New Clause 1 — Destruction of samples etc: England and Wales

Commission for the Compact – in the House of Commons at 4:19 pm on 19th May 2009.

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'(1) Section 82 of the Criminal Justice and Police Act 2001 is repealed.

(2) Sections 9 and 10 of the Criminal Justice Act 2003 are repealed.

(3) After Section 64A of the Police and Criminal Evidence Act 1984 (c. 60) insert—

"64B Destruction of fingerprints and samples etc

(1) After a person is released without charge or acquitted of the offence for which a sample has been taken that sample shall be destroyed within one month of the fingerprints or samples being taken or the person being acquitted, unless the offence was of a violent or sexual nature.

(2) If the offence was of a violent or sexual nature that sample must be held for a period of three years, after which it must be destroyed.

(3) This section applies to the following material—

(a) photographs falling within a description specified in the regulations,

(b) fingerprints taken from a person in connection with the investigation of an offence,

(c) impressions of footwear so taken from a person,

(d) DNA and other samples so taken from a person,

(e) information derived from DNA samples so taken from a person.

(4) For the purposes of this section—

(a) "photograph" includes a moving image, and

(b) the reference to a DNA sample is a reference to any material that has come from a human body and consists of or includes human cells."'.— (Chris Huhne.)

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

With this it will be convenient to discuss the following:

New clause 2— Destruction of samples etc: service offences

'(1) Section 113 of the Police and Criminal Evidence Act 1984 (c. 60) (application to armed forces) is amended as follows—

(2) After subsection (1) insert—

"(1A) After a person is released without charge or acquitted of the offence for which a sample has been taken that sample shall be destroyed within one month of the fingerprints or sample being taken or the person being acquitted, unless the offence was of a violent or sexual nature.

(2) If the offence was of a violent or sexual nature that sample must be held for a period of three years, after which it must be destroyed."'.

New clause 3— Destruction of samples etc (Northern Ireland)

'(1) That Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/3141 (N.I 12)) is amended as follows—

(2) After Article 64A insert—

"Destruction of samples etc

"(1) After a person is not charged or acquitted of the offence for which a sample has been taken that sample shall be destroyed within one month of the fingerprints or samples being taken or the person being acquitted, unless the offence was of a violent or sexual nature.

(2) If the offence was of a violent or sexual nature that sample should be held for a period of three years, and then be destroyed.

(3) This section applies to the following material—

(a) photographs falling within a description specified in the regulations,

(b) fingerprints taken from a person in connection with the investigation of an offence,

(c) impressions of footwear so taken from a person,

(d) DNA and other samples so taken from a person,

(e) information derived from DNA samples so taken from a person.

(4) For the purposes of this section—

(a) "photograph" includes a moving image, and

(b) the reference to a DNA sample is a reference to any material that has come from a human body and consists of or includes human cells."'.

New clause 31— Retention of voluntary samples etc.

'(1) That the Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.

(2) After section 64(1A)(b) insert—

"(c) any other provision in this Part does not prohibit or restrict their retention or require their destruction.".

(3) For section 64(3AC) substitute—

"3AC Retention of voluntary samples etc.

Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention—

(a) that sample need not be destroyed under subsection (3) above;

(b) subsection (3AB) above shall not restrict the use that may be made of the sample or of any information derived from it; and

(c) that consent shall be treated as comprising a consent for the purposes of section 63A(1C) above; provided that—

(1) No sample or information derived from any sample may be retained on any child under the age of 10 years; and

(2) 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 sample and any information derived therefrom shall be destroyed as soon as possible following receipt of such written application."'.

New clause 32— Retention of samples following arrest

'(1) The Police and Criminal Evidence Act 1984 (c.60) is amended as follows.

(2) After section 64A insert—

"64B Retention of samples

(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has been given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.

(2) Subsection (1) above shall not apply—

(a) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person; or

(b) where the person is cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence in connection with the decision not to institute criminal proceedings or following the withdrawal or cessation of criminal proceedings; or

(c) where sections 64C or 64D apply.

(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of the (1) the lapse of any applicable appeal period and (2) a decision is made not to appeal such proceedings.

64C Retention of samples etc (violent and sexual offences)

(1) This section applies where any sample has been taken from a person under this Part where criminal proceedings were instituted against such person in respect of a sexual offence or violent offence and such proceedings concluded otherwise than with a conviction or with the person being cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence.

