Criminal Justice Bill

– in the House of Lords at 9:10 pm on 30th June 2003.

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Votes in this debate

House again in Committee.

Clause 6 [Property of detained persons]:

Photo of Lord Geddes Lord Geddes Conservative 9:20 pm, 30th June 2003

Before calling Amendment No. 25, I must advise the Committee that, if it is agreed to, I shall not be able to call Amendment No. 26 due to pre-emption.

[Amendments Nos. 25 to 27 not moved.]

On Question, Whether Clause 6 shall stand part of the Bill?

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

Clause 6 is very worrying for a number of reasons. In its further report—HL Paper 118 printed on 9th June—the Joint Committee on Human Rights made it clear that it has a serious objection to the clause. It stated:

"We therefore remain of the view that clause 6 of the Bill should be either omitted or amended to ensure that there is adequate legally enforceable protection for rights . . . particularly as it has become increasingly clear to us that the information contained in a detainee's custody record may often effectively determine the outcome of a criminal trial, engaging the right to a fair hearing under ECHR Article 6 as well as the right to the peaceful enjoyment of possessions . . . At the very least, there should be a statutory requirement to keep all property taken from a detainee in a sealed bag, and to keep a list of anything left in the possession of the detainee if the detainee or his or her legal representative requests that it be done".

I thought it wise to quote the Joint Committee in full because it clearly has some serious reservations about the clause.

Clause 6 would refer back to the Police and Criminal Evidence Act 1984 and would remove the words in Section 54 so that it would no longer contain

"and record or cause to be recorded".

Section 54 would therefore read,

"The custody officer at a police station shall ascertain everything which a person has with him".

There would therefore be no obligation to record what there was with the individual when he arrived at the police station.

There are a number of other issues in addition to those raised by the Joint Committee. The Law Society pointed out that PACE introduced transparency and accountability into police investigations. We recognise that recording possessions is time-consuming. I agree with the Law Society that it can involve some additional paperwork. However, I also agree with the Law Society that it is not overly onerous and provides all the parties with protection. Without the obligation to record, there will be disputes as to what was originally in the suspect's possession, particularly where money is concerned. Items may have evidential value or be used to assist in inquiries into other matters. Surely, it will be more difficult for the police to protect themselves against allegations that evidence relied on was never in the suspect's possession.

It is the view of the Law Society that this provision will lead to increased litigation and increased distrust of the police. Nevertheless, this House must face the fact that the Government are intent on seeking to remove some of the bureaucracy involved. We did not seek to move the amendments because that would concentrate on the details. It might be useful to explore in Committee with the Minister ways in which the intention could be met without the sweeping away of this provision.

Perhaps I may add that in sweeping away this duty to record or cause to be recorded, I wonder whether the Minister has thought about whether there is now the right to record. If police officers still want to record the items, do they have any statutory authority to do so now? Perhaps the noble Baroness will address that point. It may well result from the sweeping away of this provision in this way.

It is important that a full list should be made of a detained person's property. The list assists the police in many ways, including those that I have already pointed out. It is important also because it ensures that the police cannot be criticised at a later time or, indeed, be subject to any allegation that they have held on to property. It is all there recorded. But there must be occasions which no doubt the Minister will point out where that has involved unnecessary paperwork. Perhaps we might explore with the Minister whether or not it might be at the request of the defendant or the accused person that there could be an obligation to record, or whether it will be possible for the police still to record at their own initiative. Would they need to seek the agreement of the defendant?

I can well understand the purpose of these provisions but it may well be that they will be counterproductive. A failure to list all property could prevent the successful prosecution of other offences committed by that person. It is also possible for the police who are making the decision about which property to record to fail to record property that appears at the time to be irrelevant to that particular prosecution.

There are views that this clause should not stand part of the Bill and that is why we seek this debate. We on these Benches support the reduction of bureaucracy where it is appropriate, but we feel that the police and others may find that they have reason to regret this particular clause if it becomes part of the Bill.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

I support the words of the noble Lord, Lord Hunt of Wirral. I really do not know where this has come from. What is this great bureaucracy? On the custody record there is always recorded on the front page a list of property that has been taken from the accused; that is all. Normally it is a fairly small list because most people who are arrested do not have all that much on them. They do not have the kitchen sink with them, generally speaking, and it is not a great onerous burden.

After that has been filled in, pages and pages of observations on the accused will be contained in the custody record stating everything that has happened to him while he has been in the custody of the police: where he has been, which room he has been to, what food he has had, what refreshment, when he has been interviewed and so on and so forth. There will be pages of that. The record of the property is a tiny part of the first page. So when one realises the practicalities, one wonders what is behind it.

As the noble Lord, Lord Hunt, said a moment ago, if property is not recorded, a danger exists of a defendant saying, "I had my money taken from me". I recall a case in Hong Kong where a defendant said that his life savings of 20,000 dollars were taken from him. As a result, his statement was excluded because of the way in which the police, according to his allegation, had behaved. No record had been made of his property, so the possibility for spending hours—if not days—on a fruitless investigation of what he had on him when he was arrested is obvious.

