Clause 3 — Persons arrested for or charged with a qualifying offence

Protection of Freedoms Bill (Ways and Means) – in the House of Commons at 7:30 pm on 10th October 2011.

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Photo of Alan Johnson Alan Johnson Labour, Kingston upon Hull West and Hessle 7:30 pm, 10th October 2011

I beg to move amendment 89, page 3, line 43, leave out from ‘offence’
to end of line 44.

Photo of Dawn Primarolo Dawn Primarolo Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

Government amendment 1.

Amendment 91, page 4, line 2, leave out ‘3’ and insert ‘6’.

Amendment 92, page 4, line 4, leave out ‘3’ and insert ‘6’.

Government amendments 2 to 5.

Amendment 94, in clause 4, page 5, line 32, at end insert

‘Otherwise the retention period is 6 years.’.

Amendment 83, page 5, line 34, at end add—

‘(4) If the person was under the age of 18 at the time of the offence the retention period is three years.’.

Government amendment 6.

Amendment 84, in clause 9,page 8, line 5, after ‘retained’, insert

‘for an initial period of six years, then’.

Government amendment 7.

Amendment 108, in clause 20, page 13, line 26, leave out from ‘must’ to end of line 28 and insert—

‘place a report in both Houses, after consultation with the Association of Chief Police Officers (ACPO), on the suitability of a Commissioner for the Retention and Use of Biometric Material (referred to in this section and sections 21 and 22 as “the Commissioner”.

‘(1A) Subject to the approval of a report laid under subsection (1) by resolution of both Houses of Parliament, the Secretary of State may appoint a Commissioner to be known as the Commissioner for the Retention and Use of Biometric Material.’.

Government amendments 8 to 15.

Amendment 109, in clause 25, page 16, line 27, at end insert—

‘(1A) The provisions of this Chapter may not come into force until the conditions of 20(1) have been met.’.

Amendment 85,  page 16, line 33, leave out ‘3’ and insert ‘6’.

Amendment 86,  page 16, line 39, leave out ‘3’ and insert ‘6’.

Amendment 87, page 17, line 1, leave out ‘3’ and insert ‘6’.

Amendment 88, page 17, line 4, after ‘derived’, insert ‘6 years or more’.

Amendment 82,  page 17, line 9, at end insert—

‘(d) in the case of material taken or derived less than six years before the commencement day from a person who—

(i) was arrested for, or charged with, the offence and

(ii) has not been convicted of the offence, the destruction of the material at the end of the period of six years beginning with the day on which the material was taken or derived.’

Government amendments 33 to 38, 65, 66, 72 and 73.

Photo of Alan Johnson Alan Johnson Labour, Kingston upon Hull West and Hessle

There are several amendments in this group that seek to maintain the current position on DNA retention, as agreed by this House in April 2010 under the Crime and Security Act 2010. We have debated this issue many times, so Members will know that the argument centres around for how long the DNA of those arrested or charged but not convicted should remain on the database. The Government say the period should be three years for those arrested but not convicted of a serious offence—the so-called Scottish model—whereas we say it should be six years if arrested but not convicted of any recordable offence, as agreed by this House 18 months ago.

I realise that I am susceptible to the charge of being an old, sad former Home Secretary revisiting the scene of previous debates, and I may well be guilty of that, but let me explain why I, and colleagues on both sides of the House, have proposed these amendments. When I was Home Secretary—and the newly appointed shadow Minister, my right hon. Friend Mr Hanson, was the police Minister—we took a lot of time and trouble over this topic. We looked at all the available research before coming down in favour of a period of six years. I hope I can convince the House that we made the right decision in 2010 and that moving to the so-called Scottish model would be a terrible and potentially disastrous mistake.

This is a cross-party amendment. It is sponsored by the hon. Members for Kettering (Mr Hollobone) and for Bury North (Mr Nuttall) as well as the five supporters whose names appear, along with mine, on the amendment paper: my right hon. Friends the Members for Salford and Eccles (Hazel Blears) and for Delyn, my hon. Friend Siobhain McDonagh, and the hon. Members for Brigg and Goole (Andrew Percy) and for Shipley (Philip Davies).

That DNA is the most important breakthrough in modern policing, and a science in which Britain leads the world, is incontestable. It provides the police with 3,300 matches to crime scenes each month, which amount to almost 40,000 a year. It has led to forensics—the use of DNA and fingerprints—being the critical information in securing a quarter of primary detections in routine crimes such as burglary and car crime in England and Wales, as against only 6% in the mid-1990s. It has made a contribution to the huge decline in those crimes. It has also transformed the ability to detect the perpetrators of the most serious crimes: murder, manslaughter and rape. There were 832 positive matches in 2009. The European Court of Human Rights has accepted that the use of DNA evidence can make a valuable contribution to the prevention and detection of crime and the protection of the crucial rights to life, liberty and security. It said that any mechanism for the retention of biometric material must be justified as both necessary and proportionate to a legitimate aim.

There is no question but that those convicted of a recordable offence should have their DNA stored indefinitely; that is not a point between us in this House. It is necessary but insufficient, as the Government apparently accept which is why they seek to go further. The European Court ruled that indiscriminately keeping the DNA of those arrested but not convicted of a recordable offence was not proportionate. It breached the famous article 8 on the right to privacy and family life, which after last week’s shenanigans may well be known from now on as “the cat’s clause”. [Interruption.] That sounded good in front of the bathroom mirror this morning! The issue therefore is for how long the DNA of those arrested but not charged or convicted should be retained, consistent with the principle of necessity and proportionality. The Government say three years, in accordance with the so-called Scottish model; we say six years, in accordance with all the evidence.

