Clause 81 - Restriction on use and destruction of fingerprints and samples

Criminal Justice and Police Bill – in a Public Bill Committee at 3:15 pm on 8th March 2001.

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Mr. Hawkins

: I beg to move amendment No. 276, in page 68, line 2, after `retained', insert—

`with the consent in writing of the person from whom they were taken'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to take the following amendments: No. 277, in page 68, line 16, leave out `(whether'.

No. 278, in page 68, line 17, leave out—

`or of a country of territory outside the United Kingdom)'.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

These are very important matters, and I make no apology for taking time to deal with them. I hope that the Minister will not suggest that our points are legalistic, nit-picking or delaying.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I will give way in a moment. Before doing so, I want to deal with a matter raised by the Law Society in its briefing to my hon. Friends and me, which it regarded as the most important of its points. It was the first item in that briefing, and that shows how significant the professional body that represents all solicitors in England and Wales considers the matter to be. The briefing states:

``The Bill makes provision for the taking of intimate samples and fingerprints before a person has been charged with a crime. In addition, under the terms of the proposed legislation, the police will no longer automatically have to destroy samples or fingerprints once the individual is cleared of the offence or will not be prosecuted. Their samples and fingerprints may be kept indefinitely.''

The Law Society wants to know whether the public will be aware that, when assisting police, or after being cleared of an offence, such information will be held by the police for future speculative searches in the investigation of other crimes. It also asks whether that will mean that those who might come forward voluntarily would be less likely to do so. We are concerned about law-abiding people being encouraged to come forward voluntarily. The Government are unwise to propose the measure in the way that they have and in such terms.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

There are several points that we wish to raise, but before I go on I will give way to the Minister.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I just wanted to reassure the hon. Gentleman that we entirely accept his point. The matter is important, and certainly far more so than the definition of ``the British Islands''.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The Minister may find that the British electorate regard matters such as the way in which the United Kingdom is described more important than he thinks. That may come home to him and his hon. Friends more quickly than he realises. However, we will not go down that road again.

One of the reasons for the matter being so important is that the Government spent some time in the explanatory notes setting out some of the details in relation to DNA and the way in which samples will be retained. They refer in detail to the decisions of the Court of Appeal criminal division in R v. Weir and a case called R v. B (Attorney-General's Reference No 3/199) May 2000. We now also have the decision of the House of Lords.

I shall describe a serious case, concerning a 66-year old woman home owner, who was burgled. The burglar went to the lady's bedroom, threatened her, punched her several times and then tied her hands behind her back with flex and raped her anally. He pushed her into a hall cupboard and blocked its door with heavy items. After taking money and other items, the burglar left. At 7 pm that evening, the police found the victim in the cupboard. The judicial division of the House of Lords said that

``The ordeal of the woman was horrendous and the offence of rape was of the utmost gravity.''

The offence was in January 1997.

In January 1998, nearly a year later, the police arrested and charged the defendant concerned in the appeal with an unrelated offence of burglary. When he was arrested, he gave a false name to the police. A saliva sample was lawfully taken from the defendant without his consent in connection with the burglary alone under section 63(3)(a) of PACE. If the defendant had given his real name to the police, they would have immediately discovered that his previous convictions included one for affray. That conviction would have permitted the police to obtain a DNA sample and which would have justified in law the retention of the sample, whatever the fate of the burglary charge. In any event, on 12 May 1998, the sample taken from the defendant was submitted for DNA profiling.

On 23 August 1998, the defendant was acquitted of the burglary, the offence for which he had been arrested in January 1998. The Attorney-General had to concede that, under section 64(1) of PACE, the sample should then have been destroyed as soon as was practicable. In fact, it was not destroyed. Information derived from it, namely the DNA profile, remained on the DNA database.

On 6 October 1998, a match was made between the DNA profile obtained from the swabs taken from the rape and assault victim and the DNA profile obtained from the defendant's saliva. Relying on that match, the police re-arrested the defendant in October 1998 regarding the offences committed against the elderly victim in January 1997. In an interview, the defendant denied that he was involved in the offences and refused to give consent to the taking of an intimate sample. A police superintendent authorised the taking of a non-intimate sample of plucked head hair. On 18 October 1998, a forensic science laboratory confirmed that a DNA profile obtained from the defendant's plucked hair matched the DNA profile on the swabs taken from the rape and burglary victim.

In the opinion of the forensic scientist, if the DNA on the swabs had come from someone unrelated to the defendant, the likelihood of obtaining such a match would have been one in 17 million. Not surprisingly, the defendant was charged with the burglary, assault and rape. The issue in the case went all the way to the judicial division of the House of Lords. What was at question was whether the failure to destroy the sample meant that the case against the defendant was fatally flawed.

I have gone into some detail because it is important for all members of the Committee to understand the seriousness of the offences with which we could be dealing. I shall refer to one other point from the description of the case, because it relates to what we do in Parliament and the significance of our debates in Committee. The House of Lords obviously looked back at what was said by the Lord Justices of Appeal in the criminal division of the Court of Appeal.

In the Court of Appeal's judgment, Lord Justice Swinton Thomas said that, in his view:

``The words of the section are clear. In our judgment, the provisions contained in section 64(3B)(a) and (b) stand together. We do not accept Mr. Perry's submission that if Parliament had intended to exclude the exercise of a judge's discretion, it would have said so. In our judgment, on the contrary, if Parliament had intended that a judge should have a discretion in the circumstances envisaged in section 64(3B)(a) or in (3B)(b), Parliament would have said so. It would have been perfectly possible for Parliament to conclude that the fight against crime was so important that there should be no restriction on the use of DNA samples, so that where such samples were lawfully obtained by the police the information derived from them could be retained on a database for all purposes. It would have been equally possible for Parliament to enact that whilst information derived from samples taken from persons cleared of involvement in offences should not normally be used for the investigation of other offences the investigating authorities should have a discretion to use that information for the purposes of a further investigation in exceptional circumstances only.''

Time after time in that passage, Lord Justice Swinton Thomas refers, as a judge in the Court of Appeal, to the importance of interpreting our intentions in Parliament. I am sorry about the relative emptiness of the Labour Benches, because what I have outlined goes to the heart of our reasons for line-by-line, clause-by-clause, sometimes even word-by-word scrutiny of Bills. Far from being the lawyers' nitpicking points that the Minister has complained about—usually when the Parliamentary Secretary has been out of the Room—our concerns are central. We are talking about the way in which the courts deal with exceptionally serious offences.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office 3:45 pm, 8th March 2001

I have no objection to the kind of argument that the hon. Gentleman is now making. In fact, I think that it is the kind of thing that we should discuss all the time. My complaint is about the other kinds of debate that we have had, which take time away from debates like this one, about possibly one of the most important clauses in the Bill.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The Minister is clearly on the record as having attacked my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell), a former Attorney-General. One of his criticisms was that my right hon. and learned Friend was using lawyerly, nitpicking arguments. Extraordinarily, it now emerges that the Government will withdraw clauses 7 and 8—precisely the ones about which my right hon. and learned Friend made his detailed comments, for which the Minister attacked him in his absence.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Does my hon. Friend recall that the Parliamentary Secretary, who is taking a break at the moment, said, in relation to clauses 7 and 8:

``I know that hon. Members are desperate to string out our proceedings, but there are important provisions in the Bill that need to be debated.''?—[Official Report, Standing Committee F, 15 February 2001; c. 178.]