I wait for an explanation of why this issue is regarded as serious and why it is in the Bill. It seems to be another piece of ACPO that has found its way into these provisions.

Photo of Lord Carlisle of Bucklow Lord Carlisle of Bucklow Conservative 9:30 pm, 30th June 2003

If ever there was a totally non-party political clause in this Bill, it must be this one. My objection, like that of the noble Lord, Lord Thomas, and my noble friend Lord Hunt, is purely pragmatic. If the provision is the suggestion of the police, they will cause themselves greater trouble than they will save. I realise that making a list of an individual's possessions in the station takes a certain amount of time, but why do they want to do away with it? The opportunity it gives for the defence of plant is enormous. The prosecution say, "He had in his possession some cannabis", and the defendant says, "Well, it was planted among my possessions after I handed them in to the police". The next question would be, "Well, officer, where is your evidence? Let us see what was handed in". Answer: "We have no evidence of what was handed in". Pragmatically, it seems an extraordinarily unwise thing to do.

Equally, at the other end, as the noble Lord, Lord Thomas, said, the opportunity is enormous for defendants to say, "I handed in things which have since been stolen or been removed by the police". I would have thought that the amount of time likely to be taken up in investigating allegations of plant on the one hand or investigating allegations of taking property which did not belong to them on the other, would, in the mind of the police, far outweigh the period of time it takes to record a list of items that a person has on them.

Is not the answer to see whether we can devise a simpler, quicker way to record people's possessions when they are handed over to the police, rather than remove the security of recording, which I see as being of advantage to both sides?

Photo of Lord Elton Lord Elton Conservative

I see nothing but grief coming from this proposal for the reasons that have already been given. I wonder whether the noble Baroness can put herself in the unlikely position of being arrested after a visit to, let us say, Selfridges, being taken into the police station and relieved of three carrier bags and her handbag. It takes some time, but the difficulty is cleared up. She gets the bags back and there is a very smart new leather wallet missing from one carrier bag and her credit cards from her handbag. She says, "Where are my wallet and my credit cards?" They will say, "What wallet and what credit cards?" Even if that does not happen, it is what she will begin to think is going to happen. There is no point in inflicting this kind of uncertainty and insecurity on people who are not as yet proven to be guilty of anything.

Will it be possible for someone to proceed against the police if they honestly think that something has been removed from their property before it is returned? What evidence can they give beyond that which the police can give? There would be a very unpleasant situation leading to a great deal of wasted time in court. I long to hear the justification for it.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

I share precisely the same views as the other Members of the Committee who have spoken. I shall not take up time by explaining why I believe they are correct. I hope that my noble friend has a very good explanation.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I have never been awaited with such obvious anticipation. There is a sensible way of looking at the issue. I reassure Members of the Committee that we will not remove the ability to record. Clause 6 removes the absolute requirement to make a detailed record of the property brought into custody by a detained person and allows scope for alternative methods of securing those items where it is deemed appropriate.

I hear my noble friend ask, sotto voce, "By whom?". Discretion will be exercised by the police officer dealing with the matter. PACE currently requires the custody officer to ascertain and record everything in a detained person's possession when they arrive at the police station. As Members of the Committee indicated, it can use up a great deal of time, especially when the detained person is carrying many small items of property or many documents.

The amendment of PACE would retain the requirement for the custody officer to ascertain what the detained person has in his or her possession but would remove the necessity always to record everything in detail.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

Perhaps I may stop my noble friend at this point. Does that mean that if the detained person says, "I want you, as a police officer, to record my possessions", the police officer can say, "I note what you have but I am not prepared to make a written note"?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

In those circumstances, the officer would not necessarily refuse. With the greatest respect to my noble friend, perhaps I may be allowed to finish. The officer could say, "I am going to put all your possessions into this bag, which will be sealed. You will be able to sign and verify that everything that was in your pocket is now in this bag". That simple action would perhaps prevent the officer from having to itemise 39 penny pieces, 25 tuppenny pieces, 100 single coins, et cetera. But all the possessions would be in a sealed bag, noted, dated and timed, which may lead to greater efficiency.

Of course we have different levels of offences. The noble Lord, Lord Elton, gave the example of me in Selfridges with my numerous bags.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I think that he said Selfridges. I do not think that he thought I was quite up to Harrods on a ministerial salary. Those were days gone by for me. With my numerous bags and handbags, I would expect that all my items would be removed from me and that I would be asked to verify that they were all mine. They would doubtless be put into a sealed bag, and I could provide my signature. They would then give me back my sealed bags, which I would open.