It is worth mentioning that the Crime and Security Act 2010 broke from the Scottish model in not retaining the physical material from which the DNA is derived. That must be destroyed within six months after it has been translated into a series of numbers known as a DNA profile. This meets an important criticism by the European Court and addresses the concerns of those who are rightly worried about the purposes to which such genomes could be put. The Scottish model retains the DNA of those arrested but not convicted of serious offences only for three years, with a provision for a two-year extension that is so complex, bureaucratic and time-consuming that it has never been used or even applied for.

The three-year retention period used in Scotland is not based on any evidence or analysis that I can find. The figure appears to have been plucked from the air. The Minister will tell us that a review of the Scottish system by a Professor Fraser a year after it was introduced proves that the system works, but that review did not assess whether a longer retention period would be beneficial or whether retention for three years was detrimental to solving serious crimes. The retention of the DNA of those arrested but not convicted can be justified as necessary and proportionate under the terms of the European Court’s decision if their risk of being re-arrested is higher than that of the general population. Analysis conducted by the Home Office suggests that that is indeed the case and that the risk falls to that of the level of the rest of the population gradually over a period of six years. It dips after three years, but it leaves a significant tail that is not eradicated until after six years.

This analysis also established that the propensity to be re-arrested is not determined at all by the nature of the original alleged offence; in other words, there is no case for maintaining the DNA of those arrested but not convicted of serious offences. For instance, Mark Dixie, the murderer of Sally Anne Bowman, had his DNA taken because he was involved in a pub brawl—a minor offence. The provisions in the 2010 Act which we seek to retain are therefore based on evidence, unlike the Scottish model which is based on no evidence whatever.

The coalition partners decided to adopt the Scottish model when they were in opposition, since when they have struggled to make the facts fit their policy, rather than their policy fit the facts. Therefore, every so often they ask for a new hazard curve—the research that was done when I was Home Secretary—the latest of which they have published and circulated, claiming, tendentiously, that it is broadly supportive of the approach taken by the Government. That is so in the way that health professionals broadly support the Government’s NHS reforms. This supposed new research comes up with an absolute minimum of three years, a wide variance and a health warning about the size of the data sample.

I have also today seen a piece of Home Office research that the Department sought to bury, and which was painfully extracted from it through freedom of information requests. My right hon. Friend the Member for Delyn will say more about this, but it shows that 23,000 people every year who would be on the DNA database under our proposals but not under the Bill as it currently stands will go on to commit further offences. That illustrates the scale of the crime and security problems that will be created if the House defeats this amendment and supports the Government policy.

Photo of Anne Main Anne Main Conservative, St Albans

I am intrigued by the figures the right hon. Gentleman cites. Is he suggesting that being on the database for longer is a deterrent, and if so, why would people go on to offend?

Photo of Alan Johnson Alan Johnson Labour, Kingston upon Hull West and Hessle

Potential rapists, murderers, burglars and car thieves knowing about the science of DNA is certainly a deterrent. The argument here, which the Home Office shares both under its new management and its old management, is that we need to look at that hazard curve. The propensity of those arrested to be rearrested is much higher than for the general population. The crucial issue is how long it takes for that curve to even out. If we do not find that out and set this accurately, we will wipe the DNA of people who are likely to commit more crimes—some of them the most serious crimes—and not have the DNA to find and convict them.

The Government persist in seeking to apply the Scottish model in England and Wales, when all the evidence and the very strong police advice—from both sides of the border—is that Scotland should apply the model of England and Wales. Scotland’s rape conviction rate is less than half that of England and Wales. The DNA database in Scotland is far less effective in solving crime than that in England and Wales. In 2009-10, a DNA profile loaded on to the DNA database in England and Wales had an 18% higher chance of finding a match than was the case in Scotland. In 2008-09, 79 rape, murder or manslaughter cases were matched from DNA profiles belonging to individuals who had been arrested but not convicted, 36 of them for non-serious offences. The chief constable of the west midlands, who leads on this issue for the Association of Chief Police Officers, estimates a loss of about 1,000 matches per year if we use three rather than six years.

Let us, for a moment, turn those dry statistics into the actual facts about the people we are here to protect. Abdul Azad was arrested for violent disorder—a non-serious offence—in his Birmingham home in February 2005. A DNA sample was taken and he was released without charge. Five months later, a stranger rape occurred in Stafford, 25 miles away. There were no clues until skin from beneath the victim’s fingernails was profiled and was found to match the DNA taken from Azad. The senior investigating officer said:

“We would never have caught him had his DNA not already been on the database”.

He continued:

“He didn’t even live locally so we had no intelligence leads either.”

Under the Government proposals before the House today, this rapist would have escaped justice.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

Does my right hon. Friend accept that not only would this person not have been caught, but he may well have committed further offences? That answers the point made by Mrs Main about why it is important that we take action on this database.

Photo of Alan Johnson Alan Johnson Labour, Kingston upon Hull West and Hessle

Given that we know that the nature of rapists is to rape again if they get away with it, that is a very important point.