Subsequently, having complained like mad, the Government deleted those clauses from the Bill, because the points that we made were right. If they had done that in the first place, we should have saved an hour.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

My hon. Friend is right. There is no doubt that, by his attacks on my right hon. and learned Friend the Member for North-East Bedfordshire, the Minister stands condemned. Most of his attacks were directed towards my right hon. and learned Friend's quite proper scrutiny of clauses that have now been withdrawn.

I am glad that, at least on the present occasion, the Minister, despite his often expressed anti-lawyer prejudice, concedes the importance of the issue that I now want to return to. I agree. It is one of the most important passages of the Bill. Improvements and changes are needed. One of our suggested safeguards is amendment No. 276, which bears directly on the matter to which the House of Lords has been giving such detailed scrutiny in the appeal decision to which I referred.

The matter is entirely to do with the liberty of the subject, and I imagine that the hon. Member for Southwark, North and Bermondsey will have something to say about it. Perhaps, like me, he has had professional experience of cases that depend on forensic scientific evidence. In my years in practice at the Bar, I had enormous respect for the work of forensic scientists. I am saddened by the frequency with which Members of Parliament without the relevant practical experience refer to forensic matters, thinking that the word ``forensic'' refers to the scientific side of things. Of course we should always use the term ``forensic science''. The use of the word ``forensic'' denotes the relationship of the science to the court—the forens—to be pedantic for a moment.

Amendments Nos. 277 and 278 may at first sight appear to be merely drafting matters, but they are matters of substance and they operate together. My argument comes back to the point made by the hon. Member for Southwark, North and Bermondsey in his last contribution to the previous debate. As he said, we need to ensure that safeguards are in place to prevent the appalling abuses being committed by the present dictatorship in Zimbabwe. What would be the position if a country where human rights were not being observed were to make a request? We believe that safeguards are needed.

I do not wish to detain the Committee unduly but, because the matter is so serious, the Government must consider the matter carefully. If they cannot accept our amendments, I hope that that they will at least concede that the question should be reconsidered between now and Report. The fact that the Minister intervened on me to agree that those matters are important, and that paragraph 186 and two other paragraphs of the explanatory notes dealing with part IV include a lot of detail about various cases, including the one that I referred to that had then been decided only by the Court of Appeal, a decision later reversed by the House of Lords, reinforces the seriousness of the matter.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

We shall support the amendments if they are pressed to a Division, but we shall oppose clause 81 for reasons that can be anticipated.

There is all the difference in the world between information held by the police that is obtained lawfully in the pursuit of people suspected of having committed offences who are then convicted, or information, evidence or material that is voluntary given to the police by members of the public; and using material, evidence or information that was given to the police involuntarily by someone who was being investigated and was thus subject to the authority of the police but who was subsequently released without a conviction.

Someone who goes through the hands of the police and comes out at the other end of the criminal justice process as not guilty of the offence about which they were being investigated or with which they had been charged is, in law, entirely guiltless, as are those who have never been through that process. Society believes in several things that we in Parliament should hold dear. The first premise is that people's liberty should be respected and invasions of liberty should be carried out as infrequently as possible. Maximising the liberty of the citizen against the state, whether or not the state is acting in the good interests of society, is a principle that should be compromised only with good reason and if the general consensus is that it should be done.

The second premise, which is held by all the nations of the United Kingdom, is that people are innocent until proved guilty. Those who go through the hands of the authorities and are found not guilty must be presumed innocent. We in England do not have the middle-way alternative verdict available in Scots law of not proven, but even in Scots law that verdict should not imply guilt. I believe that the same principle should apply to those found not guilty in Scots law as applies elsewhere in the UK. They should be entitled to the same rights as those who have never been through the hands of the police.

The Government concede that people who have always been innocent and who never been in the hands of the police should not lose their right to resist having their body samples, fingerprints or DNA samples taken and held without their authority. That puts in a different category from the rest of us people who happen by the accident of life to pass through police hands on the basis of suspicion, but are found not to be guilty, and who should be presumed to be as innocent as someone who has not been investigated. That is an entirely improper and prejudicial differentiation that for the rest of their lives will give those people a status with the authorities that disadvantages them in terms of their freedom and liberty.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

When the hon. Gentleman uses the phrase ``disadvantages them'', does he mean in the event that they have committed a crime for which their DNA or fingerprint has identified them? In what sense does he mean that phrase?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

It disadvantages them in the sense that material evidence samples are in the hands of the authorities, which they do not have on other innocent people. I mean it in that straightforward sense. The authorities have information about them that they do not have about other innocent people for no good reason other than that they happen to have been subject to police arrest.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I understand the point about information being different between such people and other innocent people, but why should the authorities having that information be a disadvantage to such an innocent person?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

Because the authorities' holding of information on them is not the norm in a society in which we concede information only in exceptional circumstances. I take the view that all information about me, the Minister and other Committee members should be private unless there is agreement and justification for its being made public. Information should be held on us by others only if we consent, or if there is a good case.

We have the same argument about private selling agencies, banks, cash cards and so on. We are at present fighting a battle in which private sector companies seek all the time, before they give us any service, to know our name, our address, our postcode, our mother's maiden name, our wife's date of birth—a whole list of things that appear to me to be gross intrusions into our liberty. We do not have to submit to that, because we do not have to have cashpoint cards from bank X or a loyalty card from multiple retailer Y, but in this case there ain't no choice.

Surprisingly for a Labour Government, the Government propose that someone who goes through the hands of the police should have information taken from them and retained without their consent. It will be entirely an accident whether their information remains in the hands of the police; it will depend on the police investigation, which may or may not have been well organised, accurate or justified by intelligence-led policing.

My hon. Friend the Member for Taunton put it to the Minister that there is no fundamental difference between arguing for the clause and arguing that everyone should have their DNA sample made available to the state when birth is registered, or when the baby is born and the umbilical cord is cut—that when the nurse comes in someone should come in on behalf of big brother and take all the samples that the authorities may need for the rest of the baby's life. I am sorry, but I am not signed up to that society. I do not know all the details, but I saw some programmes about whether that would be appropriate to deal with crime in Iceland. I gather that there was a great debate, and it was extremely controversial. We should not go down that road.