Photo of Lord Elton Lord Elton Conservative

My difficulty is that we are removing a right that is contained in statute and replacing it with what the noble Baroness says should happen. Will the proposal be set down in regulation?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

The provisions have been crafted so as to be permissive. Members of the Committee will know that PACE demands that each and every item be detailed and noted. The provision simply gives the officer an opportunity to vary the way in which those items are identified. It could be five pieces of clothing, for instance, which are identified and put into a bag without being separately described. The noble Lords, Lord Thomas of Gresford, Lord Hunt and Lord Carlisle, all made valid points about the potential importance of those items to prosecutions when they come before the court. We know that there is often a dispute as to what was or was not in the possession of the accused and whether that item had any probative value in terms of guilt or innocence. That is absolutely understood by the police and by those who prosecute. Preserving the integrity of the evidence in a manner that will make it amenable to be dealt with appropriately in court is a matter that will exercise all those who prosecute and defend. History has shown us what happens when there is a slip between cup and lip.

The provision will simply allow the prosecution and the police to make a judgment as to which cases may need the detailed, item-by-item recording that we currently have, and which cases may possibly be recorded in a slightly different and more generous way. It is permissive. It just removes the absolute requirement to make detailed records; it does not remove the requirement to record.

Photo of Lord Elton Lord Elton Conservative

I have a copy of PACE in my hand. It seems from a quick glance that the word "record" has been removed from the only place it appears in that section. If I am wrong, I am happy to apologise and to withdraw, but there does not seem to be any requirement, once those few words have been removed, to do anything except "ascertain".

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

It does not prohibit the officer recording and it is our intention that the ability to record will continue. I have tried to make that clear. The amendment to PACE would retain the requirement for the custody officer to ascertain what the detained person has in his possession. Perhaps the noble Lord, Lord Elton, has more difficulty than I do, but normally the only way one can ascertain what a person has is by requiring. I respectfully and humbly submit that the information can then be recorded because that is one way of ascertaining what a person has.

Photo of Lord Elton Lord Elton Conservative

Ascertaining is finding out: recording is making a permanent record.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

To use the practical example, if the officer is asked, "Did you ascertain what was in the defendant's possession on the date in question?", and he replies, "Yes", he would then be asked, "What was in his possession?", and the officer would dictate the answer. The officer would then be asked, "How can you assure the court that that is an accurate record?" It would be a very silly officer who did not say, "I recorded it here and the accused signed it" or some such thing. We are looking at how such evidence will be produced. It would be a very foolish prosecutor indeed who replied, "I ascertained it but I made no note of it whatsoever".

I see the noble Lord, Lord Thomas of Gresford, is itching to rise.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

Why change the provision? At the moment the property is listed and the person who has been arrested signs for it. He acknowledges what has been taken away. Why remove that provision?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

The clause allows for bureaucracy to be made slightly easier. In appropriate cases, instead of listing things item by item, one could collate and describe certain things that may have been in the defendant's possession in a more generic way. It will still be incumbent on the prosecution to establish the chain of events, make sure that no one could have interfered with anything or taken anything away. The noble Lord, Lord Thomas of Gresford, knows those arguments well, and he knows the way in which it may be suggested in a trial that something has been altered, interfered with or left behind or that something could have been done that was not done. All those arguments are grist to the mill, in the ordinary cut-and-thrust of criminal proceedings. We all know the basis on which they will be used.

The amendment would retain the requirement for the custody officer to ascertain what the detained person had in his possession but would remove the necessity always to record everything in detail. As I said, there will be cases in which, because of the nature of the offence with which one is dealing, the only prudent and responsible thing to do is to record in minute detail the precise nature and contents of what is in the accused's possession. On other occasions, that may appear to be less necessary because of the nature of the offence. I see that the noble Lord, Lord Carlisle of Bucklow, is itching to intervene, so I shall give way again.

Photo of Lord Carlisle of Bucklow Lord Carlisle of Bucklow Conservative 9:45 pm, 30th June 2003

I listened carefully to what the Minister said. In some ways, we are now dealing with semantics. The Minister gave the example of putting five—or was it eight?—coats that she had bought at Selfridge's, and at John Lewis's on the way, into one bag that is then sealed and signed by her. I accept that that is a recording by the police of what they have received from her.

We are probably now saying that the wording implies that there is no duty to make a record of any kind of what a person may have with him. It may be a matter of semantics, and the answer may be for the Minister to consider the clause again to see whether the wording is right or whether there are other ways of achieving the same end.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

In the Explanatory Notes, it says:

"Clearly, it will still be necessary to make records, not least to ensure against claims that property has been mishandled or removed".

I am trying to picture the scene that the noble Baroness describes in which all of a person's things are put into a big, black plastic bag. The bag is sealed, and the person signs something to say that it was sealed. Later, the person gets the bag back, opens it and says, "This is the bag, but my wallet is missing". If everything has not been written down, the system has not helped. Is it not necessary for everything in the bag to be listed?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

Sometimes, it will be; sometimes, it will not. That will depend on the nature and quality of the evidence and the sort of matter that is to be dealt with.

All that the proposals do is give those dealing with the matter some flexibility. At the moment, each and every item must be separately noted. The provision enables the person dealing with the matter to describe things generically and, therefore, more quickly, rather than making a more detailed list.