Photo of Pat McFadden Pat McFadden Labour, Wolverhampton South East

My right hon. Friend is making a powerful case. Will he speculate as to why the Government are doing this? Does he agree that it is based on the wrong-headed analysis that somehow the last Labour Government created a quasi-police state? If the Government start from that view, they will end up with legislation that does not protect the public, but puts them at greater risk. A few weeks ago, we saw that with the watering down of the protections against terrorism and now we see it with this proposal. Why are the Government so addicted to watering down the protection of the public?

Photo of Alan Johnson Alan Johnson Labour, Kingston upon Hull West and Hessle

It puzzles me. The Under-Secretary of State for the Home Department, James Brokenshire, is an honourable man. He was engaged in these debates in 2010 when the Labour Government were proposing what became the Crime and Security Act. I thought that things would have moved on since then. I read the record of the Committee stage of this Bill and saw the arguments put forward by my hon. Friend Clive Efford, and I find the paucity of the Government’s case astounding. They latched on to something called the Scottish model. Incidentally, nobody has challenged me about there being no basis of any research for the three-year provision—Labour was in power, by the way, so I am not knocking other parties. This was a figure plucked out of the air. The Government are reluctant to examine this issue on the basis of the evidence, even to the extent of completely ignoring the police, who do have a bit of expertise in this area.

In 1995, a 17-year-old girl was walking home from a night out in Banbury when she was forced into a car by two men, taken to an isolated area and repeatedly raped. In 2003, Lee Ainsby was arrested for being drunk and disorderly, and a DNA sample was taken. Two years later, in 2005, the evidence from the rape case was re-analysed and the DNA profiles were loaded into the national database—one matched, that of Lee Ainsby. He had committed a non-serious offence and he would not have been on that database under the Government’s proposals. A sample taken from his brother matched the second sample and so both of those rapists were caught and convicted.

D

It is extremely doubtful that the two brothers could have been identified individually, they have the same DNA if both parents were the same. The problem here is that persons with no expertise in this field are making decisions that effect the whole population. Would you buy a used car from a lingerie salesman?, I think the answer may be "knickers"

Submitted by Dave Butler Read 1 more annotation

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department 7:45 pm, 10th October 2011

I just wish to check on the point that the right hon. Gentleman made about that case. I believe he said that this individual had been convicted. As he knows, under the arrangements—I think that there is agreement on this point—where there is a conviction, the DNA would be retained indefinitely.

Photo of Alan Johnson Alan Johnson Labour, Kingston upon Hull West and Hessle

I did not say that this individual had been convicted. He had been arrested but not charged of a non-serious offence and his DNA remained on the database. The Minister has all these statistics—the Home Office provided me with them, so it can provide him with them too.

Photo of Gareth Johnson Gareth Johnson Conservative, Dartford

Will the right hon. Gentleman concede that unless we take the DNA of every man, woman and child in the country there will always be instances when DNA is found at the scene and not matched with any offender?

Photo of Alan Johnson Alan Johnson Labour, Kingston upon Hull West and Hessle

I will not concede that argument because, as I said at the beginning, our job, in accordance with the European Court of Human Rights judgment, was to come up with something that is necessary and proportionate. There has to be a logic to this; we cannot have blanket and indiscriminate retention of DNA. Because that is the requirement on us, we need to examine and research, as the Home Office and others have done, the hazard curve for those arrested but not convicted—that is the whole nature of this debate. The Government are not proposing to not keep the DNA of those arrested but not convicted, they are not proposing to take the DNA on conviction and they are not proposing to take the DNA when someone is charged. They are taking the DNA of those arrested but not convicted—innocent—for a reason; they think that it should be kept for three years, with various permutations and lots of complications. Labour Members say that six years is the correct level.

I shall give a final example, because it is important to translate all this into people rather than statistics. In June 2009, Gary Grubb attacked two women while working temporarily in Middlesbrough, indecently assaulting them both and then fleeing for South Africa. However, a DNA sample from the crime scene matched a sample placed on the national DNA database after he was arrested but not convicted for drink-driving—a non-serious offence—in 2006. He was arrested when he tried to re-enter the UK in 2010 and was sentenced to 10 years in prison. He would be free today if the proposals in this Bill had been in force at the time.

Let me say to Members on the Government Benches that lots of these cases will crop up in the future and this will come back to haunt them if they decide to support what is in this Bill today. The Government are ignoring these and the many other examples of the folly of their dogmatic approach. Their attempt to take the moral high ground consists of trotting out a mantra about these measures being consistent with the principle of innocent until proven guilty. That would be the case only if DNA were taken on conviction. Everybody is innocent when it is checked against previous crime scenes—there is nothing wrong with that, apparently—and the collective view is that DNA should be maintained to match against future crime scenes for a limited period. The Government do not even seek to return to the situation pre-2003, when DNA was taken upon someone’s being charged, not upon their being arrested. The

Government will continue to take DNA upon arrest, when every person from whom a sample is taken will be innocent. They now propose, under amendment 5, to introduce a convoluted, bureaucratic system to retain the DNA of innocent people where

“the retention of the material is necessary to assist in the prevention or detection of crime.”

So someone is innocent until proven guilty, unless they are innocent of a serious offence, in which case they will have their DNA retained under a procedure that is bureaucratic, convoluted and complex, and that the police are unlikely to use, as with the Scottish extension.

We are now to have the gloriously named “biometric commissioner”. I remember when my son was small buying him a bionic man—Steve Austin was “the bionic man”—and we now have the biometric commissioner. At best, he will have to open a file for each of the 17,000 suspected rapist, and the police will have to put forward a case in respect of every one of those 17,000 suspected rapists that Rape Crisis says are likely to be wiped off the DNA database. At worst, as Rape Crisis fears, those 17,000 profiles, or a large proportion of them, will be wiped.

