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New Clause 1 — Retention, destruction and use of fingerprints and samples

Part of Crime and Security Bill – in the House of Commons at 4:45 pm on 8th March 2010.

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Photo of Andrew Dismore Andrew Dismore Labour, Hendon 4:45 pm, 8th March 2010

I rise to speak to my Committee's report on this part of the Bill and the amendments in my name that have been tabled on behalf of that Committee.

We have had extensive correspondence with my right hon. Friend the Minister and his predecessors on the retention of DNA, most recently, of course, in light of the Marper case. It might be useful to remind Members of what the Grand Chamber said in that case, because that is the test the Government have to meet in how they approach this issue. The court said that

"the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken-and retained-from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database...in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances."

That is the test laid down by the Grand Chamber, and the real question for us today is whether the Government's proposals meet it.

I am concerned that in the Public Bill Committee the Minister said that the Government would consider the judgment and that the question is now

"how far we can push the boundary of the judgment in relation to our wish to have protection for the public."--[Official Report, Crime and Security Public Bill Committee, 26 January 2010; c. 71.]

That implies a desire to push against the Grand Chamber judgment, and to see just how far the Government can go. That inevitably risks both future litigation if we are right up against the borderline-or, potentially, on the wrong side of it-and impacting unfairly, unjustly and unlawfully on the rights of many of our fellow citizens if their DNA is retained in circumstances that the Grand Chamber would not find acceptable.

We certainly welcome the Government's decision to respond swiftly to the judgment in the Marper case, and the proposed scheme reduces the likelihood of DNA samples and profiles being retained in a manner that is incompatible, but we are concerned that proposals for retention, in respect of people who are arrested but not charged or convicted, on the basis of a blanket retention period remain disproportionate and potentially arbitrary.

I am particularly concerned about the question of stigma, which the Government seem to discount, but the Grand Chamber thought was rather important:

"it did consider that the stigma attached...for the purposes of assessing the impact on the individual for the purposes of Article 8 ECHR" was an important factor. The Grand Chamber said that

"the inclusion of an individual on a list which treated him in the same way as a convicted person, and differently from a person who has never been suspected of an offence, would affect his own understanding of how the State chose to perceive him".

I think that is important, because about 18 months ago one of my constituents, the mother of Robert Chong, came to see me after her son had committed suicide in July 2008 because of the shame of being put on the database after he was falsely accused of exposing himself to a woman. A cursory check of the CCTV tapes would have demonstrated his innocence; his only interaction with the woman had been when she swore at him on a station concourse. The impact on Mr. Chong was severe-his mother described it to me in some detail. He became withdrawn and he told his mother:

"I'm on the criminal database now, I have got a record."

Eventually, he committed suicide. Whatever we do today will not resolve that particular case, because he is dead as a result of what happened in relation to DNA retention.

However, the case demonstrates how important the issue of stigma can be if we underestimate what we should do to try to put these things right. That is particularly the case in relation to children. We have separate provisions for them, but the provisions create significant risks of disproportionality. For example, a child convicted of two offences of shoplifting or minor criminal damage at the age of 11 or 12 could have his or her DNA profile retained indefinitely, and that cannot be right. The Government have a particular responsibility to justify the taking and retention of DNA samples and profiles from children. My Committee's view was that, in the absence of further evidence to support the Government's position, the proposed retention periods for the DNA profiles of children may be disproportionate and inconsistent with the requirements of the UN convention on the rights of the child.

My Committee is also concerned about the position on the DNA samples of innocent people arrested in connection with minor offences, because the Government make no distinction between arrests for minor and more serious offences. Our view is that the evidence is insufficiently robust to support the Government's contention. We noted the Council of Europe's recommendation, which indicates that the retention of DNA samples and profiles will be proportionate-even after conviction-only in the cases of more serious offences. We also noted that the research cited by the Government relates to conviction data and not to the likelihood that a person arrested in connection with a serious crime might subsequently be convicted of another offence of that type. Thus, there is no correlation in the evidence so far between the two-I think that that was the point being made by Chris Huhne. Although the Government's research supports the public protection argument for keeping more people's details on the database, it does not illustrate that the interference posed to individual rights is proportionate and necessary.

My Committee found it disappointing that the Government have chosen not to draw any distinction between arrests in connection with serious violent and sexual offences, and those in connection with less serious offences. Under the Bill, an individual arrested in connection with the investigation of a minor criminal damage or public order offence will be treated in the same manner as an individual who is charged but not convicted in relation to a serious violent or sexual offence. We consider that that failure is likely to increase the likelihood that the proposals will be considered disproportionate and incompatible when the inevitable challenge later appears.

My Committee was particularly concerned about the provisions in relation to national security, which go way beyond what we think to be appropriate-they go beyond the six-year period. Where a chief constable thinks that something has a national security implication, even when the six-year period has expired the DNA can still be retained, and that can be done without notifying the individual concerned that it is being retained. Our first concern is that there is no definition of what national security is in these circumstances, so my amendment 33 tries to set out what a definition of national security considerations should be. In addition, no provision is made for any oversight of a decision by the chief constable on this matter. My Committee recommends that oversight should be carried out by the Information Commissioner and a DNA reviewer, in the same way that there is a reviewer on counter-terrorism matters, in the form of Lord Carlile, to examine retention that is carried out for the purposes of national security.

We also need to address the oversight of retention decisions. The exceptional cases procedure is in place, under which, if it appears to a chief officer that certain criteria are fulfilled, for example that the arrest was unlawful, that it had been carried out on the basis of mistaken identity, that samples had been taken unlawfully or that any other relevant circumstances applied, the DNA record should be removed. However, the Nuffield Council on Bioethics has recommended that

"an independent body, along the lines of an administrative tribunal, should oversee requests from individuals to have their profiles removed".

The Government take the view that judicial review would be a sufficient remedy for that, as they always seem to in this sort of case. Generally speaking, these cases will be very fact-specific.

We note from the case of Tsfayo against the UK that in those circumstances judicial review could not resolve a lack of independence. Our view, therefore, is that there has to be a statutory form of appeal should a chief constable not accept that a case falls within those exceptional criteria. I propose an amendment on behalf of my Committee to provide for an appeal to the Information Commissioner and, ultimately, to the Information Tribunal.

Overall, in light of our conclusions, we remain concerned that the Government's proposals risk being indiscriminate and disproportionate. Without further concrete evidence to support the Government's argument for a blanket six-year single retention period, there is a real risk that these provisions will lead to further judgments finding the UK in violation of the right to respect for private life. In our view, there are various approaches that could comply with the Marper judgment-for example, the Scottish model, which was described earlier-but we are very concerned that the proposals before us simply do not meet the requirements of the European Court.