What the noble Lord, Lord Carlisle of Bucklow, says is right. We may have to examine the language again. I am a little surprised and concerned that so many noble Lords thought that we were suggesting that there would be no recording at all. That is absolutely not what we think. As I said, in the cut-and-thrust of ordinary criminal litigation, there will have to be a modicum of recording for any form of property. Even if it is just the minimum that I described and it all goes into a sealed bag, that will still be a record.

I am happy to consider whether we can do anything else to make it clear that we are not seeking to expunge from the procedure the requirement to make a record. We seek simply to amend the requirement that every minute item must be separately recorded in one place.

In trying to make the procedure work better, there is a hope and expectation that the pilots—currently in five areas where we have encouraged and enabled staff from the Crown Prosecution Service to assist officers to formulate the nature of the charge—will be rolled out across the country by the end of the calendar year. Officers will not have just their own judgment as to the evidence and decisions they need to make in relation to these issues, but they will have the advice and assistance of a properly qualified member of the CPS when making these evidential judgments, which are sometimes very difficult. I shall give way in one moment. We certainly found that in the cases where the pilots worked they have greatly improved the efficacy of the process.

Photo of The Bishop of Chester The Bishop of Chester Bishop

I have listened to the brief debate with interest. The title of the clause is "Property of detained persons". We are dealing with the property of other people. For that reason alone an accurate record ought to be kept. If one is giving something that one owns to someone else, the very least one can expect is that an accurate record is kept. The precision of the record is a matter for debate, but the accuracy of the record is essential.

In the circumstances where people are detained in police stations, there is a lot of emotion in the air. Listening to the debate, I wonder whether the game is quite worth the candle of making the change. Certainly, the case for a change, in my view, has not been made as clearly as it might have been.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I absolutely agree with the right reverend Prelate that it is the accuracy that counts. Perhaps I may respectfully say that I think a great deal is being made of this. It may not be worth a candle, but I would put it the other way. All we are trying to do is something very practical and very simple which it is to be hoped will make things a little easier and a little faster both for the accused person and the officer. The right reverend Prelate is right in saying that these can be very distressing circumstances. Any of us who have had our bags totally turned out and have had to go through every item while an officer examines, looks at and notes them, know that that, too, can be very distressing and humiliating. Those of us who have gone through Heathrow and have had people examine the contents of our wash bags or handbags know to our cost that not every item in that bag would one like to be examined with the particularity that others feel they should give it.

What the defendant feels about these issues is going to be important. It would be a very foolish person who would ignore someone who was suggesting reasonably that they wanted a particular detail. By the same token, if they were being wholly unreasonable, it would be something that the officer would take into account. It cuts both ways. We are trying to ensure that we are proportionate in what we do. Many accused would be very happy simply to to be asked, "Is this your bag? Would you like to look at what is in it?" and then close the bag and have it sealed. They would find that far less painful than to have a great big trawl through all the intimate items contained therein.

That is all this clause is trying to do. I am very conscious that this was an anxiety; that it has been explained clearly; and that noble Lords thought that we were not requiring any recording. I shall take it away and determine whether we can tighten the drafting to make that clear. If we cannot, on the Pepper v Hart basis and what is said in the notes attached to Clause 6 that will greatly assist in determining our intention. With that, I hope that noble Lords will be content.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

I am not persuaded. It may be that in only one in 100 cases what is in a person's property will be important. But it can arise in all sorts of ways—bloodstaining, DNA and fingerprints. It would be the easiest thing in the world for a defendant to say, "Well, it's not recorded what I had. This is a plant". On the other hand, it would be easy for a policeman to say, "Yes, that was there". The adjudicating authority, whether magistrates or a jury, will say, "Well, we have a policeman's word against that of the defendant. We believe the policeman". So this goes to issues of guilt or innocence and the liberty of the person.

I am not persuaded by the argument that it is embarrassing to have your handbag or your washbag searched. As an inveterate loser of nail scissors at airports I find it irritating but hardly embarrassing. It is a completely different situation in a police station.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

Perhaps I should remind the noble Lord that what ladies have in their handbags quite often differs from what gentlemen have. Speaking as a member of the former sex rather than the latter, I can tell the Committee that it can be deeply embarrassing.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

I hesitate to intervene in the discussion about the contents of respective handbags, but I hope that the noble Baroness will think again. The right reverend Prelate made an important point. We are not persuaded, but we can see what the Minister is seeking to do and there may well be a way through. I do not want the Minister to think that she can come back and say, "Well, I have tried, but there is no better way than to sweep the provision away".

I have two suggestions. First, it would be possible to insert a "may" into Section 54 of the Police and Criminal Evidence Act so that it reads, "may record or cause to be recorded". Secondly, I hope that there will be an opportunity for an individual to request that a full record be made. That is important.

The Minister said that she will reconsider the matter. I hope that she will table amendments in her name when we reach the Report stage.