(2) Subject to subsections (6) and (7) below, the sample and any information derived therefrom shall be destroyed no later than:

(a) 3 years following the conclusion of the proceedings ("the initial retention date"); or

(b) such later date as may be ordered under subsection (3).

(3) On application made by a chief officer of police within the period of 3 months before the initial retention date, 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 sample and any information derived therefrom.

(4) An order under subsection (3) shall not specify a date more than 2 years later than the initial retention date.

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

(6) Subsection (2) does not apply where—

(a) an application under subsection (3) above has been made but has not been determined.

(b) the period within which an appeal may be brought under subsection (5) above against a decision to refuse an application has not elapsed; or

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

(7) Where—

(a) the period within which an appeal referred to in subsection (5) 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 (2), the sample and any information derived therefrom shall be destroyed as soon as possible thereafter.

(8) For the purposes of this Part 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.

64D Retention of Samples - Residual Power

(1) On application by a chief officer of police, the Crown Court may make an order requiring the retention of a sample taken from a person and any information derived therefrom in circumstances where such a sample and any information derived therefrom would otherwise be required to be destroyed if it has reasonable grounds to believe that:

(a) there is a serious risk of harm to the public or a section of the public; and

(b) such retention would prevent, inhibit, restrict or disrupt involvement by the person in the commission of a sexual offence or violent offence.

(2) An order under this section is not to be in force for more than 5 years beginning with the date of the commencement of the order.

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

(4) Where an application has been made for an order under this section, the relevant sample and any information derived therefrom shall not be destroyed until such application and any appeal thereof has been determined.

(3) At end of section 113(1) insert—

"provided always that the protections in Part 5 relating to the retention of samples and any information derived therefrom shall also be applied to persons investigated or under arrest under such Acts.".'.

Amendment 28, page 116, line 16, leave out Clause 95.

Government amendment 112.

Amendment 29, page 117, line 32, leave out Clause 96.

Amendment 30, page 118, line 3, leave out Clause 97.

Government amendment 113.

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Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary

These new clauses and amendments address the issue of the retention of fingerprints and other DNA samples stored on the police national database, and seek to fulfil two purposes. Amendments 28 to 30 would seek to remove clauses 95 to 97. New clauses 1 to 3 then replace the current rules on the retention of DNA samples with our preferred alternative. We believe that this is both legal in the eyes of the European Court of Human Rights and the Human Rights Act 1998, and puts liberty, respect for a private life, and the presumption of innocence at the heart of the rules.

The UK has the largest DNA database in the world; it is far larger than its American equivalent. It contains records from more than 4 million British citizens; 1 million of those people have no record on the police national computer, and 1 million were added as children. Almost one in two of all black men are on the database. This has been not so much a policy—that would have entailed some systematic attempt to collect DNA—but a random accretion of profiles from anybody who happens to run into the police.

On 4 December last year, the European Court of Human Rights ruled that the retention of the DNA samples of two men—S and Marper—was illegal, and that it violated their right to a private life. The ruling stated that the judges were

"struck by the blanket and indiscriminate nature of the power of retention in England and Wales".

They ruled that

"the retention in question constituted a disproportionate interference with the applicants' right to respect for private life and could not be regarded as necessary in a democratic society".

That is a damning indictment of the Government's policy on DNA retention, and serves to highlight the Government's dangerous and illegal obsession with massive, Big Brother-style databases, whether for DNA, e-mails and phone calls, or biometric data collected for ID cards. A report by the Joseph Rowntree Reform Trust concluded that out of 46 databases examined, one quarter were almost certainly illegal, as the existing DNA database has been found to be, and fewer than 15 per cent. of those assessed were effective, proportionate or necessary.

The effectiveness of this random accretion in the DNA database is itself highly questionable. Figures have shown that despite the huge increase in the number of profiles on the database—from 2.1 million in 2002 to 5.6 million at the last count—the number of detected crimes in which a DNA match was available has fallen from 21,098 to 17,614 last year. Ministers have failed to produce any respectable peer-reviewed research that supports their case for this random increase in the collection of DNA samples and profiles—indeed, size is, in itself, problematic, as it makes the data more unwieldy in finding matches. Ministers like to say that DNA is essential in detecting crime, and of course it is, but the most significant application of DNA testing is when DNA is found at the scene of a crime and can then be matched with a suspect. That process will continue, and it should do, but what should not continue is the topsy growth for no reason in the number of samples and profiles added to the database.

