on request, and DNA from a volunteer is put on the database only in very exceptional circumstances, at the explicit request of the volunteer.

Ultimately, the evidence can only go so far to answering the question of what is an appropriate retention period. When there are statistical uncertainties around the estimate, the final decision must be one based on judgment-it is not precise yet-and not evidence alone. But we are trying to build up more evidence to get a better database. That is how we arrived at a retention period of six years, the point at which our research tells us that the risk of rearrest returns to the risk of arrest in the general population. We consider that our proposals are a cogent and considered package and represent a huge change from the situation as it stands, as was touched on by the noble Baroness, Lady Neville-Jones, taking us from a blanket indefinite retention, whereby innocent and guilty are treated alike, and whereby DNA profiles are kept as long as DNA profiles-two finite periods based on research and differentiating between different categories of individual. We further believe that the safeguards outlined in Clause 23 relating to the national DNA database strategy board provide sufficient scrutiny and oversight of the process and will result in clear and consistent guidance being issued in future on the destruction and deletion of profiles. A number of speakers touched on that point.

I am particularly disappointed that, after all the consensual work done in the other place to put into place a new role for the strategy board, noble Lords wish to remove Clause 23. I also put on record my gratitude to the official Opposition for agreeing, as part of the wash-up, that our proposed retention framework should be put on the statute book. That agreement means that we can bring an end to the somewhat protracted process of responding to the judgment of the European Court, giving some certainty to both the police service and the public at large that biometric data will be held under a specific and detailed statutory regime. On that basis, I ask that Amendment 2 be withdrawn and that Clauses 14 and 23 should stand part of the Bill.

Baroness Hamwee: My Lords, I am very grateful to those noble Lords who have supported my amendment and my opposition to certain provisions in the Bill. I hope that they will forgive me if, in the interests of time, I do not go through all the points that they made. The Minister said that he still does not understand wash-up; he had thought that only what was agreed went forward. He said that after listening to the noble Baroness, who seemed to be opposing the Government's proposals. All I would say is: indeed.



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On having no research of the Scottish model, the Home Office research, by all accounts, seems to have been-what can I say?-a bit dodgy. It is certainly not as substantial or as useful as those looking for a solution to all of this would want to find. I understand, of course, that the police want the most extensive tools possible. The Minister talked of detection rates; my response is that the Home Affairs Select Committee, in one of its conclusions to the report that it published only recently, on 8 March, said:

"It is currently impossible to say with certainty how many crimes are detected, let alone how many result in convictions, due at least in part to the matching of crime scene DNA to a personal profile already on the database, but it appears that it may be as little as 0.3%".

It went on that,

Yes, the Government are proposing a single retention period-but one which is too long.

The noble Lord gave examples of where DNA has been used to solve crimes. We all know about hard cases and bad law. As I have said, the general view is that there is a poor evidence base for what is proposed. He said that if the clauses do not stand part of the Bill, we will be no further forward in responding to the European court. Indeed, that is absolutely my point; it would then be necessary to reconsider the matter.

For the Conservatives, the noble Baroness says that we are out of time for proper discussion, that it is too late for that and, in effect, that the amendment-she did not use this word-is inadequate. I thought that I could have done no better than using the Conservatives' own amendment. If it is inadequate-in my view it would be a compromise, but one which I hoped would take the noble Baroness and her troops with us-better to start from the inadequate than the bad. The Conservatives, if they do not support these Benches on these amendments, must accept responsibility along with the Government for the bad. I wish to test the opinion of the House.

8.14 pm

Division on Amendment 2

Contents 53; Not-Contents 159.

Amendment 2 disagreed.


Division No. 2


CONTENTS

Addington, L. [Teller]
Alderdice, L.
Alton of Liverpool, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Chidgey, L.
Clement-Jones, L.
Dholakia, L.
D'Souza, B.
Erroll, E.
Falkland, V.
Finlay of Llandaff, B.
Garden of Frognal, B.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Jones of Cheltenham, L.
Kennedy of The Shaws, B.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Livsey of Talgarth, L.
Maclennan of Rogart, L.
McNally, L.