Although all the evidence points to the need to adopt this amendment, we all need to accept that much of the research is based on projection. We do not have the six years of actual evidence required to make a proper assessment, and if we carry the Bill unamended we never will. DNA profiles for those arrested but not charged or convicted that are more than three years old will be wiped, never to be retrieved. Let us accept the amendment so that the proper assessment of all the evidence, when we have six years’ worth of it, can take place in a few years’ time. We can go from six years down to three, but we will never be able to go from three years up to six, which is why my right hon. Friend the shadow Home Secretary has implored the Government—they might be right about the three-year limit, although we doubt it, and it might even be necessary to have a limit of four or five years—to wait until we have evidence rather than projections. Is that not eminently sensible, given that we are dealing with life and death and issues that are so pertinent to criminal justice and so important to our constituents?

The role of the Home Office for the past 229 years of its existence has been to weigh the rights of the individual against the needs of society as a whole. For the Government to pursue their retention policy against all the available evidence and in the teeth of fierce opposition from the police, who will be restricted in their ability to catch criminals, and in defiance of the sensible alternative of reviewing the situation when more reliable evidence is available, is a huge, avoidable and potentially catastrophic error that they will live to regret.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

One point of agreement between me and Alan Johnson is that I think that this is a question of balancing collective protection and individual freedom. We can agree on that much, but in some ways the right hon. Gentleman is looking through the other end of the telescope. Through the indefinite retention regime that was the hallmark of the previous Labour Government, he seeks to retain data and information for as long as possible in case it becomes useful. I think he was accusing us of being dogmatic on this point in some ways, but he and his right hon. and hon. Friends come at it from the perspective that they want indefinite retention of everyone’s DNA for as long as possible. Our starting point is different. Our concept is that of innocent until proven guilty, so we come at this from a different direction.

I shall address some of the right hon. Gentleman’s direct points, but, as this is a wide-ranging group of amendments, it might assist the House if I explain the Government’s amendments before responding to those tabled by the right hon. Gentleman and others.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I will give way to the hon. Gentleman, who played a key part in Committee. I am sure that I will welcome his contribution to the debate.

Photo of Clive Efford Clive Efford Shadow Minister (Culture, Media and Sport)

The Minister has just said that he has accepted the principle of innocent until proven guilty, but will he confirm that everyone who is arrested will, at the point at which they are arrested, have their DNA sample taken and checked against the national DNA database, so that principle does not hold? The Government accept the principle that innocent people will have their DNA retained for up to three years for various crimes, so does he accept that we are debating the principle of who should have their DNA retained for three years or for six years? On the question of people’s civil liberties, will the Minister take into consideration the civil liberties of those who might be the victims of crimes that will not be detected because of the position that the Government have taken?

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I say to the hon. Gentleman—he and I had a fair and clear debate on this matter in Committee—that the Government take into consideration the position of the victim, which is why I said that that principle was our starting point. That is why we are adopting the provisions in the Bill. We recognise that more than 5.7 million people are on the national DNA database and about 70% of the profiles in the EU are on our national database, so it important—and our responsibility—to consider the issues extraordinarily carefully to ensure that we judge the balance correctly.

I shall go briefly through the Government’s amendments before returning to the important issues of principle and to do with the duration of retention. Government amendments 1 to 15, 33 to 38, 65, 66, 72 and 73 fine-tune the provisions governing the retention of DNA. In a number of cases, they pick up on points raised in Committee. The key amendments all touch on the role of the commissioner for the retention and use of biometric material and I shall detail those amendments first.

When we considered clause 3 in Committee, Clive Efford and others expressed concern that much of the detail about the arrangements for retaining biometric material taken from those arrested for, but not charged with, a qualifying offence was left to subordinate legislation. I gave the hon. Gentleman an undertaking that the Government would take the issue away and consider it. The Joint Committee on Human Rights also raised concerns about the issue in their recent report on the Bill. We have considered the issue further and agree that it is appropriate to place such detail on the face of the Bill. Amendments 1 to 5 therefore remove from clause 3 the existing order-making power for the Secretary of State to prescribe circumstances in which such retention would be permitted and replace it with new section 63FA of the Police and Criminal Evidence Act 1984.

New section 63FA sets out the circumstances in which a chief officer of police may apply to the commissioner to retain DNA profiles and fingerprints of those arrested for, but not charged with, a serious offence. The first circumstance, in new section 63FA(2), is where the victim of the alleged offender is a minor, a vulnerable adult or is “associated” with the suspect. The second circumstance, in new section 63FA(3), is where none of the criteria in subsection (2) apply but the chief officer none the less considers it necessary to retain the material to prevent or detect crime. The chief officer must give the person to whom the biometric material relates a copy of the application made to the commissioner. It is then open to that person to make representations to the commissioner within 28 days and it will then fall to the commissioner to determine the application based on these papers. Amendment 15 to clause 24 enables the National DNA Database Strategy Board to provide guidance to the police in such cases, thus helping to ensure consistency in the making of applications to the commissioner. Amendment 9 to clause 20 ensures that the provisions dovetail with the Terrorism Prevention and Investigation Measures Bill.