Given the weight of evidence in favour of reform of the DNA database, the Government have signally failed to justify their current proposals. I am forced to conclude that Ministers are putting forward what they believe to be the absolute minimum that they can get away with before the European Court, while hoping that campaigners will not mount any further legal challenges. I think that Ministers will be proved wrong; to hold records for six years on people charged with or convicted of no crime, and to hold them for 12 years on those arrested for serious offences, makes a mockery of the presumption of innocence that has been fundamental to our law for centuries. There is no evidence that such a lengthy retention period is proportionate, necessary or effective.

Despite the extremely sensitive nature of these issues, the Government are essentially asking us to defer all serious decisions to statutory instruments that will be introduced at a later stage—there would then be no requirement even for a debate on the Floor of the House. The House backs far too many, "I'm a Minister, trust me" clauses in any case, but it should certainly not accept their use in this important matter—to do so would frankly be an outrage. This is an issue of national significance and national debate that potentially affects the human rights of millions of people, and it should be addressed only through primary legislation. Ministers will say that time was pressing, consultation periods are long and that what they propose is the only practical way of dealing with the issue, but that is nonsense. We have a precedent for a tailor-made, one-purpose Bill in respect of the Criminal Evidence (Witness Anonymity) Act 2008, which was also drafted in response to a court judgment and commanded support from all parts of the House.

The Government should not be allowed to get away with passing legislation that has not been subject to proper scrutiny in this House—we heard in the programme motion debate how little scrutiny the Bill received in Committee. Their manoeuvring with consultations and the use of secondary legislation is simply unacceptable, given the seriousness of the issue. We, on the Liberal Democrat Benches, along with Members from all parts of the House, have signed amendments to remove the DNA provisions from the Bill and we will certainly push them to a vote.

Let me turn to our proposed alternative. We propose a similar system to that which has worked so well in Scotland. When we were in coalition in the Executive in Scotland, my Liberal Democrat colleagues in the Scottish Parliament led the charge to introduce less Orwellian rules for Scotland than those currently in place in England, Wales and Northern Ireland. The Scottish provision allows that any samples and profiles taken, voluntarily or otherwise, from somebody who is subsequently released without charge or acquitted of an offence should be destroyed within one month. However, if an offence was of a violent or sexual nature, a sample can be held for up to three years—we propose that the same period apply.

There is a legitimate debate to be had over the length of time that retention is acceptable in the cases of those arrested for serious violent or sexual offences. The Government propose to set this limit at 12 years, whereas the Scottish system sets it at three years, as in our new clauses, but allows for a possible two-year extension. The Conservatives' proposals are similar, but we part company with the official Opposition where they allow for a blanket application to retain samples and profiles for up to five years after an arrest for any offence because we believe that to be disproportionate and to depart from the spirit of the Scottish legislation.

To my mind, the Government's proposals—and, I am afraid to say, those of the Conservatives—do not get the balance right between liberty and the prevention and detection of crime. If there was evidence that the retention of samples for five years or 12 years was significantly more effective in preventing or detecting future crimes, there would be a case to be weighed in the balance, but we have not heard that case from the Government. It is my belief that we should err on the side of the tried and tested principles of British justice, respected as they are and will continue to be north of the border. The presumption of innocence is a cornerstone of our judicial system and must be protected. Our provisions would adequately roll back these intrusive and illiberal powers, while recognising that DNA is an important crime fighting tool and that the taking of samples during investigations must continue. Our proposals get the balance right, and I commend them to the House.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee 4:45 pm, 19th May 2009

I have a great deal of sympathy with Chris Huhne, who based his arguments on the system in Scotland, which offers us an example of what can be done. I feel—this prompted my intervention during the discussion on the programme motion—that this serious and important area of policy deserves a proper debate in the House, rather than the time that we have allocated for this debate.

