Second Reading

Part of Crime and Security Bill – in the House of Lords at 7:31 pm on 29th March 2010.

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Photo of Lord Dear Lord Dear Crossbench 7:31 pm, 29th March 2010

My Lords, we have yet another Bill dealing with policing, crime, security and the judicial process. With that in mind, I was not surprised to read a letter in the Times this morning written by Paul Mendelle QC, the chairman of the Criminal Bar Association. He was talking about the problems of young barristers but he used a phrase which I thought was particularly apposite when he referred to one bloated Bill after another going through the judicial process. He was not, I hasten to add, talking about the matters which concern us today but touched on the generality of more and more legislation coming before us.

I have only four years' experience of speaking from the Cross Benches but I wonder why a Bill of this gravity has been introduced with only five working days of Parliament left. If, as many of us expect, the general election is called on 6 May, the dissolution of Parliament will take place and leave us very little time to consider this matter. Is it to be consigned to the wash-up? I know enough about a wash-up now to know that it is some sort of quasi-judicial mincing machine which disposes of Bills which have run out of time. If I may say so, and not at all in jest, it would be wholly inappropriate for matters contained in this Bill-dealing, as it does, with issues of criminality, freedoms, rights and so on-to be consigned to that process.

Having said that, there is much to applaud in principle within the Bill, as others have mentioned. I shall go quickly through some of the measures because other noble Lords have taken more time over their expositions and have gone into more detail.

On Clause 1, which deals with stop and search, the Explanatory Notes state that the new proposals will cut 15 minutes off the current procedure. Those 15 minutes will give you a rough idea of the amount of bureaucracy loaded on to the police in generality, but particularly in this instance. It is stated that this will save £4.2 million per annum on the police budget. I am not sure where the maths come from-I have not worked it out for myself-but clearly something needs to be done to remove that bureaucracy and to reel us back, if you like, from its present levels. Some might say that the Bill does not go far enough, but we are talking, in all sincerity and seriousness, about maintaining a balance and proportionality between law enforcement and stop and search on the one hand, and the exercise of reasonable power on the other. As the noble Baroness, Lady Harris of Richmond, has pointed out-I support very much of what she said-it is a serious matter but it should not become bogged down with unnecessary bureaucracy.

As to Clause 34 and the following clauses on gang injunctions, there is a big problem on the streets with gangs. In the past seven days we have seen reported widely in the national press two devastatingly sad occasions of teenagers being stabbed to death by gangs on the streets of London. It goes on elsewhere, of course, throughout the year. I suspect that the devil is in the detail in these clauses but something needs to be done. We should concern ourselves with a reasonable amount of time within your Lordships' House to look at that problem.

Clauses 40 and 41 require families to take responsibility for the anti-social behaviour of their children. The noble and learned Lord, Lord Lloyd of Berwick, has spoken of his fears about invoking injunctions and bringing that into the criminal law-I agree with his fears on that-but anti-social behaviour by children and families who take no notice of what their children are doing at any hour of the day or night is another matter that we need to consider.

Clause 42 seeks to amend the Private Security Industry Act 2001. The noble Baroness, Lady Meacher, referred to the racket which goes on among licensed wheel-clamping outfits and we are now seeking to encompass businesses within the legal process. As the Security Industry Authority has been in place for seven or eight years already, I wonder why we are only now turning to encompass wheel-clamping businesses rather than the people concerned. Why has it taken so long to get to grips with this? That we must get to grips with it there is no doubt.

Clause 45, which seeks to prevent the use of unauthorised mobile phones in prisons, has already been referred to. Of course we have got to stop leaders of criminal gangs continuing to run their businesses from inside prison while they are serving current sentences-as many of them do-and arranging for drug drops within prison and so on. It has been a matter of concern for those in the criminal justice system for a very long time.

In the main, I wish to speak about the use of DNA. As we already know, this has created a great deal of interest and comment. I declare two interests at this point. First, as some of your Lordships will know, I served in every rank in the Police Service, from constable through to Inspector of Constabulary, for over 30 years. In referring to DNA, I should declare that I am the non-executive chairman of two separate companies which provide laboratory analysis services for exhibits taken from the scene of crime, not only for the police and other law enforcing agencies but also for the defence, both in this country and abroad. It is confidently expected that those two companies will merge very shortly and I may well be the chairman of the newly merged entity. However, I should point out that those companies are not, and will not be, involved in the maintenance of the databases, the issue which concerns us today. I do not have an interest in the mechanics of data collection and recording.