7 Apr 2010 : Column 1555

Maddock, B.
Mar and Kellie, E.
Miller of Chilthorne Domer, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Loan, B.
Palmer, L.
Phillips of Sudbury, L.
Razzall, L.
Rennard, L.
Roberts of Llandudno, L.
St. John of Bletso, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Tyler, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Wilson of Tillyorn, L.

NOT CONTENTS

Andrews, B.
Anelay of St Johns, B.
Archer of Sandwell, L.
Astor of Hever, L.
Attlee, E.
Bach, L.
Bassam of Brighton, L. [Teller]
Bates, L.
Best, L.
Bilston, L.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Bridgeman, V.
Brooke of Alverthorpe, L.
Brooke of Sutton Mandeville, L.
Brookman, L.
Brooks of Tremorfa, L.
Butler-Sloss, B.
Byford, B.
Campbell-Savours, L.
Cathcart, E.
Christopher, L.
Clark of Windermere, L.
Clinton-Davis, L.
Colwyn, L.
Cope of Berkeley, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
De Mauley, L.
Dubs, L.
Elder, L.
Elton, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fookes, B.
Forsyth of Drumlean, L.
Foster of Bishop Auckland, L.
Freud, L.
Gale, B.
Gardner of Parkes, B.
Geddes, L.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goodlad, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greenway, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hanham, B.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Henig, B.
Henley, L.
Hilton of Eggardon, B.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howarth of Newport, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Inglewood, L.
Jones of Whitchurch, B.
Jordan, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Lea of Crondall, L.
Luke, L.
MacGregor of Pulham Market, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mancroft, L.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Mayhew of Twysden, L.
Montrose, D.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Bolton, B.
Morris of Handsworth, L.
Morrow, L.
Neville-Jones, B.
Nicholson of Winterbourne, B.
Noakes, B.
Northbrook, L.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Clackmannan, L.
Onslow, E.
Paisley of St George's, B.
Patel of Blackburn, L.
Pendry, L.


7 Apr 2010 : Column 1556

Perry of Southwark, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Quin, B.
Rawlings, B.
Richard, L.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Seccombe, B.
Selsdon, L.
Sewel, L.
Sheikh, L.
Shrewsbury, E.
Slim, V.
Soley, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Taylor of Holbeach, L.
Thornton, B.
Tomlinson, L.
Trefgarne, L.
Trenchard, V.
Tunnicliffe, L.
Verma, B.
Waddington, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Waverley, V.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilcox, B.
Wilkins, B.
Williamson of Horton, L.
Young of Norwood Green, L.
8.25 pm

Clauses 14 to 33 agreed.

Clause 34 : Grant of injunction: minimum age

Debate on whether Clause 34 should stand part of the Bill.

Baroness Hamwee: My Lords, I have given notice that from these Benches we oppose Clauses 34 to 39 standing part of the Bill. We gave notice that we also oppose Clause 38 but somebody seems to have dropped it from the Marshalled List in hope. The Minister will not be surprised that I am speaking against all these clauses as a group.

At Second Reading the noble and learned Lord, Lord Lloyd of Berwick, spoke powerfully against what he called,

He was talking about little bits of criminal law which apply only to the individual who is the subject of an injunction, and not universally, and drawing your Lordships' attention to the fact that breach of the injunction could lead to imprisonment. This would follow an injunction granted only on the civil standard of proof and created by magistrates and judges sitting in civil courts, with little idea of how what an injunction says relates to the criminal law as a whole.