It is entirely justifiable to argue that where someone has a record of criminality, there is a greater propensity to further criminality, but not that where someone has no record of criminality, information should be held that gives the police an advantage that they do not have over anyone else. One might argue—though I would not—that that case was difficult to make if DNA sample matching were perfect. I am not a scientist, but I understand that it is very good but does not always give the right results. If there may be a scientific and technical failing, that is another reason for resisting the proposal that authorities should hold such important information on innocent people against their will.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office 4:00 pm, 8th March 2001

I understand the hon. Gentleman's point, but it is important not to overstate it. My hon. Friend the Member for Norwich, North (Dr. Gibson)—a bio-technologists who chairs the all-party group on science and technology—recently asked some parliamentary questions on the issue, which I answered as fully as I could. Information is available on international standards for the accuracy of the DNA technique. The weight of the hon. Gentleman's point, which I accept, depends on the scale and nature of the probability of mistakes being made. The chances of such mistakes are remote—the hon. Member for Surrey Heath referred to a one in 70 million chance—and it is important to put the philosophical point, which has weight, within the scientific context of the very small risk.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I understand exactly what the Minister is saying; it is a philosophical, state versus individual, argument. The risk of an inaccurate result when DNA samples are matched is very much a supplementary, or secondary argument. I did not know the exact figures and I have not seen the answers to which he referred, but I shall make it my business to look at them. My understanding was along the lines of his answer, that the scientific assessment is that there is an extremely high probability of accuracy and a low probability of inaccuracy.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Does the hon. Gentleman agree that, although both he and I have great respect for forensic scientists and forensic science laboratories, part of the problem with the society that he said he has not signed up to—he and I both fear that the Labour Government, with their recently discovered authoritarian tendency, will move towards it—is that however careful forensic scientists are, mistakes are made. It is not just a matter of statistical probability; some major miscarriages of justice arose from the negligent or malicious misuse of forensic scientific evidence.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I was about to come to that point, which was well made.

In my relatively short time as a member of the Bar, between working on the other side of the channel and being elected to Parliament, I had much experience of cases where there were mistakes in the identification of materials, scientific inaccuracies, the path lab getting it wrong or the sample being lost or mislaid, just as medical records go adrift. Even if I was minded to agree with the philosophical point, I would need to be satisfied that I, as a citizen, had the opportunity to assess whether the system was accurate, throughout its processes. Many people do not have such opportunities, and I doubt that the independent scrutiny of the accountability and transparency of record keeping is such that everybody can have confidence in it.

We are not yet at the stage where we can say that there will not be any case in which someone will argue that there was inaccurate marking, tagging or transfer or a mismatch between information that left one place and arrived at another. Until we can be sure that there is a perfect system—if we can ever be sure—I have another reason for resistance and reluctance. It is a little like the arguments about computer databases. They are generally wonderful, but sometimes go wrong. I am not satisfied, and I have never had any reason to be persuaded, that the system whereby all the information is held will not at some stage get something wrong. Of course, we can build in checks, balances and opportunities to inspect it, but that still does not guarantee a perfect system, nor will it. As the old cliche says, what comes out depends on what one puts in. Occasionally, people may make mistakes when inputting the information, which may mean mistakes in the information that comes out.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I understand the hon. Gentleman's point, which has substance and is more powerful than his earlier one about scientific error. In fact, when I visited people at the Forensic Science Service recently—which is probably in his constituency—I discussed with them in great detail precisely his point. However, is his not a philosophy of despair? Does it not follow from the logic of his argument that it is not worth compiling a DNA database?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

No. I am absolutely aware of the benefits of science, and especially forensic science, in the investigation of crime, and of how much the police increasingly rely on it. To be honest, it is only the development of the old CID work of the great novels, films and television serials of the past. Forensic science is used to make matches, which is particularly important for serious crimes of violence. For example, forensic evidence has already played a significant part in the Damilola Taylor inquiry. We hope that that will lead to a satisfactory conclusion and people will be charged soon and correctly and convicted appropriately. I am entirely aware of the importance of forensic science: it has a huge role to play, and the police will increasingly rely on it.

This whole debate is about the relative liberty of the individual against the state. The proposition is being put in the context of the Bill without all the preparation that we should properly have. We have had important debates in the House on genetic testing, gene-related science and whether it is appropriate to permit research on embryos for the purpose of medical cures for permanent and debilitating conditions such as Parkinson's disease. As I recollect it, the two votes that we had in the Commons and the Lords were preceded by two full days of debate about whether it was appropriate to go down that road. We considered the scientific evidence and the evidence produced by Committees of both Houses, listened to the views expressed and proceeded carefully.

However, I do not think that we in this country have had a debate at all on this issue. We have not faced the question whether it is appropriate to move to a society in which the police can, without the individual's consent, hold such information. It is a large debate and goes to the heart of what information on the individual should be held by the authorities. Although I understand where the proposal comes from and the reason why the police and the National Criminal Intelligence Service would argue persuasively for its inclusion, that does not justify taking a decision of this magnitude in this way, at this time, without a wider debate.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I am sorry to intervene again, but this is an important issue and I want to be absolutely clear on the hon. Gentleman's position. Is he saying that there are circumstances in which, had there been such a debate, he could imagine supporting the measures in the clause?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I do not think that I would be persuaded, but it is a little like the situation with the referendum on the euro. We should not have such a referendum without a great national debate about whether we should join. The Government should not introduce a proposal unless we have had a significant debate that shows that the public understand the implications and have signed up to it.

There are a couple of less important procedural points. We are about to have Lord Justice Auld's report, which deals in part with this issue. I gather that he has said that he will not now sign it off until after an election if an election is held this spring, so that it does not become an election issue, but we are likely to have it before the end of the spring.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Will the hon. Gentleman confirm the spelling of ``Auld'', because the Hansard report of an earlier sitting referred to ``the old report''?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I can confirm that it should be ``the Auld report''.

I understand the police's argument in favour of increasing the number of people on the database and having a larger information bank against which suspects can be checked when arrested. It is, however, a poor argument, because the police could be given all sorts of extra powers to increase convictions. If there were enough money in the Budget, if the Chancellor had been so minded and if further recruitment were possible, we could increase the police force 10 times over. That would greatly increase the likely number of convictions, but we would require a national debate before proceeding with that. We could take away the rights of defendants and interpret the right to silence in a particular way to count heavily against them. There are all sorts of ways of increasing the number of convictions.

