Criminal Justice and Police Bill
Lord Williams of Mostyn (Attorney General, Law Officers' Department; Labour)
My Lords, I am grateful to the noble Lord, Lord Cope of Berkeley, for his remarks. This provision is not a short-term remedy; nor has it been proposed without consultation. As your Lordships will remember, as long ago as July 1999, the Home Office published a consultation document, Proposals for Revising Legislative Measures on Fingerprints, Footprints and DNA Samples. That document formed the basis for some of the measures contained in the Bill. That was a fair while ago, and it is not right to assume or to mis-remember what happened in another place. The provisions relating to fingerprints and DNA samples were debated at length at all stages, including in Committee, in the Commons. However, I listened carefully to what was said in the debate last night. Some points were plainly of deep concern to those who made them. In saying that, I do not take away from the concerns; nor do I accept that the concerns are necessarily valid. In respect of the database, to which the noble Lord, Lord Phillips of Sudbury, referred, I said yesterday in answer to him and my noble friend Lady Kennedy of The Shaws that I was able to give a commitment to a long-term review of improving the security and efficiency of the database.
However, I know that there are concerns among your Lordships that are not partisan; and, indeed, not entirely complimentary, although I gratefully received the bouquet from the noble Lord, Lord McNally. I always wanted to be an actor, and I believe that Donald Pleasence was rather a good one. I should like to spend a few moments on the issue because we need to remember what these clauses are talking about. They are talking about the retention of all fingerprints and samples taken on suspicion of involvement in a criminal offence. The purposes for which they can then be used--it is worth looking at the text of the Bill--are specifically restricted: the prevention and detection of crime, the investigation of an offence and the conduct of a prosecution. They cannot lawfully be used for any more devious purposes. I almost said "sinister"; but perhaps I should use "devious" as the adjective. They can be used only to prove or disprove involvement in crime.
We are not seeking to extend the powers to take fingerprints or other samples; we are seeking only to retain those that have been lawfully taken. These are extremely important aspects. I believe that the noble Lord, Lord Cope of Berkeley, is right to point out that one is capable of generating by these modern procedures evidence of extremely high "objective" quality. I do not apologise for using that word again. It is much more potentially capable of being reliable, objective evidence than, for example, the eye-witness identification made by the honest, apparently trustworthy and reliable witness who, although honest and apparently trustworthy, experience has commonly shown us can be plainly mistaken.
The proposed changes about retention were made necessary as a result of the decisions of the Court of Appeal Criminal Division in the cases of the Crown against Weir and the Crown against B, under the Attorney-General's reference No. 3/199. Those cases put into stark focus--I do not apologise for those words because they are a moderate description of what occurred--whether or not our law was coherent, comprehensible or justifiable on the retention of samples in those cases. I should remind noble Lords who did not have the benefit of being present in Committee last night, or the opportunity fully to read the Hansard report of the proceedings, that in those cases there was compelling, objective evidence of, in the words of the noble Lord, Lord Cope, "high quality" that linked one defendant to a rape and a second defendant to a murder. If that is to be called "playing the populist card", I believe that to be fundamentally mistaken as a description.
It was originally held that that evidence of high objective scientific quality, which was capable of being extremely reliable, had to be excluded from the jury. Why? It was because both defendants, having given their original DNA samples, had either been acquitted or not proceeded against. The Court of Appeal ruled that material to be not admissible. If it is a sensible principle of criminal jurisprudence--I contend that it is--that cogent, probative evidence of high quality ought to be admitted, then, with great respect, those decisions caused some surprise.
The subsequent decision of the House of Lords overturned the ruling of the Court of Appeal and, therefore, the contention made by and on behalf of the Attorney-General succeeded. The House of Lords ruled that where a DNA sample fell to be destroyed because of Section 64 of the Police and Criminal Evidence Act 1984 but had not been, it did not make evidence obtained as a failure to comply with that prohibition inadmissible. The Joint Committee on Human Rights, which I know is only just starting what I hope will be extremely important and influential work, commented:
"This has the curious result"--
understatement is always a pleasure to study--
"that the police are under a legal duty to destroy material, but are able to use it as evidence if they breach their duty by keeping it".
The Bill's proposals in these two linked clauses seek to put right that anomaly.
The ruling of the Judicial Committee of the House of Lords allows the court a discretion to use the information, but that only affects cases where by chance, inadvertence or inefficiency the samples have been kept. I am most grateful for the support received from the Opposition Front Bench in this respect. The Government's view is that the evidence should not be discarded and that the police should be able to make use of that valuable and objective evidence. In my view, once it is acceptable that prints and samples should be able to be retained and properly used in the defence of individual liberty, which has been attacked by criminals if they are proved to be such, it is a proportionate use of the power of society to enforce the protection of the individuals who compose it.
A further worry expressed last night related to the retention of samples that were given voluntarily. Being an optimistic creature, I shall say this now for the last time: the samples can be retained only if there is written consent to the retention given by the person providing the sample. We believe that these are legitimate weapons in the structured armoury of a civil state response. I recognise that the concerns expressed were not raised on the basis of party point scoring; indeed, I do not believe that anyone on either side thought that any of us was indulging in that last night.
Obviously, I have given a good deal of thought to the expression of view that was encapsulated quite briefly and economically by the noble Lords, Lord McNally and Lord Phillips. I hope that they will accept the following suggestion as being constructive. Bearing in mind the concerns expressed, I believe that I ought to be able to give a commitment--I have authority to do so--that this whole matter will be subject to a review when five years' experience has been had. I am able to give that commitment. I am not pretending that everything about the present state of the law is perfect. However, what I do assert without any doubt at all in my mind is that we must get the law right in this particular context.
I made my commitment to the long-term review of the database in what I accept was a less specific form to the noble Baroness. I believe that both she and the noble Lord, Lord Phillips, accepted it as being a constructive approach. This commitment is deliberately more focused because I listened carefully to what noble Lords said. I hope that they will recognise that I am not playing any sort of card. I am trying to meet legitimate concerns that were conscientiously expressed and to balance and marry those with the views advanced by myself on behalf of the Government and by the noble Lord, Cope of Berkeley, on behalf of the Opposition Front Bench.