The gang injunction provisions were introduced in the Policing and Crime Act 2009, which received Royal Assent less than five months ago-only a week before this Bill was introduced in the Commons, extending the provisions to those aged under 18. Clauses 34 to 39 must have been drafted well before Royal Assent of the 2009 Act. However well that legislation for those aged over 18 was thought through, there has not been an opportunity to consider its application, assess practice or review the results. There are, I understand, similar injunctions in place and available in the United States, but I am told that they have been ineffective or even counterproductive there, leading to discrimination and stigmatisation of innocent minority ethnic young people. It is not possible even to begin to consider the position here in practice given the very swift movement of

7 Apr 2010 : Column 1557

events. Indeed, I do not believe that there was even public consultation in 2009. The gang injunction provisions were not included in the Policing and Crime Bill as originally introduced.

An injunction may be granted if the court is satisfied on the civil standard of proof that a person is engaged in, or encouraged, or assisted group-related violence-in other words, he may never have been convicted of an offence. If he has, he will have been punished for that offence. During the passage of the 2009 Act, the Minister recognised that,

"Changing the law to enable the courts to use injunctions for under-18s would involve a major change in how civil law interacts with minors".

Quite so. A child cannot be imprisoned, so the powers are for supervision or detention orders on breach of an injunction, though it can have the effect of amounting to house arrest for up to eight hours a day, or up to three months in youth detention accommodation.

The Home Office impact assessment said that an injunction will serve the purpose of preventing acts of serious violence, breaking down gang culture and preventing younger members' behaviour from escalating, providing the opportunity for local agencies to engage with gang members and develop effective strategies for them to exit the gang. I do not quarrel with those objectives for one moment but I do quarrel with the means-yet more legislation miraculously curing society's ills. It cannot do it by itself. A child-I emphasise "a child"-involved in gang activities should be dealt with by children's services and, if necessary, the family courts, as a child in need of protection or at risk of harm. We have a specialist youth justice system. A child accused of offending behaviour should be dealt with not in the ordinary adult court but in a forum with appropriate procedures. A civil detention order goes against the UK's obligations under the United Nations Convention on the Rights of the Child that custody should be a last resort only. Short-term custody for under-18s normally includes a rehabilitative element-training as well as detention.

Many people have worked hard for many years on seeking ways to deal with young offenders. We see none of that experience coming through in what is proposed in the Bill. What is the necessity for this? There are already many civil and criminal justice measures to tackle criminal behaviour among young people and there is safeguarding legislation which can be used to protect them. Therefore, we believe that these clauses are unnecessary and not thought through. They blur the distinction between the civil and criminal law and criminalise children. They are bad. We oppose the clause.

8.30 pm

Lord Lloyd of Berwick: My Lords, I rise to support the measure proposed by the noble Baroness. She referred to the observations of the Minister in the other place in which he said that to include the under-18s in the 2009 Bill would have involved a major change in the relationship between the civil courts and those under 18. Yet here we are, less than a year later, being asked to make just such a major change without any consultation of any kind in the mean time.



7 Apr 2010 : Column 1558

I suggest that the Government had their opportunity to include the under-18s in 2009. They did not take that opportunity for reasons which seemed good to them then and it is far too late for them to have a second bite at the cherry now. On that simple ground, I support the noble Baroness. But there is, of course, a wider ground on which I must touch. It was touched on earlier in the day and made memorable by the speech of the noble Lord, Lord Rooker, although I am not sure that I entirely agreed with his solution. The question is whether it can ever be right to include provisions such as these in the wash-up. I think we all agree that there may well be cases where the wash-up serves a very useful purpose. It may yet prove to have served a very useful purpose in relation to the constitutional reform Bill if Part 1 can be salvaged, as I hope that it will be. We are told that the wash-up has been around for 100 years, but things have changed since then. What has changed above all is the scale on which the wash-up is now used. The noble Lord, Lord Tebbit, touched on that point. In the old days, the wash-up covered perhaps one or two single-purpose Bills. Now it covers three or four multi-purpose Bills. In those circumstances, it simply does not work. I submit that it is a misuse of the whole process, which could easily degenerate into something a great deal worse.


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