In addition to the commissioner’s review function in individual cases, we believe that the commissioner should also have a more general oversight role. Amendment 11 therefore extends the role of the commissioner to provide him or her with a general function of keeping under review the retention and use of DNA and fingerprints by police and other law enforcement authorities.

I draw the House’s attention to amendment 7, which makes two further exemptions from the normal retention rules. First, new subsection (2A) of section 63T of PACE, inserted by clause 17, ensures that the police can retain hard copies of material on case files. That is in order to ensure that a copy of the material remains available for examination by defence experts, and potentially the Criminal Cases Review Commission, in accordance with the disclosure provisions of the Criminal Procedure and Investigations Act 1996. The changes are therefore intended to ensure that the provisions discharge CPIA compliance obligations. The CPIA exists to prevent miscarriages of justice and I am sure that we would all agree that nothing in the Bill can undermine that purpose.

In order to enable the police to meet their obligations, new section 63T(2A) provides for the police to retain the minimum amount of biometric material necessary. So the records on the DNA and fingerprint databases would be destroyed in accordance with the existing provisions of the Bill, leaving only hard copies on the police case file that could be examined by the defence or the Criminal Cases Review Commission as necessary.

The second part of amendment 7, which inserts new subsection (2B) of section 63T, arises from a concern raised with us by Forensic Science Northern Ireland. The service was concerned that, because of the way that PACE is drafted, all samples taken compulsorily from a suspect would be caught by the requirement to destroy them in clause 14 of the Bill. That would include material originating from another person that is evidence of contact between people and would often be key evidence in a trial examining that contact. An example may be where traces of victim’s blood have been taken from a suspect’s hand. New subsection (2B) of new section 63T therefore provides that where material is taken from one person that originates from another it is not required to be destroyed within six months but can be retained for as long as is necessary in the same way as crime scene material can because it is, essentially, crime scene material.

Let me address the amendments in the name of the right hon. Member for Kingston upon Hull West and Hessle and others. As we have heard, the amendments return to the question of how long we should retain the DNA and fingerprints of innocent people. They would replace the Government’s provisions, which meet our coalition commitment to adopt the protections of the Scottish model, with the core of the previous Government’s Crime and Security Act 2010.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I will, because I know that the hon. Gentleman has taken a close interest in these matters for some time.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

The country’s police chiefs have rather helpfully told us that large numbers of those who were arrested following the summer riots were arrested because of matches against the existing DNA database. Has the Minister undertaken any work to ascertain how many of those would have escaped justice under his proposals?

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

The hon. Gentleman highlights a key issue—the retention of the DNA of those convicted of offences, with which I absolutely agree. Some 75% of those who were engaged in the rioting—or, at least, those who were brought before the courts—had committed prior offences. That clearly makes the point that there is a need to put the DNA of those who are guilty of crimes on the database, rather than keeping those who are innocent of any crime on it, which is the approach of the Opposition and was the approach of the previous Government. The Labour party persists in its approach of keeping the DNA and fingerprints of innocent people for many years, no matter what those people have been accused of and no matter how little evidence was ever uncovered in relation to them.

It is worth putting these issues into context. Of course, DNA is important. I fully recognise the scientific breakthrough of being able to take DNA to search against the database and, most importantly, to retain crime scene DNA evidence in a cold case database against which matches can be made. However, the collection of DNA is part of a process of investigation and is not a panacea in itself. I think that if the Labour party could have its way, it would continue with the previous approach of simply trying to put more and more data on the database regardless of people’s guilt or innocence. However, it is interesting to look at what has been the result of adding many more people on to the database. In 2004-05, 2.8 million people were on the national

DNA database and in 2009-10, the figure was 4.8 million people. Now, let us look at the number of detections in those years. In 2004-05 there were 35,605 and in 2009-10 there were 32,552, so when there were 2 million more people on the database, there were 3,000 fewer detections. I therefore challenge the suggestion of the right hon. Member for Kingston upon Hull West and Hessle that the more people’s DNA is on the database, the more effective it is. The figures do not necessarily equate in that way, as the historic evidence shows.

Photo of Alan Johnson Alan Johnson Labour, Kingston upon Hull West and Hessle

The total number of detected crimes in which a DNA match was available fell by 11% between 2003-04 and 2008-09—that is what the Minister basically just told us—but over the same five-year period, police recorded crime fell by 17.1%. So there was an 11% reduction in DNA detections and a 17.1% reduction in recorded crime. Those are the figures that the Minister of State, Department for Work and Pensions, Chris Grayling tried to fiddle in the previous Parliament. Burglary was down 29%, vehicle crime was down 40% and criminal damage was down 23%—so much for fewer cases being solved through DNA.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

As a proportion of total detections, DNA detections have remained pretty static. If the right hon. Gentleman is right that the figures I gave were all down to there being less crime—I think that is his argument—what he said about DNA detections would not be the case. Some 2 million extra people have been put on to the database and if hon. Members are suggesting that that change has been positive and would generate many more detections, I am afraid to say that that is not borne out by the evidence.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

I think this is quite a good indicator of how much the Labour party played with the politics of this issue when they were in government rather than dealing with the reality. The biggest handicap to the use of DNA in evidence is collection at the crime site, which is very poor. Our police have been poor at that for a long time but Labour did nothing about that throughout the entire period being discussed.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

My right hon. Friend makes a very important and powerful case about the effective use of DNA and the fact that crime scene issues can be very important in the detection of crimes and in ensuring that perpetrators are brought to justice.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I will give way because I know that the hon. Lady has focused closely on the disproportionate impact that the DNA database can have on some minority communities. I will be very interested to hear her thoughts.