Clause 6 agreed to.

Clause 7 [Taking fingerprints without consent]:

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

moved Amendment No. 28:

Page 4, line 41, after "offence" insert "and an officer of at least the rank of inspector authorises them to be taken"

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

Clauses 7 and 8 were introduced on Report in the Commons and have not been debated to any great degree. Clause 7 extends the circumstances in which the police may take a person's fingerprints without consent to include taking fingerprints from a person arrested for a recordable offence and detained in a police station.

It extends the current powers in Section 61 of PACE, which have limitations. Fingerprints can at present be taken from those in police detention without consent following charge with a recordable offence or notification that a suspect will be reported for such an offence; or, secondly, on the authority of an inspector, which can be given only where the officer has reasonable grounds for believing that the suspect is involved in a criminal offence and that the fingerprints will tend to confirm or disprove his involvement or facilitate the ascertainment of his identity. I emphasise that that is for the purposes of confirming or disproving his involvement in the offence of which he is suspected or of finding out who he is.

The new proposals make it possible for police officers to require fingerprints from a person without his consent merely on arrest. They do not require the authority of an inspector; nor are they limited to inquiries which tend to confirm or disprove his involvement in a particular matter for which he has been arrested. They are therefore a significant advance on Section 61 and we oppose them.

The amendment is limited. All we seek—we shall come back to the clause in much greater detail at a later time—is to retain the existing requirement of an officer of at least the rank of inspector must authorise the taking of the fingerprints from someone who is detained but not yet charged. We think that that safeguard must be maintained. It should not be right for an investigating officer of detective constable or police constable rank to require fingerprints in circumstances like these. Nor do we think that fingerprints should be retained indefinitely simply because a person has been arrested, even though no charge may follow. I beg to move.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative 10:00 pm, 30th June 2003

I share the concerns expressed by the noble Lord, Lord Thomas of Gresford, with all his experience in these matters. I could not put it any better, but I would like to add to his analysis of the existing provisions of PACE. They have reached a very careful balance—a carefully articulated balance—between the perceived need for the police to have new powers and the provision of protection against abuse of those powers. It is very carefully balanced.

I think that a number of noble Lords find it difficult to sweep away those provisions in the way proposed by the Government. At a rather late stage in the Bill's progress, they are suddenly saying that there should be powers in Clause 7 to allow the police to take fingerprints from anyone who has been arrested for recordable offences without his or her consent, whether or not he is she is subsequently charged with any offence, and then to retain the fingerprints indefinitely.

The report of the Joint Committee on Human Rights, from which I quoted earlier, sets out very clear concerns about these powers which I share, and I support the noble Lord, Lord Thomas of Gresford. The Joint Committee reminds us of the ECHR provisions, particularly Articles 3 and 8. It is a worrying fact that although there was a dialogue between the Minister who attended and the committee, the committee stated very clearly in paragraph 54 of its report:

"This leaves us significantly concerned about the risk that arrangements for managing the hugely increased volume of personal data which would become available through the operation of the proposed new powers would be inadequate to secure compliance with ECHR Article 8".

It goes on to deal with a very important point. There has been a steady increase in the number and scope of statutory provisions allowing data to be shared between agencies within and outside the United Kingdom for a wide range of investigative purposes. The Joint Committee draws attention to the risk that the databases might lawfully be put at the disposal of foreign investigators and intelligence agencies conducting speculative "fishing expeditions" in circumstances in which the law governing the work of the foreign agency requesting information offers little or no protection for privacy-related rights in respect of personal data held by public authorities. The Joint Committee also draws attention to the lack of clarity in the allocation of legal responsibility for securing compliance with Convention rights.

The Minister will be aware that there are negotiations relating to the draft agreements between the European Union and the United States of America, including a draft agreement on mutual legal assistance, which would lead to the establishment of joint European Union/USA investigative teams. However, this represents the worrying prospect that Article 9 of the draft agreement would prevent the United Kingdom or any European Union member state from refusing to provide information to USA investigators on account of the lack of effective protection in the USA for privacy-related rights in respect of personal data.

I hope that the Minister will understand that it is right for us to challenge the Government on the need for the clause. One is entitled to ask, if there is such a need, why the clause was not put in the Bill in the first place. I know that there has been police pressure for that sort of power, but the danger is that the police could charge a person just to be able to get their fingerprints and try to match them at will to the database to see if they can clear up crimes. Those are the sorts of worries that could arise in profusion.

There are two principles here: first, the propriety of taking fingerprints from someone who has been arrested but not charged and, secondly, the decision to add that information to a database. Those are worrying aspects, and I join the noble Lord, Lord Thomas of Gresford, in seeking to challenge the Government to justify that quite considerable extension of police powers.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I should say immediately that, although I hear what the noble Lord says about the Joint Committee on Human Rights, it accepted that there was no breach of Article 3 in relation to the provisions. To that extent, the committee accepts that they are sound.