The Government are reacting to a judgment of the European Court of Human Rights. When the judgment was made, the Home Secretary made a statement to the House at the end of last year. Several months passed before the Government decided what their new policy would be. The Government have not met the fundamental objection to holding the DNA of innocent people on the DNA database. Either someone has committed an offence, or they have not. If they have not committed an offence, it is fundamentally wrong that their DNA should be retained on the database. If it is retained, as the Government hope, and an arbitrary figure, such as six years or 12 years, is chosen—I am not sure why those periods were chosen—the worry is that if that arbitrary figure cannot really be justified, it goes against the whole argument in changing the principle.

When this matter has been raised in the House on numerous occasions, Ministers have said that we need to retain the DNA of individuals in case they commit criminal offences in the future. Ministers have given many examples of the retention of DNA over one issue resulting in people being arrested or imprisoned for another issue several years afterwards. They come to the House with legitimate arguments and evidence to support their view, but I think that that is evidence in support of an even bigger database—the mother of all databases—on which would be retained the DNA of every individual in this country. Either we should have it for everybody, or we should retain only the DNA of those who have been convicted of an offence. The retention of DNA on the presumption that people who are in trouble over one issue will get into trouble over another because they have some kind of criminal tendency is, I think, wrong. That is the problem with the Government's argument—it is the fundamental flaw that they have in trying to address the proper ruling of the European Court of Human Rights. The suggestions made by the hon. Member for Eastleigh deal with that point.

I hope that when the Minister comes to reply he will be able to tell us that the DNA samples of children—of all children—have now been removed from the database. The Minister for Security, Counter-Terrorism, Crime and Policing is nodding, but I give the Under-Secretary the opportunity to put that on the record from the Dispatch Box. I do not think that we have heard that from the Dispatch Box since this matter first came into the public domain.

Let me give an example of an innocent person who suddenly has his DNA retained. A hooray Henry—a helpful guy—goes into a pub to enjoy himself. He intervenes to prevent a fight. The police are called to stop everyone in the pub, or outside it, causing a disorder. The police take everyone in and the DNA of the person who intervened to stop the fight is retained.

One of my constituents did exactly that. He intervened to prevent a fight, was arrested, detained overnight in a police station and had his DNA taken. He had no criminal record whatever, yet his DNA was retained. Why retain his DNA? Why presume that he might commit another offence when he has an absolutely clean record and intervened only because he was trying to prevent two people from fighting? He went out to enjoy himself with his friends. He was not involved in the disorder—he tried to stop it.

A Member of the House has raised the following matter on a number of occasions. When an elderly member of his family died in suspicious circumstances, the police took the DNA of all members of the family. The hon. Gentleman tried for months—it may be years now—to get an answer from the relevant chief constable and to have his DNA removed. He came to me, as Chairman of the Select Committee on Home Affairs, and the Committee wrote to the Home Secretary to ask what was happening about the hon. Gentleman's DNA. I am not talking about Damian Green, although he too has a legitimate case for asking for his DNA back.

Why should the DNA of a Member who was not involved in any criminal activity be retained? He was not even at the scene of a crime, but happened to be related to a person who died in suspicious circumstances—although I understand that they are no longer suspicious.

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

Does the right hon. Gentleman share my concern about the example I gave in Committee? Two boys had their DNA taken because they built a tree house in a cherry tree—many people probably built tree houses when they were young. Earlier, the right hon. Gentleman asked whether children's DNA would be removed. If those boys were 15 or 16 when their DNA was taken, would their DNA be removed when they were over 18 and adults?

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I absolutely share the hon. Gentleman's concern. A particular incident could lead to DNA being retained. The House knows very well the circumstances relating to the hon. Member for Ashford, and the Select Committee recently published a report about them, although it did not mention the hon. Gentleman's DNA. However, the fact is that his DNA was taken and there would be no prospect of its being removed for six years under the Government's proposals, unless we were to make an exception for Members of the House, and in the current climate we should never be in a position to make exceptions for hon. Members. But why retain that DNA?

We know that the DNA of a disproportionate number of black and Asian people is held on the database, because if a disproportionate number of black and Asian people are stopped and searched under stop-and-search legislation there will be more DNA from people from the black and Asian community. Their DNA, too, is retained on the database. Why do the Government say that their DNA should be retained for six years or even longer because they were stopped under stop-and-search powers? There is a fundamental flaw in the Government's argument: either it is okay for everybody or it is okay only for people who have committed criminal offences.