I am unhappy with the current rate of convictions. Together with cautions, convictions apply to only 3 per cent. of offences in the British crime survey and 24 per cent. of recorded crimes. That is not good enough. We need to improve the detection rate through better policing, and the police need to bring their activities up to speed. More intelligence-led and professional policing is necessary and the police must have all the kit, radios, vehicles and other tools that they need. We must ensure that we have enough police and that the criminal justice system works well, but we must not keep edging away at people's liberties.

Here is another surprising element of policy from a Government who failed to mention it in their manifesto. Civil servants' and the Government's desire to be perceived as strong on law and order is undermining the understanding of some elements of the Labour party—it has always had an authoritarian streak—that civil liberties need to be defended against people in authority such as the police, civil servants and others.

We must resist this measure, as we must resist removing the right to choose a trial by jury—another plank in the Government's current programme, to which they were expressly opposed at the general election. The Government have no public authority for changing their position. On a wide range of matters, they are eroding the balance between the state and the individual, which saddens me and does no credit to the Minister, the Government or the country. We are supposed to be a country in which liberty burns brightly and is taken away only by agreement of the overwhelming majority of the public, and in which the rights of minorities are defended.

Policing must be by agreement, but this proposal certainly does not have the agreement of the Liberal Democrats. I expect that it will not have the agreement of Conservative members of the Committee or, I hope, of those elements in the Labour party who are traditionally committed to civil liberties. The Minister should either accept the amendments or withdraw the clause. If not, we shall certainly return to the issue on Report, when I expect to gain considerable support. Let me tell the Minister now that we will not agree to include these proposals in any negotiated Bill in the event of an early election. It would be better if the proposals were removed from the Bill now, so we would have one less controversial matter to worry about in the weeks ahead.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate 4:15 pm, 8th March 2001

First, I congratulate my hon. Friend the Member for Surrey Heath and the hon. Member for Southwark, North and Bermondsey on the manner in which they highlighted the important issues in the debate—and I shall not go over the same ground again. I agree with Liberty's conclusion that

``There is no logical difference between this and the compilation of a mass DNA base of all individuals.''

If a DNA database is created of people who have not been convicted of an offence but who cannot have an earlier consent, given as part of a mass screening, to inclusion withdrawn, as the hon. Member for Southwark, North and Bermondsey said, there will be two classes of unconvicted people—those for whom the police have DNA bases and those for whom they do not.

I therefore wholeheartedly agree with the hon. Member for Southwark, North and Bermondsey that that must be the subject of a much wider and more serious debate about the rights of the individual as against the rights of the state. I have not come to a conclusion on the wider issue of whether it is right for there to be a DNA database of the nation—as it effectively would be if, as part of the contract between the citizen and the state, all citizens had their DNA entered on to a national register after their birth, in the way suggested by the hon. Member for Taunton. That is the logic of what the Government are doing. There is a perfectly respectable case for that, because of how important DNA will be in establishing identity in criminal cases. It will also have some part to play in civil cases, in terms of people's entitlement to treatment on the national health service or payment of social security contributions, for example. It will become a way in which the state can establish someone's identity. I do not know how exactly many national insurance numbers exist but it is perhaps around 80 million—while there are only 59 million of us. The system is clearly being used fraudulently on quite a wide scale. That form of identity check is a method by which one can establish that people are entitled to citizenship of this country and the rights that that confers.

In terms of the enforcement of the law—which is in all our interests—we must ask whether there is a case for surrendering part of our liberty to give the police a database of us all, in order to bring people more effectively to justice. That is an immensely difficult philosophical question. I instinctively come at such issues from a libertarian perspective. I understand why the Government are doing what they are doing, and am convinced by the logic of it, but I am concerned that an attempt is being made to widen the DNA database by subterfuge, so that people who willingly come forward to take part in a screening process—for example where the police are checking all males in a particular village in which a rape has been committed in order to eliminate people from their inquiries—become part of a subtle and surreptitious attempt to widen the DNA database. Samples would not be destroyed and the police would gradually move towards having as many DNA records as possible.

If that happens, it must be done in an upfront way. We must be honest with the electorate and have the debate; we must be prepared for the Government—whoever they are—to say, ``This is necessary to protect the wider interests of society to enable police to detect crime, to bring people who have committed rape to justice.'' The Government should also make it clear that such people will think twice about committing offences of that kind if they know that they are registered on the DNA database.

The Police Federation wanted those provisions included in the Bill. In a letter to my hon. Friend the Member for North-East Hertfordshire, Fred Broughton said:

``We believe there to be a dilemma in relation to the retention of un-convicted persons samples, a dilemma that the Government must argue out themselves in respect of both the Human Rights and Data Protection Acts.''

We also need to argue out the relationship between the citizen and the state. There is dishonesty about the Government's attempts to use the Bill to widen the DNA database. We must have an upfront and open debate. There should not be two classes of unconvicted citizen at risk of having their DNA retained by the police.

Here we are on a wet Thursday afternoon in Committee Room 9 at the end of our consideration of the Bill. It is hardly the national forum in which to conduct a fundamental debate on this principle. The hon. Member for Southwark, North and Bermondsey stressed that we would return to it on Report, but we do not have much time to conduct that debate either. The issue is so fundamental that I am certain that the House of Lords will have much more to say about it when the provisions are sent to the other place. It should have been taken to its logical conclusion, perhaps without the Government adopting a particular position in the first place. They could have pointed to the advantages and disadvantages and stimulated a national debate.

I am concerned about the conduct of science in criminal trials. It is always an issue when scientific evidence is presented to non-scientists. Juries are largely composed of non-scientists, yet they are often told that the scientific evidence is unarguable. That is my worry about DNA profiling. We do not yet know how testable DNA is, or how reliable databases are. It raises all the issues mentioned by my hon. Friend the Member for Surrey Heath about the reliability of forensic laboratories, and paper processing—ensuring that the right sample is attached to the right name—is another potential difficulty.

The danger is—we see it with Ministers—that, when a case is presented, numbers are clung on to because they appear to represent points of certainty in the arguments. It sometimes seems that all the subjective arguments fall when certainty or objectivity is injected into debates through numbers or science. It might appear only later that the evidence, although scientific, was subject to error. As I say, people might try to cling on to certainty when they are making judgments about the guilt or innocence of individuals.