It might be helpful if I explored a little more fully how the clause was justified. The Government's proposed amendment to Section 61 of the Police and Criminal Evidence Act 1984 will, as the noble Lord, Lord Hunt, said, allow the police to take fingerprints from a person arrested for a recordable offence and detained at a police station as a matter of routine. We accept that that is a departure, but we argue that it is an important issue that may materially affect the police's ability to identify the correct defendant for the correct charge. It can be used to release people as much as to detain them, if people are identified as having participated improperly in criminal activity.

It is important for the police to be able to do that quickly in order to prevent persons evading justice by giving the police a false identity, and also for the police to be aware of anyone who may pose a risk to themselves or others. The proposed amendment would introduce an unnecessary layer of bureaucracy and possibly inhibit the police from being able to ascertain quickly who it is they are dealing with.

The Government's proposed amendment to Section 63 of PACE will allow the police to take a sample of DNA from a person arrested for a recordable offence and detained at a police station as a matter of routine. The profile obtained from the sample can then be searched against the national DNA database to see whether it matches that from a crime scene. That will potentially allow for more crimes to be resolved and at an earlier stage. Imposing a restriction whereby the taking of the sample has to be authorised by an inspector or above would introduce an unnecessary level of bureaucracy.

The clause will give the police a discretionary power, which they would be able to exercise in the appropriate case. At the moment the Police and Criminal Evidence Act 1984 governs that. Under PACE, the police may take fingerprints from all those charged with, informed they will be reported for, or convicted of a recordable offence. The police may also take fingerprints from those suspected of a criminal offence where there are reasonable grounds for believing that the fingerprints will tend to confirm or disprove the suspect's involvement.

The police may also take a person's fingerprints to facilitate the ascertainment of a suspect's identity. I am sure that noble Lords will recall many very distressing cases in which individuals subsequently found guilty of some of the most heinous offences—I am thinking particularly of some of the most notorious rape cases—were identified at an early stage but DNA or fingerprint samples were not taken from them and retained. Had that happened, the police might have been able much earlier to identify the perpetrator of those murders/rapes and to prevent ensuing tragedy. One need only think of the Ripper who was identified and questioned on a number of occasions in relation to a number of his victims. On each occasion he was let go. In such cases it would be of great assistance if this sort of DNA and fingerprint sampling were available to the police. It would assist in identifying those people at an earlier stage.

It is very easy to discuss these issues as if we were discussing semantics. We are not discussing semantics. We are talking about the ability to identify those who commit identifiable crimes and who can properly be brought to book by means of the independent DNA and fingerprinting evidence that is available to us now as it has not been available to us historically.

The current framework means that the police may miss the opportunity to establish a detained person's true identity if that person lies about who they are and the police have no reason to believe that they have done so. That may inevitably result in criminals, some of them guilty of serious offences, not being identified when they come into custody for other matters. The problem presents itself even more acutely now that we have technology that can check a fingerprint against national records during the time that a detained person can reasonably expect to be in custody.

A number of police officers tell us that, now that accused persons know that their identity could be ascertained early in the process by means of fingerprints, many of them quickly decide that it is not worth the candle and own up to who they are, thereby saving a great deal of time and trouble. Those who chance their arm, to put it colloquially, are identified more easily and more quickly.

This clause will enable those who seek to evade justice by assuming a false identity to be properly identified and dealt with through the due process of law. It may in addition also reveal, by markers on the police national computer, if they are a danger to themselves or others. I stress that they could be a danger to themselves. When people do not give their correct identity, it is sometimes impossible for police to recognise that they are, for example, a suicide risk. They are not given proper supervision. They are treated like an ordinary arrested person, put in a cell and left on their own. The police have no idea that they are susceptible and something untoward may occur which could have been prevented if they had been properly identified.

The power can therefore be helpful not only to the police in detecting crime but occasionally also to the accused, particularly if they require medication or an appropriate adult to be present if they suffer from any form of vulnerability that may be known in the system but not disclosed. I see the noble Baroness, Lady Walmsley, in her place. I think that she knows only too well what happens with those who suffer from mental difficulties. They are quite often the last to identify themselves as vulnerable and sometimes the appropriate steps are not taken to help them.

Broadening powers to take fingerprints pre-charge has civil liberties implications, as the noble Lord, Lord Thomas of Gresford, said. There may also be concerns about building larger databases of fingerprints, particularly where it relates to people who have not been proceeded against for an offence. While I recognise all those concerns, we have concluded that any intrusion on personal liberty is proportionate to the benefits in detecting crime and protecting the public against criminals.

In coming to the conclusion that the new powers are compatible with our human rights obligations, we have noted in particular that: the power is discretionary; and that the Divisional Court and Court of Appeal, in the case of R (S & Marper) v Chief Constable of South Yorkshire, agreed with the Government that a balancing exercise involving the rights of an individual, victims of crime and society must be carried out when assessing whether powers are proportionate. The individual's rights are not automatically the most important.