Photo of Diane Abbott Diane Abbott Shadow Minister (Public Health)

I will of course be supporting the amendment in the Lobby tonight, but is the Minister aware that the professor who devised the use of DNA detection processes, Professor Jeffreys, is against keeping the DNA of innocent people? He argues that the amount of DNA that has to be held for that purpose and the intrusion of civil liberties that that brings is not justified by the marginal improvements in detection.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

The hon. Lady, who has taken a close and personal interest in these issues for a number of years, makes an important point. I know that some people will say that we should take everybody’s DNA from birth and that this would solve all the problems, but neither party seeks to make that argument here, although some people may. The issue of disproportionality is very important when considering how to strike the right balance on what the retention period should be, on how DNA is used and on the protections that are afforded. That is why we have taken the approach we have in the Bill.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I will, because I know that my hon. Friend has put his name to some of the amendments.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

On the gap between the fall in DNA detections and the fall in crime, my hon. Friend the Minister is ignoring the deterrent effect, which my hon. Friend Mrs Main mentioned earlier. If one’s name is on the database, one is less likely to commit crime and therefore will not be detected, so the matches will go down less than the crime rate is falling. I think that my constituents will be alarmed that there are 23,000 people on this database whose details will be wiped if we go along with the Government’s suggestions. The former Home Secretary has pointed out that on the hazard curve, they are likely to be rearrested within that missing three-year period.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

That point was made by the right hon. Member for Kingston upon Hull West and Hessle, but I pray in aid Professor Fraser’s report. I appreciate that the right hon. Gentleman says that the terms of reference were not wide enough and that it is not appropriate to rely on the report, but those terms of reference took account of available information and experience elsewhere when the appropriateness of the Scottish system was considered. Indeed, it was the right hon. Gentleman’s colleague in the other place, Lord Bach, who said:

“In determining the appropriateness of the current legislation, Professor Fraser considered data on reoffending rates and conducted a wide consultation. He did not uncover any evidence to suggest that this approach to retention has caused any detriment to the detection of serious crime in Scotland.”

I therefore think it is appropriate to look to Professor Fraser’s investigation, as he is a learned expert on forensics, rather than simply trying to skate over and ignore it as the right hon. Gentleman appears to be doing.

Photo of Alan Johnson Alan Johnson Labour, Kingston upon Hull West and Hessle

According to the evidence that the hon. Gentleman’s Department gave to the Home Affairs Committee,

“It has been suggested that the research carried out into the Scottish system (by Professor Fraser) did not uncover any evidence to suggest that the Scottish approach to retention had caused any detriment to the detection of…crime…However, that is to misunderstand this research which did not assess whether alternative systems would have been more effective. It was also unable to review how many serious crimes went undetected as the relevant DNA profiles had been deleted and, therefore, was not in a position to conclude whether there was any detriment to the detection of serious crime.”

That is the hon. Gentleman’s Department’s evidence to the Select Committee—collapse of stout party.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

Again, I would point to the right hon. Gentleman’s colleagues in the Ministry of Justice, who obviously wrote the letter saying that Professor Fraser’s report came to the conclusion that there was no detriment to the detection of serious crime. As I have highlighted, Professor Fraser’s report was wide-ranging in scope. Needless to say, we have a difference of view on this important point.

Photo of Julian Lewis Julian Lewis Conservative, New Forest East

In deciding whether to support the amendment or the Government tonight, I have to balance the loss of rights of those people who had crimes committed against them, or who may have crimes committed against them as a result of reducing the period of the retention of DNA from six years to three, against the injustice that might be visited on innocent people whose DNA is kept for three years longer than it otherwise would be. Can the Minister tell me, in words simple enough even for me to understand, what exactly the loss of human rights and the injustice will be to those innocent people who have their DNA kept for three years longer before it is wiped? Can he compare that with the suffering of victims who have crimes committed against them by people who will not be detected?

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

This is about getting the right people on the national DNA database. By that, I mean those who have been convicted of crimes. We should focus on those who have committed crimes; we should look at recidivism and getting persistent prolific offenders, those who have been in prison and those who have committed crimes on the national DNA database. Interestingly, that was not the approach of the previous Government; they were more fixated with keeping the innocent on the national DNA database. If we take the approach that I suggest, we can ensure that we focus attention where it is needed, and that we do our duty—this is something that I take very seriously—when it comes to protecting the public and ensuring that the police can do what is necessary. I certainly believe that the provisions before the House will enable the police to do that.

Photo of Julian Lewis Julian Lewis Conservative, New Forest East

My hon. Friend is very generous in giving way, particularly as he knows that this will not be a supportive question. With the greatest respect, he did not answer my question, which was: in practical, simple terms, in what way will these innocent people—let us accept that they are innocent—who will have their DNA kept on record for an extra three years suffer, or have their rights infringed? Can we compare that with the suffering and infringed rights of people who will otherwise have crimes committed against them by criminals who go unpunished?