The hon. Member for Eastleigh did not deal with the possibility of loss of data, although I am sure he would have done so if he had had the time he sought under the programme motion. Although the situation is better, unfortunately the Government were afflicted by loss of data for a period last year. I do not just blame the present Government—any Government who sought to retain so much data would be affected. The more data the Government possess, the greater the likelihood that the data will be lost, so why hold information if nothing is being done with it?

Ministers must address those issues if we are being serious about the subject. It is not that those who say that a limit is needed are against catching criminals. Of course we want to catch criminals, and we want to use everything in our power—every piece of new technology—to achieve that.

The professor of genetics who invented the way in which DNA is extracted and retained is Alec Jeffreys of the University of Leicester—one of our most eminent citizens, recently given the freedom of the city of Leicester—and he is on record as saying that he does not understand why the Government have made these proposals. He has talked about other ways in which such things can be used to aid the police and other authorities, without the retention. If our arguments are dismissed because we are not experts, I hope that the Government will listen to the expertise of none other than Sir Alec Jeffreys, who says that the Government are wrong on the issue. I know how fond Governments are of relying on experts, so the Government should take it from Alec Jeffreys, if not from us, that they need to think again.

As the Bill is going through Parliament, the view is, "Let's just stick it in the Bill, because we don't know when the next one is coming out." We have had 66 such Bills, as the hon. Member for Eastleigh said—quite a lot of Bills—and we have had almost as many immigration Bills. We need to think carefully before we adopt something that is a knee-jerk reaction, and we should not have a knee-jerk reaction, because we have known about this for seven months, so there is every reason for people to have thought about it very carefully. I hope that Ministers will reflect on the proposal before they push it through the House. I have every sympathy for the Liberal Democrat suggestion, and I hope that the Minister can reassure us that sufficient safeguards are in place.

One of the best safeguards is that, when people write in, they receive replies. In the case of the hon. Gentleman whom I mentioned, he has not had the decency of a reply from the chief constable. At the very least, there should be a robust process of challenging. It should not be exceptional; there should be a reasonable way in which people can challenge the retention. I wrote about my constituent, and I received a very flimsy reply from the custody sergeant. I expect more and better from a Government who are keen to ensure that our liberties are protected.

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Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

In Committee, I said that the Government's proposal to deal with the retention of DNA data under an order-making power was utterly unacceptable and that we would oppose it vigorously. The Government have not changed their standpoint, and neither have we. The irony was that the Committee debate was held in a vacuum: we had absolutely no idea what the Government would propose. We were simply asked to provide a blank cheque. Now that we have some more details, we do not have the time to debate them sufficiently. Therefore, it is ironic that the most scrutiny allowed for any proposed order would last an hour and a half in Committee, although these very sensitive and controversial issues need to considered carefully.

Despite the Government's promises of consultation outside the House—obviously, we hear what they say—we must wonder why the Government are seemingly prepared to debate this highly sensitive issue anywhere other than the House. The Constitution Committee of the other place recommended in its recent report, "Surveillance: Citizens and the State" that

"The Government should introduce a Bill to replace the existing regulatory framework governing the NDNAD. This would provide an opportunity to reassess the length of time DNA profiles are retained under regulatory oversight of the NDNAD."

We agree. The use, retention and destruction of DNA records and the oversight that sits behind it require detailed primary legislation in their own right, with full and detailed debate and examination in Parliament.

There is little doubt about the importance of DNA as an evidential tool in prosecuting criminals and bringing them to justice. DNA can form an important part of the evidential case to prove guilt and ensure that serious criminals are brought to justice. The fight against crime—in particular, organised crime and terrorism—depends on the use of modern scientific techniques of investigation and identification. However, as the European Court of Human Rights noted in the case of S and Marper, basic freedoms

"would be unacceptably weakened if the use of modern scientific techniques in the criminal justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests."

That frames this debate. The Government were well and truly on the wrong side of the line, and we would argue that they are still on the wrong side of the line.

