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

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

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Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 3:15 pm, 8th March 2001

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.