It is not that we do not support the Government's intentions or fail to understand their reasons for widening the DNA database. The problem is that we have not yet reached the stage at which these provisions should be smuggled on to the statute book.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I, too, appreciate the measured way in which the hon. Member for Surrey Heath put the case. Does the hon. Member for Reigate agree that, if we introduce the system, people might be much less willing to volunteer information on the grounds that they could lose their rights thereafter—for the rest of their lives? There could be adverse as well as favourable consequences.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

The hon. Gentleman is right, and he raises a legitimate cause for concern about people's willingness to help the police to eliminate suspects from their inquiries in order to narrow the focus of their investigations. Individuals may wonder whether to help the police. Usually, as citizens, they would want to do so. However, citizens might find themselves faced with a decision that may affect the rest of their lives. Volunteering DNA is effectively giving a blank cheque to the police. If other citizens' DNA has not been given and is not owned by the police, individuals who have volunteered it are at a disadvantage.

The Minister may argue that people will be protecting themselves from a future conviction when a criminal offence has been committed, but who knows what the future holds for any individual, so why should people expose themselves to that possibility? It is on that issue that the Government's approach to the balance between the individual and the state has gone wrong. Their approach will not benefit the wider public interest if it puts people off coming forward to help the police conduct inquiries in which many people have to eliminated from their suspicions.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

The discussion of the issues has been excellent, with all three speeches having been to the point. I want to deal with two subsidiary issues at the beginning. The point made by the hon. Member for Southwark, North and Bermondsey about civil servants was unwarranted. The civil service monolith did not drive the Bill forward, with supine Ministers agreeing to a long-standing ambition to transform the law. As always, the civil servants provided excellent advice on the issues. The decision to proceed was taken by my right hon. Friend the Home Secretary and me in the usual processes of Government. The decision was political, not something on which Ministers caved in to pressure from civil servants who told us to act because not to do so would let down law enforcement for the future of civilisation.

The language about removal of liberties is unwarranted in relation to the issue. Imprisoning people and refusing to allow them to speak in public is qualitatively different from the police being able to retain people's fingerprints and samples. I know that liberty is on a spectrum, but to talk of removal of liberties is a rhetorical step too far.

It is important to stress the reasons why the Government have proposed the clause. As hon. Members have said, it will allow the retention of all fingerprints and samples taken on suspicion of involvement in a criminal offence and will enable them to be used for the prevention and detection of crime, the investigation of an offence and the conduct of a prosecution.

The hon. Member for Surrey Heath said in his introduction that the changes have been made as a result of the decisions of the criminal division of the Court of Appeal in R v. Weir and R v. B (Attorney-General's reference No. 3/199) May 2000. The cases raise the issue of whether the law relating to retention and use of DNA samples on acquittal should be changed. In the two cases, compelling DNA evidence that linked one suspect to a rape and the other to a murder could not be used, and neither suspect could be convicted. That was because, at the time that the matches were made, both defendants had been acquitted or a decision had been made not to proceed with the offences for which the DNA profiles were taken. Section 64 of the Police and Criminal Evidence Act 1984 specifies that, when a person is not prosecuted or is acquitted of the offence, the sample must be destroyed and the information derived from it cannot be used.

The subsequent decision of the House of Lords overturned the ruling of the Court of Appeal. The House of Lords ruled that, when a DNA sample fell to be destroyed but had not been, although section 64 of PACE prohibited its use in the investigation of any other offence, it did not make evidence obtained as a failure to comply with that prohibition inadmissible, but left it to the discretion of the trial judge.

Although that ruling allows the courts discretion to use the information, it affects only cases in which samples, through chance and inefficiency, have not been destroyed. The Government's view is that such evidence should not be thrown away and that the police should be able to make proper use of valuable and objective evidence provided by fingerprints and DNA profiling.

Those court decisions led the Government to make the proposals that we are debating. I accept that that meant that there was less wide-scale public debate on the issues than there otherwise might have been. However, the court decisions left the status quo as unacceptable. People could be acquitted of serious offences as a result of almost a legal loophole, a series of legal judgments that put the police's procedures in doubt. It would have raised serious questions for the Government to have ignored it, and that would have left the Crown Prosecution Service unable to prosecute in offences of the type that the hon. Member for Surrey Heath and I have cited. We could have been open to serious criticism had we not acted on the situation at the first opportunity. The point about debate has some merit, although we should remember that every piece of legislation ends up being debated in a cold, wet Committee Room on a Thursday so the rhetorical flourish was, perhaps, slightly overdone. We would have been rightly criticised for being delinquent had we not acted in those circumstances.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 4:30 pm, 8th March 2001

I am listening carefully to the Minister, and I am glad that he is taking seriously the matters raised by the hon. Member for Southwark, North and Bermondsey and my hon. Friend the Member for Reigate. He has now come on to the point that the original Court of Appeal decision, which caused the Government to set out on this course, has been reversed in the House of Lords. Perhaps the Government welcomes that. However, if the Government were to rush to corrective legislation every time a criminal were acquitted because some piece of evidence could not be used, we would spend even more time legislating than we now do.

The Court of Appeal came to the conclusion that it did at that stage in that case because the judges believed that the unlawful retention of the samples was fatal. There have been other decisions where it was clear to all that the police had arrested the right person but that person could not be convicted because our law allows a person who may have committed an offence to go free when there have been mistakes by the police or irregularities in the prosecution process. That is an unfortunate consequence of having legal procedures.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

That brings me to the second general consequence of the process that I was going to mention, namely the tremendous power of the scientific techniques associated with DNA, which are transforming our ability to solve a wide variety of cases. It was impressively demonstrated to me shortly after I took office. I went to see the chief constable of Hampshire, who took me through some terrible crimes that had been committed, going back over 15 years. His force was steadily working through them, using the evidence of the time with the modern DNA data, and there have been other recent powerful and convincing examples. Because DNA is such an important part of modern policing technique, it is Government policy to encourage it; we have put a lot of money into it. We therefore felt that for there to be a legal question over the use and abuse of that process was very serious.

The hon. Member for Reigate mentioned another important case in illustrating the ability of the criminal justice system to judge scientific cases. I do not think that this was his point, but the conclusion that I draw from it is that we must strengthen the ability of the criminal justice system—both of juries and of the court itself—to use, understand, interpret and evaluate scientific evidence of this kind, rather than turn our backs on the scientific evidence process as a whole.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I understand the issues around the court case. Does the Minister accept that, logically, it would have been equally possible for the Government—as a result of the court case that said that it was still permissible to use evidence that should not have been held—to conclude that evidence that should not have been held could not have been used? The Government had a choice of ways to resolve that difficult court case decision. They chose one, but could equally well have chosen the other. I have never understood the logic of saying that the DNA of a person who has had DNA taken and been acquitted should continue to be held, when that of people who have not gone through the process is not. What logical justification is there for that power and authority to apply to those people and not to anybody else?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I shall come to the second point. On the first point, the Government's view is that—and the hon. Gentleman is right that we were faced with a choice—the evidence should not be thrown away and the police should be able to make proper use of the valuable and objective evidence provided by fingerprints and DNA profiling.