This country claims a pioneering role in the development of DNA technology, and consequently bears a special responsibility in striking the right balance between public protection and the protection of personal liberties and freedoms from intrusion by the state. At the heart of that—and, I believe, the basic starting point when considering what is appropriate in terms of the retention of DNA data—is the premise that a person is innocent until proven guilty. The indefinite retention on the national DNA database of the DNA of people who have never been changed with any crime, or who have been acquitted by a court, is unacceptable in a society founded on that principle. With regard to the national DNA database as currently constituted, that presumption is reversed: a person is always regarded as potentially guilty unless shown to be innocent. Everyone on the database is regarded as a potential suspect.

Until recently, the Government took the blanket, indiscriminate approach of simply growing the database, viewing that as a good in itself—and the number of profiles on the DNA database has certainly grown, from 2.1 million in 2003 to 5.6 million by the end of March this year. The full impact of that growth becomes clear only when we break the number down by the countries of the United Kingdom. We are talking about some 4 per cent. of the population of Northern Ireland, nearly 5 per cent. of the population in Scotland, and nearly 10 per cent. of the population of England and Wales. Under the Police and Criminal Evidence Act 1984 as amended by the Criminal Justice and Police Act 2001, fingerprints and samples, including DNA samples, can be taken from anyone arrested for a recordable offence and detained in a police station. However, the Home Office has confirmed that more than 1 million people on the database have never been convicted, cautioned, formally warned or reprimanded, as recorded by the police national computer. GeneWatch UK has calculated that there are records of more than 100,000 innocent children on the database. The database contains the records of about 40 per cent. of black men in the UK, as compared to 30 per cent. of Asian men and just 9 per cent. of white men.

Despite the huge growth in profiles, the number of detected crimes in which a DNA match was available has actually fallen. Between 2002-03 and 2007-08, the number of detections fell from 21,098 to 17,614. The total number of detected crimes in which a DNA match was available or played a part, and the percentage of crimes detected in which a DNA match was available, as opposed to crimes where potential DNA material was collected, have remained static, despite the huge increase in the number of profiles. Simply growing the database has not resulted in a growth in detections. We therefore welcome the Government's acceptance that the status quo is unsustainable. The problem is that it is simply unsupportable to think that such an important issue can be remedied by ministerial edict.

The Minister will no doubt say that the Government cannot act quickly enough to respond to the judgment of S and Marper, and that they need to go through a public consultation before they can do anything, but I just do not buy that line of argument. If the order-making power was some sort of legislative shortcut pending subsequent primary legislation, it could have included a sunset clause, but the Government have chosen not to include one. The approach is made even more perverse when one considers that the Home Office's consultation document on DNA retention, released just a few weeks ago, envisages that primary legislation will be required to take samples post-conviction, or from UK residents convicted of violent or sexual offences abroad who are returning to the UK. If primary legislation is required for that, surely it is right that basic protections regarding samples, profiles and the DNA database and its oversight should be embodied in statute.

There are points on which we do agree with the Government. There should be different treatment for the young, in terms of the retention of DNA profiles. The DNA profiles of under-10s should not be retained. DNA samples should be destroyed as soon as practicable once a profile has been taken. Where an adult has been convicted of a recordable offence, DNA should be retained indefinitely. Where consent has been volunteered for DNA profiles to be put on the database, that consent should be capable of being withdrawn. Accordingly, we trust that the Government will support our new clause 31.

We have long argued for the need to ensure that the police can retrospectively take samples for a longer period after conviction and from those convicted overseas, so we are glad that the Government have responded positively to that call. However, we differ on the retention of profiles on the DNA database of people arrested but never charged with an offence, or of those acquitted of any wrongdoing. The Government argue that in these circumstances it is appropriate to keep the profile—to treat someone as a future potential suspect in a criminal investigation, even though they are supposed to be innocent in the eyes of the law—for between six and 12 years, depending on the nature of the offence for which they were arrested.

The Government seek to argue this on the basis of the hazard rates and purported patterns of future reoffending, as set out in their consultation document, yet these models are based on individuals convicted of having committed a crime and an assumption that they are relevant to those arrested but never convicted. This fundamental assumption is not fully substantiated. All the Government say is that their assumption is partially supported by analysis from the Jill Dando Institute, but this analysis has not been published and my understanding is that it has yet to be peer reviewed.