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

When I look at the Members of Parliament who contact me about the DNA database, there are not huge stacks of correspondence relating to the retention of DNA. The correspondence relates to the many people who complain about their DNA remaining on the national DNA database when they are innocent of any crime, and who say how that offends them. Let us look at some of the cases involved. GeneWatch UK has been quite helpful in highlighting the issues. There is the 12-year-old schoolboy arrested for allegedly stealing a pack of Pokémon cards; the grandmother arrested for failing to return a football that was kicked into her garden; the 10-year-old victim of bullying who had a false accusation made against her; and the 14-year-old girl arrested for allegedly pinging another girl’s bra. Those people have been arrested; their DNA would be retained under the arrangements that the previous Government seemed to laud. That issue of injustice is very much at the heart of the matter.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

Will the hon. Gentleman place in the Library information on exactly how many letters he has received on the topic and how many complaints he has had, as compared with the number of innocent people who will be killed, raped, maimed or injured because of the proposals before the House?

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department 8:15 pm, 10th October 2011

I am sorry that the right hon. Gentleman has chosen to try to take us down that path. I am speaking honestly and fairly about the correspondence that comes from hon. Members on both sides of the House on the injustice that some minority communities feel in particular. Ms Abbott has highlighted how acutely many communities feel about the issue.

Ultimately, it comes down to a question of judgment and balance. The Labour party, when in government, did not focus properly on putting the guilty on the database. We are focused on doing that, and on not retaining all the DNA of those innocent of any crime. The right hon. Member for Kingston upon Hull West and Hessle may perhaps suggest that privacy is in some way a science, but it is not. Liberty cannot be decided on by testing in that way. It is a question of judgment and looking at the evidence, and reaching a conclusion on how to strike the balance fairly between collective protection and individual liberty.

As for what has been said about the previous Government’s proposals, the right hon. Member for Kingston upon Hull West and Hessle may pray in aid all sorts of things, but there was very limited support for the idea that six years was appropriate. We believe that the protection given by the Scottish model means that that is the right approach, and it strikes the right balance, and I therefore commend it to the House.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

I confirm to the Minister that this is a matter of judgment—a judgment as to whether one is on the side of victims and the prevention of crime. There are very difficult issues that the Minister knows we have wrestled with to do with balancing civil liberties with the protections that my right hon. Friend Alan Johnson has so eloquently spoken about today. I pay tribute to him; he has made a compelling case that Government Members ignore at their peril. I do not say that to the Minister in a threatening way; I am simply saying that I suspect that there will be people who are victims of crime because he rejects my right hon. Friend’s amendment this evening.

The Minister will know that my right hon. Friend and I included the provisions that we are discussing in the Crime and Security Act 2010 after considerable thought, and consideration of the European judgments that were brought against us. We tried to balance the civil liberties of the British people with their ability to secure their future, free of murder, rape and crime. The Minister will know that there are balances to be struck; ministerial life is about balances. I accept the point made by the hon. Members for New Forest East (Dr Lewis), for Dartford (Gareth Johnson), and for St Albans (Mrs Main): if the amendment tabled by my right hon. Friend is accepted, there will be people whose DNA is on the database for three years longer than the Government propose. Those people may not commit a further crime, and they may well feel aggrieved, but the purpose of the House is to protect the rights of citizens as far as we can.

When my right hon. Friend and I were in government, and were Ministers in the Department in which the Minister is now privileged to serve, we felt that, within European law and within the rights of protection of those liberties, we should try to extend the window of opportunity so as to protect as many people as possible, by ensuring that DNA was collected. We have to balance the aggrieved feelings that the hon. Member for New Forest East mentioned with the rights of citizens as a whole. There will undoubtedly be people who feel aggrieved, but we have to accept those consequences. Ministerial life is about making not just judgments, but the right judgments. On this occasion, the Minister has got that judgment wrong.

Britain is leading the world in DNA technology, which provides critical investigative leads. The DNA database provides the police with almost 3,300 DNA matches per month. There were 832 positive matches on the DNA database in cases of rape, murder, and manslaughter and other serious crimes in 2009. My hon. Friend Steve McCabe mentioned his concerns; Chris Sims, the chief constable of the West Midlands police, who leads on the issue not for the West Midlands but for the Association of Chief Police Officers, has said that much more detailed information is important to ensure that we protect the public from serious crime. There is no dispute about the fact that three years should be included in the Bill—both sides have accepted that. We are arguing for the maximum envelope that we introduced in 2010, which will protect future victims of crime.

Photo of Nicola Blackwood Nicola Blackwood Conservative, Oxford West and Abingdon

In the oral evidence given to the Select Committee on Home Affairs by Chris Sims of ACPO on 5 January 2010, it was clear that while DNA evidence is an important tool used by the police, it is just one tool that is used in 0.67% of convictions.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

Why make the police’s job harder? There are people who would be on the database because they have been caught—they have not been charged or convicted—whose DNA would be on record for between three and six years. My right hon. Friend eloquently described cases that led to people being arrested who would not otherwise be arrested. Those people have been arrested, and as a result they have not committed more crimes: they have not gone on to rape if they are serial rapists; they have not gone on to kill if they are serial killers; and they have not gone on to commit serious violence if they are individuals who commit serious violence. The public is safer, so I do not understand why the so-called party of law and order can sit back and watch a Minister roll back crime-fighting tools that would save people from becoming victims of crime in future.

Unpublished evidence, which freedom of information requests have dragged out of the Home Office—my right hon. Friend Yvette Cooper mentioned this last week—shows that every year, 23,000 people, who under Labour’s system would be on a DNA database will, under Government plans, go on to commit further offences. In the next eight minutes of this short debate, I urge the Minister to tell us which one of those 23,000 crimes he can explain to future victims of crime? Can he look them in the eye and say, “We could have stopped that and prevented it from happening, but we chose, for the sake of the civil liberties of the few”—and I accept those few do have civil liberties—“to allow 23,000 people to become victims of crime in future.”

