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

Part of Commission for the Compact – in the House of Commons at 4:36 pm on 19th May 2009.

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Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary 4:36 pm, 19th May 2009

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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