I acknowledge that a logical case, even a principled case, can be made for opposing clause 81, but I do not think the same of the amendments. I understand that, faced with the choice, the hon. Gentleman would prefer to go the way of the amendments. He would take the explicit risk that people might be found not guilty of the terrible offences that they had committed because we took note of his evaluation of the civil liberties issues. He wants to go one way; we want to go the other. A legitimate argument—and a vote—is to be had, here, on the Floor of the House or in the nation on that matter. The Government are going down that course because we believe that the power of technology is important and that we should not eschew the use of that evidence.

I come now to the point made by the hon. Member for Reigate. There are occasions when individuals give fingerprints or samples voluntarily—for example, for the purposes of elimination when they participate in a DNA intelligence or mass screen. The clause will permit the retention of fingerprints or samples if an individual gives consent in writing; but consent is entirely voluntary. I emphasise that it is for the individual to give consent. For the reasons stated by the hon. Gentleman, we do not want to discourage anyone from participating in a DNA intelligence screen or from giving fingerprints or samples for other elimination purposes. Consent is at the core; one can consent or not. Those who want to may do so. However, once consent has been given, it cannot be withdrawn. I give an absolute assurance that is it no part of the Government's proposal in any respect whatsoever to put pressure on people or to create uniformity in such a way that suggests that the people participating in those screens should consent. Consent is entirely voluntary and all our practices will reinforce that.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Does the Minister accept that the Police Federation and others are worried that far fewer people will be prepared to volunteer? If so, the Minister will have to face the embarrassment of knowing that the next Conservative Government may have to reverse that decision.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I do not accept that. The screens will be conducted under clear guidance that will make it quite clear that consent is at the core.

The Police Federation stance on this issue worries me, unlike some of the other matters that we have discussed, on which the federation and I have good, cordial relations. I shall be blunt about it; the federation is not co-operating with the Government's efforts to include police DNA in the DNA data check. The police themselves may leave DNA samples when they visit scenes of crimes, and it is obviously important to eliminate those from any inquiry.

The Police Federation is saying that the inclusion of police DNA poses a threat to civil liberties, and it has been suggested that the police will not participate. That is the subject of an argument between the Government and the federation. It is not an acceptable position for the federation to adopt, unlike some of the other subjects on which the federation has written to Committee members. It is entirely unacceptable for the police trade union to take such a position on DNA sampling. I do not accept the validity of the federation's position, as its leadership knows. That point should be taken into account by the Committee when considering evidence from the federation.

In the circumstances that I have described, if an individual does not consent to the retention of the fingerprints or samples, they must be destroyed—I can describe to the processes that will properly destroy the samples—and the information derived from those samples cannot be used in the investigation of other offences. I believe that that provides sufficient protection. The scenario summoned up by the hon. Member for Surrey Heath of a mass failure to participate in those processes is unlikely to arise.

On acquittals, it is important to emphasise strongly that fingerprints and samples retained from those acquitted can be used only for the purposes of prevention of crime, and so on—not for any other purposes. Therefore, a person who has never been involved in crime has nothing to fear. I do not believe—this takes me back to where I started—that there will be a removal of liberty. People's freedom and liberty will not in any sense be disadvantaged unless they subsequently commit a crime. There will be objective, factual data that can disprove as well as prove involvement.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I am still waiting for the Minister to explain what logically justifies the proposition that somebody who is acquitted should have information held on them while the rest of society—those who have not been arrested and charged—do not. What is the logical basis to justify that they should be ``caught'' when the rest of us should not?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

The basis is the one that we have discussed. The hon. Gentleman has made it clear that he does not agree with our approach. His position is that to have a fingerprint or DNA sample held is in some sense a penalty to an individual in society—somehow a disadvantage in life, a restriction of liberty or whatever. I do not accept that. Building up such databases is an important tool in fighting crime, which helps the other side of the civil liberties argument. I entirely acknowledge the legitimacy of the debate. The hon. Gentleman's position is not ridiculous, but I do not accept where he is coming from.

Photo of Mrs Jackie Ballard Mrs Jackie Ballard Liberal Democrat, Taunton

As I understand it, either the Minister is saying that someone who has been charged with and acquitted of an offence has a greater propensity to offend than someone who has never been charged or the logic of his argument about the usefulness of building up a database from information that happens to be acquired is that there should be a database from birth, as I suggested earlier. Is the Minister opposed to the idea of DNA testing from birth and a national database? If not, is that part of the Government's not-so-secret agenda?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

Well, no, it is not. The Government do not have a secret or not-so-secret agenda on that matter. For what it is worth—it may be worth the hon. Lady's while to read Lord Sharman's Foresight report on the future of crime—identity, how we measure it and, by the way, how we guard against its theft will be a major issue during the next 20 or 30 years. The identity card debate, like the DNA and fingerprint debates, will move higher up the agenda for politicians and society as a whole. I do not have a preconception about where we will end up, although I have no objection to my children's DNA or mine being on a database. However, the Government do not have a secret agenda. We will have more of a national debate as issues arise, when the debate that we are having now will take place sharply. I give the hon. Member for Southwark, North and Bermondsey an absolute assurance, if that is what he is looking for, that there is no logical step that we are somehow trying to take towards DNA testing at birth.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I understand the Minister saying that he does not regard the holding of DNA as a restriction of liberty, and so on. None the less, it is a holding by the state of personal information that otherwise would not be held. Unusually, the Minister has not answered the question—he is always good at trying to answer questions. What is the logic that says that information should be held on people who have gone through the criminal justice system and come out innocent but not on anybody else? I do not see any logical differentiation.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office 4:45 pm, 8th March 2001

What I am trying to say—I may be failing—is that I am in favour of building up the DNA database. I am not in favour of considering that as a penalty for some act or omission in relation to the criminal justice system. I have tried to describe the voluntary joining of the database by consent and the acquittal process, about which the hon. Gentleman asked. It is not a penalty or a loss of liberty, as the hon. Gentleman describes it. The relationship between the individual and the state is not a zero sum game. The hon. Gentleman implies that if I give information to the state, I lose, and vice-versa. The passage of information between the two is not a zero-sum relationship. The hon. Gentleman and I may disagree. I want to build up the database, because it is an important device in dealing with crime.

I am sorry that it is taking so long for me to get to the amendments, but I do not think that I will want to say anything on clause stand part.

There is tremendous logic in opposing the clause altogether. One could argue the toss either way, judgments must be made and the debate is perfectly fair. However, with respect, I do not consider that the same logic applies to the amendment. If amendment No. 276 were to become part of the Bill, fingerprints or samples taken from suspects in the course of an investigation could be retained on acquittal or when a decision is made not to prosecute only if the individual gives their consent in writing.