Of those 23,000, some 6,000 a year will go on to commit serious crimes, including rape, sexual offences, murder and manslaughter. The Government’s so-called hazard curve supports Labour’s six-year retention plan, rather than three years. Members do not have to believe me or the Home Office: that is independently verified by the House of Commons Library. Changes to DNA evidence will make it harder, not easier, for the police to catch and convict criminals. The Government’s weakening of the DNA database goes against Home Office evidence, and 17,000 people arrested, but not charged with rape will, amazingly, be removed from the database, thus putting more women at risk.

I hope that the Minister will reflect on that, and listen to my right hon. Friend the Member for Kingston upon Hull West and Hessle, who has served this country in high office, and who has looked at the issue seriously to protect the public, as we all have. We will not crow in triumph if the Minister supports my right hon. Friend’s amendment: we will cheer his common sense. If he does not support the measure, perhaps he can look at amendment 108, which was tabled by my hon. Friend Vernon Coaker, whom I congratulate on his promotion to the shadow Cabinet, where he will serve with distinction. My right hon. Friend’s amendment, which I am pleased to support, suggests that perhaps we could delay the measure for a few years, so that we could consult ACPO on what is going to happen.

At the moment, the Bill allows police forces to apply to the so-called biometric commissioner for provisions on those who are arrested but not charged, which means that police forces can effectively say that they do not want to have someone deleted from the database. There could be an additional 17,000 cases, and how much police time will be devoted to that? The Minister is transferring risk from the Home Office to the chief constable of every force in the country, who will say, “I will not apply for that risk. I will not apply to ensure that that happens.” What will the work load be for the biometric commissioner? What resources will they have?

Who is responsible if a chief constable applies for a waiver, it is not dealt with, and the person concerned commits a further offence?

The Minister has not thought through his proposals, and as my right hon. Friend said, this is about people. It is about John Warboys, the black-cab rapist, who was caught because his DNA was stored when he was arrested, but not charged, for a sex assault. [ Interruption. ] I would love to give way to the Minister, but his programme motion allows us four more minutes of discussion, and my right hon. Friend needs to reply. If he wishes to reconsider his position, I will certainly give way. The black-cab rapist was caught as a result of DNA evidence. [ Interruption. ] Well, Kensley Larrier, whom we discussed at length in Committee in 2010—officials presented good information then, so it must be correct, as it was the information supplied at the time—was arrested in May 2002 for the possession of an offensive weapon. His DNA would not be retained under Government plans, but he was jailed for five years, and his name added to the sex offenders register for life.

Mark Dixie murdered 18-year-old Sally Anne Bowman close to her home. DNA evidence was retrieved from the murder victim, and within five hours, he was under arrest, and sentenced to life imprisonment. I do not want to see other Mark Dixies wandering the streets in those three years; I do not want crimes to be committed by other individuals who could be caught and stopped. I accept that civil liberties issues are at stake, but our job is to balance those civil liberties, and make a judgment that protects the public. I urge my right hon. and hon. Friends to support the amendment tabled by my right hon. Friend, because this is about judgment. His judgment is right, and I believe that the judgment of Opposition spokespeople is right. I believe that, sadly, if the Minister does not change his mind, the Government’s judgment will be shown to be flawed in due course.

Photo of Alan Johnson Alan Johnson Labour, Kingston upon Hull West and Hessle

I have been a Member of the House for 14 years, and I have not heard such a feeble reply from a Minister, not because he is any way inadequate—he is a very good Minister—but because the paucity of the argument is unbelievable. We heard an argument from the Opposition that there was no research behind the three-year Scottish model—that argument was not refuted. The Opposition made the argument that there is no evidence whatsoever that suggests that if someone is arrested, but not convicted of a non-serious offence, that makes a difference to their propensity to go on and be arrested for a serious offence. We put forward evidence about the proportion of DNA evidence and forensics that are used increasing from 6% in the mid-1990s to 25% now, showing the importance of DNA evidence. We put forward evidence of individual cases where, if the Government’s policy became law, murderers and rapists would not be caught, because their DNA would not be on the database.

The arguments that we get back are that the Government originally wanted to keep DNA indefinitely, which is not pertinent to the argument today, or that we would have as many names on the DNA database as we could, as though we were evil repressionists, which may be what the Minister believes, whereas those on the Government Benches are civil libertarians to the core, despite the fact that most of them want to abolish the

Human Rights Act. The Government need to engage in the argument. There is no evidence for what they are seeking to do—no evidence whatever about three years. The evidence that has emerged since the Scottish model was introduced in 2007 supports six years. All the projections made by the Department indicate that DNA should be kept for six years.

We are seeking to save the Government from themselves. Members on the Government Benches had better understand, as those who support the amendment understand, that the issue will come back to haunt the Government. The question put by the Leader of the Opposition to the Prime Minister about the number of rapists being wiped off the DNA database is only the start. Ignore the amendment and the Government make trouble for themselves, as well as making this country a less safe and secure place.

Question put, That the amendment be made.

The House divided:

Ayes 232, Noes 291.

Division number 356

See full list of votes (From The Public Whip)

Question accordingly negatived.

Proceedings interrupted (Programme Order, this day).

The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).