We believe it is appropriate to introduce an approach on DNA retention similar to that introduced in Scotland, where the DNA profiles of those convicted of an offence would be retained only in circumstances where charges relating to a crime of violence or a sexual offence had been brought. In these circumstances DNA profiles could be retained for a maximum period of five years, subject to judicial oversight after an initial period of three years. That is where we differ from the Liberal Democrats' analysis and their proposal. It is interesting to note that the Scottish DNA database has a higher success rate in matching profiles with crime scene samples than the national DNA database.

We recognise that there may be circumstances in which a serious risk of harm has been identified by the police and where the power to retain DNA information may be appropriate as a means of mitigating that risk, if a court considers that there is sufficient evidence. New clause 32 reflects this approach, and with your permission, Mr. Deputy Speaker, we shall test the opinion of the House on it.

Our amendments may not be perfect, but they demonstrate that it is possible to write these important protections into primary legislation. Government suggestions that that is too hard or inflexible miss the fundamental point that such protections need to be spelled out in this way precisely because it will be harder to change them in the future. That is why we believe these freedoms should be put on a firm statutory footing, and why the House should treat with the utmost suspicion the Government's approach of keeping the issue out of the House and out of sight.

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Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction) 5:00 pm, 19th May 2009

I shall respond to the amendments and new clauses tabled by Opposition Members and speak to those tabled by the Government.

I begin by saying to my right hon. Friend Keith Vaz that, in line with commitments given by the Home Secretary in her speech in December, I am pleased to confirm that the DNA of all under-10-year-olds has been removed from the database. My right hon. Friend also asked about the security of data on the DNA database. There has not been a single instance of the loss or misuse of data retained on the DNA database. I hope I have reassured him on those points.

I shall respond to the points raised by Opposition Members in the substance of my remarks. I welcome the aim of new clauses 1, 2 and 3 because they acknowledge that it is important to ensure that the biometric data of those suspected of violent or sexual offences are subject to a different regime of retention and destruction from the biometric data of a person arrested but not convicted. We would, however, have great difficulty supporting the amendments. I shall deal with the technical problems with them and then put them in the context of the wider argument.

First, the amendments do not clearly define the status of a person who has been released without charge. They could apply to a person released without charge and on bail, or to a person released without charge and informed that no further action would be taken. I can only assume that the latter is the intention of the amendment. The definition of an offence

"of a violent or sexual nature" may be too vague. It may be more appropriate to list the actual offences involved and, therefore, clarify what offence is and what offence is not subject to a specific period of retention for DNA and fingerprints. It is neither correct nor appropriate to amend section 113 of the Police and Criminal Evidence Act 1984, as proposed, because the section allows equivalent legislative provision in part 5 of the Act to be applied to the armed forces, subject to modifications that are considered necessary to cater for the different circumstances in which the armed forces operate. Any amendments in respect of part 5 of the 1984 Act would be reflected in the statutory instrument that applied those provisions to the armed forces.

Those are technical points. I now turn to the more substantive point about the need to engage the public in any new framework that we propose for the retention of biometric data that are taken during a criminal investigation. I shall also reply to the accusation that we are responding simply to the judgment, because, in fact, we seek to go further than that.

I recognise that some people who are currently on the national DNA and fingerprint databases who have been arrested but not convicted may well ask why, in the light of the European Court of Human Rights judgment, their samples are not being destroyed. The judgment did not hold that any retention of samples of unconvicted people is unlawful per se; rather, it held that we cannot maintain a blanket scheme of retention that applies to all samples. Moreover, as Members will be aware, the existing law stands until such time as Parliament changes or amends it.

The contents of the Government's enabling clause will allow for a retention and destruction framework to be put in place to ensure compliance with the European Court judgment within a reasonable time, and for such regulations to be subject to the consideration of both Houses.

Hon. Members who tabled new clauses 31 and 32 may have done so in the absence of sight of the Government's proposals that were published on 7 May in the consultation paper entitled, "Keeping the right people on the DNA database". It sets out very clearly our proposals to implement the judgment of the European Court in the case of S and Marper, but it also shows that in some areas we have gone further than the judgment requires. One such area is samples.