That would negate a large part of the Bill. If a suspect had been acquitted of one crime but knew that he or she had committed another, it is not credible that he or she would consent to their fingerprints or DNA profile being retained. However, it is precisely in such circumstances that we most need to make use of the valuable objective evidence afforded by fingerprints and DNA.

I shall return to the point raised by the hon. Member for Surrey Heath at the beginning of the discussion. In the case of R v. B, the suspect was arrested on a charge for which he had had a DNA profile taken. He gave the wrong name. Had he given his correct name, it would have been apparent to the police that he already had a conviction, for which a DNA sample was not taken at the time of the conviction but which the police could have taken when he was subsequently arrested.

If the police had taken a sample for that offence, it could have been retained on the database regardless of his subsequent acquittal for the later offence. The R v. B case would never have come before the Court of Appeal and the compelling DNA evidence linking B to the appalling rape of the elderly lady referred to by the hon. Member for Surrey Heath could have been used. I do not think that B would have given his consent to his DNA being kept on the database in writing or otherwise. The amendment would allow the Bs of this world—I am not sure that I should put it like that as it might appear to relate to our earlier talk of Bs, Cs and As—to continue in their criminal pursuits and deny the police the opportunity to make full use of valuable evidence.

I acknowledge that, as the hon. Member for Surrey Heath explained, that is no part of the intention behind the amendment. The hon. Gentleman is not trying to weaken the powers in the provisions, but I would ask him to consider whether his amendment would have exactly the effect that I have described, and whether he should withdraw it. Alternatively, if the hon. Gentleman takes the view that our whole approach is wrong, he should vote against the clause rather than express his disagreement through the amendment.

Amendments Nos. 277 and 278 would restrict the definition of crime to any conduct that would constitute a criminal offence in the United Kingdom. The clause is drafted more broadly, to include crimes that constitute a criminal offence under the law of a part of the UK or of a country of territory outside the UK.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Hall Green

I know that the Minister has given way several times, but I seek clarification on whether a sample could be used to support the investigation of an alleged crime in another country when that alleged offence is not a crime in this country. If that is the case, what safeguards will be built into the measure to ensure that such arrangements cannot be used to support activities in countries of which we would thoroughly disapprove?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I am grateful to my hon. Friend for raising that because it is an important point that relates to the amendments. I shall return to it.

Part of the purpose of the Government amendments to PACE made in this part of the Bill is to recognise the increasingly international nature of much criminal activity. That is common ground on both sides of the Committee. We are seeking to do that in every sphere. We want to give the police clear statutory powers to co-operate fully with police forces in other countries or—to take a current and relevant case—with international war crimes prosecutors. In such cases, crimes that have been committed outside the UK might not constitute an offence in English criminal law. That is why we want to make the change, which the amendment would prevent.

If a request for information comes from a foreign police force and is supported by Interpol and NCIS, we do not think that the conduct being investigated should have to correspond exactly to an offence under English law. Achieving exact correspondence, and the arguments that would take place in the process, would inhibit the authorities' ability to build the international relations about which we have spoken. I acknowledge that Interpol and NCIS—the gateway to the process—will need to make the judgments on crimes that do not exactly correspond to UK law but would be considered crimes nevertheless. That is the reason for assessing the information that is received from foreign police forces. That assurance might help my hon. Friend the Member for Birmingham, Hall Green (Mr. McCabe).

That is an important issue, but to go the other way and support the amendment would remove a significant power that the police need to deal with some international crimes—I cite the international war crimes issues that are in the news. The precise types of offences for which people are being tried and for which many modern techniques are being used might not exactly correspond to offences in UK law, and we do not want the police's ability to use those techniques to be impaired by debilitating legal arguments.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

At the moment, the gateway of Interpol and NCIS is not specified in the Bill. If the Minister were prepared to re-examine whether the safeguards should be included in the Bill, that would be a different matter. The hon. Member for Hall Green might not have been in Committee to hear this earlier, but I share the concern that he raised in his helpful intervention. If a regime behaves as appallingly as President Mugabe's, what in the Bill would stop such a leader using samples and fingerprints taken here against his citizens for offences that would clearly not be regarded as crimes in the UK?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I accept the spirit of the comments of the hon. Gentleman and of my hon. Friend the Member for Hall Green. I believe that safeguards exist, but I am happy to give the commitment that I will examine carefully between now and Report whether any clarification of those safeguards would be helpful.

I acknowledge the force of the points made by hon. Members of all parties and understand that everyone needs to be assured that the powers in the Bill could not be used by despotic or tyrannical regimes. I assure the hon. Gentleman—I have already tried to do so—that that is the Bill's intention. The intention is to ensure that nothing stands in the way of building the international co-operation that we increasingly need.

I apologise if I have spoken for too long, but I have attempted to cover the substance of the issue, because the clause is one of the most important in the Bill. I hope that I have not trespassed on your patience, Mr. Gale, and I hope that the hon. Gentleman will withdraw the amendment and that hon. Members will vote for the clause to stand part of the Bill.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

This has been a good debate and I do not intend to repeat at length the position that my hon. Friend the Member for Taunton and I have made clear. We see the amendments as a way of ameliorating the clause and we shall support them. We are unhappy with the principle of the proposal for the pragmatic reasons that have been raised. We are worried about the risk to people who give their consent but might not want to do so in the future, and about the fact that we are not yet, and probably never will be, able to ensure that the DNA system works accurately. We can never ensure that the management of scientific data and materials is perfect, so that things are always as they are described. Therefore, there are pragmatic reasons why we support the amendments. There is also a democratic reason, which the hon. Member for Reigate explained very well.

There is a real issue, but we have not had the real debate that we have had on other big issues in other forums. It was not in a manifesto, it was not debated at the previous election, it was not in the Queen's Speech, it has not been debated in the round in either House of Parliament and it had not been debated before it came to Committee. The Minister conceded that the measure had come off the back of a court case. I do not criticise him for that, because we are all aware that that case left the law in an uncertain state, and it is perfectly proper for the Government to say that they need to act. However, on this big issue, just to pluck one option and place it in a part of the Bill that has many other measures is entirely inappropriate.

Like my hon. Friend the Member for Taunton and many other others, I understand where the police and the Government are coming from and the importance of trying to ensure that we secure convictions properly. However, we are still not persuaded on the issue on which we have had the most exchanges. What logic justifies the holding of information about people just because they have come into contact with the law on one occasion, but does not justify holding it in other cases? My hon. Friend said that it was an opportunistic additional method of collection. That is right. It is no more logical than taking the first name on each page in the telephone book or the electoral register.