Reference has been made to fingerprints. From the days of Patrick Henry-a colonial police officer in the Middle East and Far East at the end of the 19th century who invented the fingerprint system-fingerprints have been accepted as being 100 per cent accurate. DNA, with its short history of forensic use, is also now regarded as being 100 per cent accurate. DNA is a much more powerful tool than fingerprints for at least two reasons. First, there has to be 16 points of similarity with the fingerprints of an accused person before the print in question can be used in court. It is very difficult to find 16 points of similarity because usually fingerprints are smudged or do not have 16 points present.

Compare that to DNA, where the sophistication of the processes has gone on exponentially, particularly in the past five or six years, to a point where a single flake of dandruff, a single hair, a dot of body fluid not much bigger than a pinhead, saliva on a cigarette butt, and other examples, will provide a 100 per cent DNA match-a powerful tool indeed. It also has within it, and can provide, genetic history. For years fingerprints in the possession of the police were only kept where a conviction had ensued. When DNA came onto the scene, the system quickly eased to a position of "Keep it all". That is what we are considering today, particularly the case of S and Marper v United Kingdom-the European Court of Human Rights case in 2008 which was ruled to be incompatible with the right to respect for private life, contrary to Article 8 of the European Convention on Human Rights. As we already know, the case was particularly concerned with the retention of DNA and fingerprints from persons not convicted of any offence-in other words, from innocent people, arrested on suspicion but not convicted. The Minister talked about the case of Thompson and I understand what he was saying. Two very serious sexual offences were cleared up years later by somebody who was arrested and then cautioned. The case was made by the Minister that a caution does not rate as a conviction. That is a hair to split, if I may put it in those terms. Since the person has already admitted the offence, I see no reason why cautions should not provide DNA for the database.

I take issue with the Government's response to the findings of the European Court of Human Rights. I, too, believe that the retention of DNA for up to six years of those arrested but not convicted is wholly disproportionate. It raises fundamental questions of privacy and individual rights and freedoms set against securing the safety of the state and of individuals. That is a very fine balance that should not be approached timorously but neither should it be approached in an overly zealous manner. As we have heard, the Home Office and at least some of the police argue for change. We have been told by the noble Baroness, Lady Hamwee, that the Police Federation has exercised a note of caution on this but ACPO is probably pretty full-bodied in its support for the Home Office on this Bill and also for the retrospective collection of DNA in cases of serious violent and sexual assault. I would be interested in the position of the CPS on this. I know it is not exactly within its frame of reference since it considers the evidence put before it by the police, but I would like to know what it thinks about this. Maybe in due course we shall know.

In terms of balance, I acknowledge the desire of those who are in the law-enforcing machine to extend powers. You might say in analogous terms that any craftsman will always accept the offer of a sharper tool if it is made available to him. Powerful arguments in favour of the Bill are mounted by very worthy individuals. I also reflect on the analogy of electricians who deal more with electricity as their skills increase. And as their skills increase, so they seem to gain a greater respect for what it is they are dealing with-the power of the electric current. Anyone involved in the exercise of power and authority, of which I have had my share, should be very conscious of its proper use and not misuse it. I make the plea for a proper balance against the background of what I perceive to be a steady increase in the intervention of the state into human relations of all kinds. The figures are variable. I am told by some that we have created 3,000 new criminal offences in the past 10 or 12 years. Some put the figure as high as 4,000. I am not sure where the arithmetic takes us, but certainly there are a lot more ways of getting into trouble than there were a few years ago.

We have had constant attempts to erode a whole range of fundamental rights. One well remembers the abortive attempt to introduce a limit of 90 days for terrorists to be held without charge. A 56-day limit was talked about. When I had the honour to table the amendment against an extension to 42 days, your Lordships voted overwhelmingly to hold the line at 28 days. Another example against the canvas that we are debating here today is the quite enormous step change that DNA has provided. It is a very powerful tool indeed in the forensic armoury. I, too, as others have mentioned, would be quite happy to consider the Scottish system as a fallback measure. I will not go into that in detail. It has been laid out before your Lordships already.

In short, I have heard nothing to date to cause me to support the proposals concerning the retention of DNA for those who are yet to be proved guilty. I remain totally unconvinced that the gains outweigh the disbenefits, and were there to be a vote today, I would vote against the proposals to retain DNA where no conviction ensues, and I would need a great deal of persuasion to support samples being taken retrospectively.