The provisions on the retention and use of fingerprints and samples have three objectives: first, putting a counterterrorism DNA database on a firmer legal footing; secondly, allowing such samples taken under the Police and Criminal Evidence Act and the Police and Criminal Evidence (Northern Ireland) Order to be used for national security; and, thirdly, making it easier to allow fingerprints or samples taken under the Terrorism Act to be placed on the National DNA Database.
Clause 18 puts DNA and fingerprint material that is not currently subject to statutory restrictions on a statutory footing permitting law enforcement use for certain purposes. This material includes samples obtained covertly under Part III of the Police Act 1997 and Part II of the Regulation of Investigatory Powers Act 2000. For example, under the Police Act, a warrant may give the police the power to enter someone's home and take away some property in order to obtain a sample. RIPA authorises both covert surveillance and the use of covert human intelligence sources. Unlike the Police Act it does not allow the interference with property.
However, during the course of surveillance, a DNA sample may be lawfully obtained from property without the type of warrant in the Police Act. A good example of this might be where a person under surveillance discards a cigarette or a drinks container. The discarded cigarette or drinks container can be collected covertly and a sample taken. Or, should a covert human intelligence source be used, the person under surveillance could visit the source's house and the sample could be taken from a tea-cup. It also includes material supplied by another law enforcement authority which, by virtue of Clause 18(5), includes both domestic and foreign law enforcement authorities—for example, the French police.
Finally, the provision applies to samples otherwise lawfully obtained in the interests of national security for the prevention/detection of crime, the investigation of an offence, the conduct of a prosecution or for purposes related to the identification of a deceased. Such latter material might include material obtained during a criminal investigation other than through the exercise of covert powers—for example, during a search, from a crime scene or lawfully provided by a body other than another law enforcement authority, perhaps from the intelligence services of another state.
DNA and fingerprint material obtained in this way will form the material that is stored by the Met on the CT DNA database. The principal purpose of Clause 18 is therefore to provide a firm legal base for this database.
These amendments to Clause 18 seek clarification on the samples against which DNA and fingerprint samples obtained through legal covert surveillance can be checked. The amendments seek to prevent DNA samples and/or prints lawfully held by a law enforcement authority being used for the purpose of preventing or detecting a criminal offence under the law of a country outside the UK.
The terrorist threat requires both national and transnational, multi-agency co-operation. It is important that we are able to share our data with national and international partners so that we can properly protect our national security.
Clause 18(4), to which these amendments apply, defines "crime" as,
"a criminal offence ... under the law of ... the United Kingdom or of a country or territory outside the United Kingdom".
The effect is that covertly acquired samples can be checked against other samples for, among other things, the purposes of a criminal investigation in the United Kingdom. Additionally, our covertly obtained samples can be checked against other samples, including those held by a foreign Government or agency, for the purposes of, among other things, a criminal investigation in a foreign country—terrorist training, for example.
We are resisting these amendments because there is a real need to share this data internationally, especially where terrorism is concerned, and there are appropriate safeguards in place. For example, we may have obtained samples during a covert operation of a group of individuals we believe to be involved in terrorism. Some time later, a sample may be found overseas by a partner agency that arrests an individual at a terrorist training camp. Clause 18, unamended, allows us to check the samples we hold, which are not subject to statutory provisions, with samples held overseas. The clear benefit of such comparisons is that we can build up a much better picture of the dynamics within complex terrorist networks which span the globe. This is currently crucial to counter the threat that we face. Being able to build up this clear picture is of great and tangible benefit to our national security.
There are safeguards against the abuse of samples held subject to Clause 18. In line with his existing powers, the Information Commissioner will provide independent oversight of the database with regard to data protection issues. Additionally, the Metropolitan Police Service will liaise with the newly appointed forensic science regulator to establish standards for DNA analysis, validation of the CT DNA database and protocols for international exchange of DNA data. Working with the custodian of the national DNA database, the MPS will ensure compliance to standards it has set, which are accepted and adhered to by forensic laboratories. Additionally, it will work with the custodian to develop new protocols for cross-searching between the national and CT databases, ensuring that public confidence, counterterrorist investigations and national security are not compromised.
Noble Lords will be reassured to know that this definition of crime is already included in paragraph 20(4)(a) of Schedule 4 to the Terrorism Act 2000. I hope that I have been able to reassure the noble Baroness and that she is able to withdraw her amendment.