There is a slightly more coherent process. I understand that those people happen to have gone through the police system and are linked with law and order and the collection of information, but that is chance and accident. I do not have the figure in my head— the Minister may not either—but a significant number of people are arrested, charged and acquitted. I am happy to say that the criminal justice system acquits people quite often. Many are innocent; some are not. We will never know the answers to those questions.

A debate is taking place on double jeopardy, which enters the realm of what the balance should be between citizen and state. I accept the Minister's perfectly valid alternative description, but the debate is about the powers of the state, what information it should hold and what consent the citizen gives to that being held, whether or not the state believes that it is in the interests of humanity. My hon. Friends and I therefore support the amendments, but whether or not they are defeated, we will oppose the clause. I give notice that, because the next clause is similar—although it relates to Northern Ireland—we shall also seek its deletion.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

My hon. Friend the Member for North-East Hertfordshire and I have had a brief time to consider what the Minister said on our amendment No. 276. I give notice that this is a very important issue to which we shall want to return on Report, but we want to give further thought to the Minister's response, so I will not press the amendment at this stage.

We want to press amendments Nos. 277 and 278 to a vote because there is nothing in the Bill that provides a sufficient safeguard. We agree with the important point made by the hon. Member for Hall Green. I do not want to say anything more at this stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 277, in page 68, line 16, leave out `(whether'.—[Mr. Hawkins.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

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Question accordingly negatived.

Amendment proposed: No. 278, in page 68, line 17, leave out

`or of a country of territory outside the United Kingdom)'—[Mr. Hawkins.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

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Question accordingly negatived.

Photo of Roger Gale Roger Gale Conservative, North Thanet

As I indicated earlier, I intend to suspend the Committee. It might be convenient for hon. Members if I remind them that, later in the proceedings, we will come to a significant number of potential Divisions. At that point, I shall ask for the doors to be locked, and I shall not have the doors unlocked until the voting has been completed. I am telling hon. Members now that, at the start of the sequence of Divisions at 7 o'clock, they will have one chance to get into the Committee Room. If you're out, you're out.

The Committee is suspended until 5.20 pm.

Sitting suspended.

On resuming—

Photo of Charles Clarke Charles Clarke Minister of State, Home Office 5:20 pm, 8th March 2001

I beg to move amendment No. 177, in page 69, line 14, at end insert—

`( ) In subsection (7)(a) (saving for power conferred by Immigration Act 1971), after ``1971'' there shall be inserted ``or section 20 of the Immigration and Asylum Act 1999 (disclosure of police information to the Secretary of State for use for immigration purposes);''.'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to take Government amendment No. 179.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

These are technical amendments.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

Only because I was told that they were not, could the Minister explain what they do?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

Yes. Amendment No. 177 makes it clear that the amendments to the Police and Criminal Evidence Act 1984 in clause 81 do not affect the operation of section 20 of the Immigration and Asylum Act 1999, which allows police to disclose fingerprint data to the Home Secretary for immigration purposes. Equally, amendment No. 179 makes it clear that the amendments to the Police and Criminal Evidence (Northern Ireland) Order 1989 in clause 82 do not affect section 20 of the 1999 Act. The amendments preserve the existing gateway in the 1999 Act for disclosure of police information to the Home Secretary for use for immigration purposes. These are technical amendments, but perhaps the hon. Gentleman disagrees.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I hear what the Minister says. We had a debate about this sort of issue during the passage of what became the Immigration and Asylum Act 1999. I am not in a position now to say that I object to the amendments, but I will consider them in light of the Minister's explanation. If we need to return to the issue later, we can.

Amendment agreed to.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I beg to move amendment No. 178, in page 69, line 15, leave out subsection (5) and insert—

`( ) The fingerprints, samples and information the retention and use of which, in accordance with the amended provisions of section 64 of the 1984 Act, is authorised by this section include—

(a) fingerprints and samples the destruction of which should have taken place before the commencement of this section, but did not; and

(b) information deriving from any such samples or from samples the destruction of which did take place, in accordance with that section, before the commencement of this section.'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to take Government amendment No. 180.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

These amendments will allow fingerprints and samples that have already been taken on suspicion of involvement in a crime, and that would have been destroyed under the existing provisions in section 64 of the Police and Criminal Evidence Act 1984 and article 64 of the Police and Criminal Evidence (Northern Ireland) Order 1989, to be retained and the information from them used for the purposes defined in the Bill. These small amendments will tighten up the situation and give effect to the proposal that we have already debated.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I am clear in my mind about the issue that arises from the amendments. If they allow the use of samples that had been illegally held before this Bill came into force to be held legally afterwards, could the Minister respond to the proposition that that would be in breach of various and fairly obvious provisions of the Human Rights Act 1998 and the convention behind it, because the process would have been rendered fair where it would have been unfair at a previous time? We therefore get into arguments about a potential breach of articles 6 and 13 of the European convention. Under the 1998 Act, both are part of domestic law. My understanding is that the original subsection (5) of clauses 81 and 82 is regarded by those who have considered it as within the Act and compatible with the convention, but the amendments are much less so. They would argue that the amendments are not consistent with the convention.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

On article 6, I have already said that the type of evidence that we are discussing is among the most compelling and objective evidence in the fight against crime. That is the central part of our discussion. On one hand, the evidence may conclusively establish involvement in a serious crime; on the other, which is at least as important, it may conclusively exonerate someone who might otherwise have been convicted on the basis of circumstantial or confessional evidence. It is in the interests of justice and the defendant for that evidence to be available to the court. If we take the examples that we discussed earlier, no sensible person would say that an injustice had been done if conclusive evidence of involvement in rape and murder led to his conviction.

Neither the convention nor English law require that evidence that was obtained or held unlawfully is necessarily inadmissible in a trial. The courts will of course retain their discretion under section 78 of PACE to exclude DNA evidence that should have been destroyed under existing law if they believe that it would have a detrimental effect on fairness.

The hon. Gentleman raised article 13. I have already said that the Government do not believe that the substantive provisions in the clause or the amendments in terms of the transitional arrangements give rise to violation of the convention rights. We do not believe, returning to our earlier discussion about rights and liberties, that the current rights given under PACE to destruction of samples are protected by the convention. It follows from that that I do not believe that a separate issue arises under article 13. If an issue of fairness arises as to the admissibility of evidence during a criminal trial, section 78 of PACE provides the court with the means to exclude that evidence. I hope that that addresses the Human Rights Act issues raised by the hon. Gentleman and that the Committee will agree to the amendment.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I understand what the Minister says. We will take advice on the matter, but I do not seek to divide the Committee.

Amendment agreed to.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 8, Noes 2.

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Question accordingly agreed to.

Clause 81, as amended, ordered to stand part of the Bill.