It is important to get on the record the fact that we have announced our intention to destroy all samples, whether they were taken from a person who was arrested and not convicted, or arrested and convicted, amounting to about 4.5 million samples. That is in direct response to the level of public concern about the retention of living samples by the criminal justice system. In addition, we have indicated that in future all samples must be destroyed as soon as possible and held only up to a maximum of six months for the purposes of ensuring that an acceptable profile is placed on the DNA database. The proposals that hon. Members have set out in new clause 32 do not make the important distinction between samples and profiles, and they fail to take into account a key area of public concern and an issue that was raised in the S and Marper judgment.

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Photo of Evan Harris Evan Harris Shadow Science Minister

Does the Minister accept that it would be far better to introduce primary legislation following the—albeit welcome—consultation that he just mentioned? The House would be able, by amendment rather than by resolution after a one-and-a-half hour debate, to give its view on the response to those discussions. That would be the most effective and mature way of developing legislation on these complex topics.

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Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

We had that debate at length in Committee, and there are several points to make in response to the Opposition's call for a primary legislation route. First, we have to meet the time scale of responding to S and Marper, and our legal advice is that we have a 12-month period, so there would be absolutely no opportunity to introduce any primary legislation in that time. I must also say to the hon. Gentleman that to believe that such a rule has been applied to date is to misunderstand the way in which the current framework has evolved. Such a proposal would set an important precedent, because DNA guidelines and their operation move over time. If he is saying that every time the DNA guidelines change, we must have primary legislation, he misunderstands the way in which the DNA issue moves—and moves very quickly.

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Photo of Gordon Prentice Gordon Prentice Labour, Pendle

Has my Friend consulted the Information Commissioner? If so, what is his view?

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Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

Of course we consult and take advice. At present, I am not in a position to tell my hon. Friend exactly what that advice is, but I am sure that I will be able to find it and provide it to him in the foreseeable future.

I turn to retention periods. New clause 34 proposes a retention period in respect of those arrested for violent and sexual offences, but only for a period of three years, subject to potential extension for a further two years on application to the Crown court. New clause 32 proposes a residual power on top of that, allowing a chief police officer to apply to a county court to make an order requiring the retention of a sample for up to five years when there is serious risk of harm to the public or when it would inhibit or disrupt the involvement of the person in the commission of a violent or sexual crime. If the provisions in new clause 32 simply relate to arrests, violent and sexual offences would be capable of a five-year retention period under proposals in its new section 64C. If the threshold of arrest is not involved, the criterion proposed is worrying. I assume that what was intended was a criterion of "risk of serious harm", rather than of "serious risk of harm"; otherwise, such an order could be applied in respect of any situation where there was harm or potential harm. In respect of inhibiting, restricting or disrupting the involvement of a person in the commission of one of those offences, the police already have the necessary powers.

I turn to the reasoning behind the retention periods that we propose—six years, or 12 years in the case of serious sexual offences. During the consultation period, we have set out the basis on which we have arrived at those decisions. There are two key aspects at work. Those who commit so-called minor offences also tend to commit more serious offences, and vice versa. Secondly, those arrested and not convicted have a propensity to offend—we did not say "reoffend", as James Brokenshire said we did—comparable to that of those who are arrested and convicted but not given a custodial sentence.

We are emphatically not losing sight of the fact that people are innocent until proven guilty, and we are not saying that people arrested and not convicted will go on to commit offences in future. What we are saying is that our research suggests that some of them—a greater proportion than in the population at large—do tend to go on to commit offences, including serious offences. If we could identify those people at the point of first arrest, life would be easy. But we cannot, and that is why we propose a proportionate retention period based on the individual's propensity to offend.

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Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I shall not, because I am running out of time. Research by the Jill Dando Institute indicates that 52 per cent. of subsequent offending takes place within the first six years of initial conviction, and that two thirds takes place within 12 years. Studies from the United States suggest that it takes up to 15 years for an individual who has been arrested to have the same risk of being arrested again as exists among the general population.

A point was made about the Scottish model. We did consider that model, which involves shorter retention periods. However, in the light of the research evidence available to us, which did not inform the Scottish Executive's decision, we have decided to propose six-year and 12-year retention periods. We recommend six years for most crimes and 12 years for those with high impact such as serious violent offences and sexual and terrorist-related offences.

One and a half hours having elapsed since the commencement of proceedings on the programme motion, the debate was interrupted (Programme Order, this day).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.

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The House divided: Ayes 71, Noes 284.

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Question accordingly negatived.

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