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

Part of Commission for the Compact – in the House of Commons at 4:45 pm on 19th May 2009.

Alert me about debates like this

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 4:45 pm, 19th May 2009

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.

Embed this video

Copy and paste this code on your website