I understand the sensitivity involved, but when one has to balance that against the need to identify the perpetrators of crime, the Government argue that we must come down on the side of the proper detection of crime in this instance. Anyone who has behaved properly and has not become involved in inappropriate and improper criminal activity has nothing to fear from his fingerprints being retained, but it is very difficult indeed to explain to the family of a murder victim or to a victim of rape or of an avoidable offence that we had the technology and ability to identify the individuals concerned, but we let them pass us by.

Using available DNA, fingerprints and sophisticated technology, the police have cleared up a number of offences, particularly in relation to rape. Those offences have been attributed to people currently serving terms of imprisonment for similar or other offences. I hope that the Committee will think that that is a proper and just thing for us to seek to do.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat 10:15 pm, 30th June 2003

It is always dangerous to refer to other cases. The case of R (S & Marper) v Chief Constable of South Yorkshire was a case in which it was held that there was an infringement of Article 8.1 of the European Convention on Human Rights. I do not suppose that we have heard the end of that. Certainly the Court of Appeal held that the retention of such samples where no prosecution followed was legitimate, but I am sure that will be challenged.

As regards the Ripper case, I do not recall the Ripper being arrested. His name may have come up on a database or on a search. Certainly that happened with the Cannock Chase murders, where the name of the ultimate accused came up on three separate databases or searches but there was never any cross-checking, which would have revealed that he was the only person who appeared on all three types of search.

The noble Baroness said that the clause removes an unnecessary layer of bureaucracy; that is to say, simply the inspector authorising the taking of the fingerprints as opposed to anyone else. I do not regard that as an unnecessary layer of bureaucracy. The measure introduces an element of authoritarianism. The argument that you have nothing to fear if you have done nothing is always trotted out to support authoritarian measures of that kind. The noble Baroness told us that it is a discretionary power. The discretion exists at the moment but it exists to be exercised by an inspector of police. Now it is proposed that that discretion should be exercised by the man who "nicked" the offender—the detective constable or the police officer. It seems to me that a person with greater authority than the person who does the arresting should be brought into play in order to exercise that discretion. I have no doubt that we shall come back to the issue and to that of DNA, which we are about to discuss, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Photo of The Countess of Mar The Countess of Mar Crossbench

In view of the lateness of the hour, and in view of the agreement that the Government Front Bench has with the House that we close at 10 o'clock except on special occasions, I beg to move that the House do now resume.

Moved, That the House do now resume.—(The Countess of Mar.)

On Question, Whether the said Motion shall be agreed to?

Their Lordships divided: Contents, 4; Not-Contents, 91.

Division number 3 Private Parking: Ports and Trading Estates — Criminal Justice Bill

Aye: 2 Members of the House of Lords

No: 89 Members of the House of Lords

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Resolved in the negative, and Motion disagreed to accordingly.

Clause 8 [Taking non-intimate samples without consent]:

[Amendments Nos. 29 and 30 not moved.]

On Question, Whether Clause 8 shall stand part of the Bill?

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative 10:31 pm, 30th June 2003

I sense that this will be a very brief intervention, but I believe it is important to put to the Government and to the Minister our concern that Clause 8 is in the Bill. It would enable samples to be taken from the 1.2 million people a year who are arrested for possible recordable offences but who are not all charged, and it would allow those individuals and their DNA to be added to the national database.

I recognise the force of the Minister's comments about other cases. However, if we are to go down this road to establish a national database, then I really do not believe that we should do it through the addition of this clause to the Bill. Instead, I believe that we should have a full and proper debate and discuss the safeguards that are vitally necessary. That is why I do not believe that Clause 8 should stand part of the Bill.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

Due to the lateness of the hour, I can take the matter equally briefly and say that I pray in aid all the comments that I made in relation to the previous amendment. It is important that the police are able to retain all the information assembled during the investigation of an offence—not least to enable them to investigate a possible miscarriage of justice in the future. The police are already able to obtain other information gathered as part of the investigation, such as witness statements, photographs and samples. We argue that fingerprints are no different.

However, I accept that we shall debate these issues again, and I anticipate from the mood of the Committee and from the comments made in relation to the other matters by the noble Lord, Lord Thomas of Gresford, that we shall have an opportunity to do so at length. Therefore, at this stage, I do not seek to say anything more.

Photo of Lord Carlisle of Bucklow Lord Carlisle of Bucklow Conservative

Does the Minister agree that there is a difference between the right, in the course of an investigation, to take fingerprints and other samples as against the right to retain them after a person has not been charged or has been acquitted? It seems to me that those are two different issues.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

They are two different stages. I say to the noble Lord, Lord Carlisle, that, when considering the ability to identify the perpetrators of crime generally, it is important to have all material available to us so that we can exclude those who are innocent of any offence and, indeed, identify those who may have perpetrated the offence. The new technological improvements give us that ability in a way that we have never had it before. I simply say for the consideration of the Committee at this stage: is it right that we should wilfully disable ourselves from taking advantage of that information when it is available? That is an issue that we shall have to debate.

Photo of Lord Carlisle of Bucklow Lord Carlisle of Bucklow Conservative

That is an argument for everyone in the country to be fingerprinted—and that I can understand. I am worried about those whose fingerprints are taken in the course of examination and who are not proceeded against or are acquitted. Their fingerprints are retained but we do not have general fingerprinting for all people. Surely, there is an issue here.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I accept that that is an issue. I say that it is an issue about balance and proportionality. That is a debate that we should have because the Committee will know that the Government's view, particularly in relation to the most serious offences, is that the risk to the public is so great that it is worth balancing it in their favour as opposed to destroying information which may subsequently have proved to be vital and could have assisted in the identification of crime. It is a real issue and I do not seek to pretend otherwise. It is a question of where we draw that dividing line.

I can reassure the Committee that no improper use will be made of the information contained. The previous debate touched on what we do in relation to international agencies and the protection of the proper conduct of such matters. We have always been jealous of the sanctity of our information and that will continue. However, there will be an opportunity for us to debate these important issues in greater depth. I agree with the noble Lord and others who say that these issues are deserving of proper debate. We should do that when we examine them more fully during the course of the Bill.

Photo of Lord Renton Lord Renton Conservative

At this late hour, I shall not trouble the Minister with all the points in the clause which from the drafting point of view cause me a certain amount of perplexity. But perhaps I may refer to one of them. At Clause 8(3), line 30, we find the expression,

"taking of samples without appropriate consent".

What is the difference between "consent" and "appropriate consent"? Why ever should such a phrase have been inserted?

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

Perhaps I may outline our position on this. We have consistently opposed government proposals to remove the obligations to destroy samples after proceedings against a suspect are stopped. We did so in respect of the Criminal Justice and Police Bill in 2001 and we will do so in respect of this Bill. As regards the building up of a national database, if that is the proposal, it should be fully and openly debated. It should not be added, as happened here, as an after-thought on Report in the Commons, nor debated with only two or three speeches as part of a Bill such as this. The issue of whether we should trade the value of the tool of DNA or the value of the tool or fingerprints in the fight against crime, against our civil liberties is very big. Our civil liberties are very much at stake and we will return to the issue at other stages of the Bill.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

We understand the position of those who sit on the Liberal Democrat Benches. Obviously, having listened to later discussions, it will be for noble Lords to say whether that position remains. With the greatest degree of gentleness, I would say to the noble Lord that we are not trading the issue of the value of the tool of DNA against our civil liberties. Our civil liberties are in danger when we are subjected to severe causes of violence. Our civil liberties are in danger when we are not able to protect those for whom we really care.

It is a balancing exercise and I absolutely understand what the noble Lord says in relation to us doing all we can to preserve that balance. But balance it is and I wish that we could say it could go one way without the other, but it cannot. The noble Lord is right to say that we must find out where the line is drawn.

As to the comments of the noble Lord, Lord Renton, appropriate consent is defined in terms in Section 65 of PACE and varies between adults and juveniles. These are interesting and detailed issues but we shall have to deal with them another time. Perhaps I may say to the noble Lord that this is not a secret method of building up a national database which will in the end include everyone. It is an opportunity to retain information which may greatly assist us in the detection of crime.

Noble Lords are fully aware of the real issues in our country of confidence in our being able to detain and restrain those who seek to behave inappropriately and improperly. That is something we shall have to face. We shall have to find an appropriate answer to those who say that we have got the balance wrong so far.

Photo of The Bishop of Chester The Bishop of Chester Bishop

Perhaps I may briefly intervene to say that on several occasions the Minister referred to this being a balancing judgment between different opinions and liberties. Several times she has referred to quite emotive cases such as the Yorkshire Ripper, and so forth.

I have no objection to powers being given to allow samples to be taken when necessary. However, if someone is not willing to give a sample—a mouth swab is not entirely non-intimate; there is an intimacy in giving that—the case for ensuring that a police inspector or person of similar rank has to authorise it may be part of the balancing exercise. While agreeing with the force of the Minister's comments, I would urge her at least to consider introducing that sort of balancing exercise into the procedure.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

Perhaps I may say to the right reverend Prelate that in relation to the detail we shall have to have a debate and a discussion. I indicated at Second Reading and do so again today that the Government will continue to listen to all contributions made on the Bill and will reflect upon them. Of course, I cannot say to the right reverend Prelate that we will do a volte-face and change our minds on everything in relation to the Bill. However, I certainly assure him that we shall not stop listening.

On Question, Whether Clause 8 shall stand part of the Bill?

Their Lordships divided: Contents, 71; Not-Contents, 23.

Division number 4 Private Parking: Ports and Trading Estates — Criminal Justice Bill

Aye: 69 Members of the House of Lords

No: 21 Members of the House of Lords

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Resolved in the affirmative, and Clause 8 agreed to accordingly.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at seven minutes before eleven o'clock.