Clause 1

Protection of Freedoms Bill – in a Public Bill Committee at 10:30 am on 29th March 2011.

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Photo of Clive Efford Clive Efford Labour, Eltham 10:30 am, 29th March 2011

I have been here 14 years, so it is reassuring to know that I have made my mark. I beg to move amendment 14, in clause 1, page 1, line 8, leave out ‘DNA profiles’ and insert ‘removal of profile from National DNA Database’.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

My apologies. With this it will be convenient to discuss the following: amendment 15, in clause 1, page 2, line 27, at end add—

‘(6) Samples taken from which a DNA profile is obtained of an individual who is subsequently convicted of a crime will be held pending any further proceedings.’.

Amendment 16, in clause 3, page 3, line 14, leave out ‘or (5)’.

Amendment 17, in clause 3, page 3, line 17, before ‘charged’, insert ‘arrested for, or’.

Amendment 18, in clause 3, page 3, leave out lines 22 to 28.

Amendment 37, in clause 3, page 3, line 28, at end insert—

‘(d) prescribed circumstances will be set out in draft guidance by the Secretary of State which must be laid before both Houses of Parliament;

(e) the guidance must be approved by resolution of both Houses of Parliament;

(f) the prescribed circumstances must include rape and serious sexual offences.’.

Amendment 38, in clause 3, page 4, line 8, at end insert ‘, where matters relating to national security are involved’.

Amendment 27, in clause 8, page 7, line 34, at end add—

‘(3) Subsections (1) and (2) cannot come into force until—

(a) an inquiry has been conducted by Her Majesty’s Inspectorate of Constabulary into the evidential basis for the benefits of taking DNA from persons given a penalty notice,

(b) the recommendations of that inquiry have been reported to the Secretary of State,

(c) the report of the inquiry has been laid before, and approved by affirmative resolution of, both Houses of Parliament.’.

New clause 1—Destruction of data relating to a person subject to a control order—

‘(1) This section applies to material falling within subsection (2) relating to a person who—

(a) has no previous convictions or only one exempt conviction or excluded offence, and

(b) is subject to a control order.

(2) Material falls within this subsection if it is—

(a) fingerprints taken from the person, or

(b) a DNA profile derived from a DNA sample taken from the person.

(3) The material must be destroyed before the end of the period of two years beginning with the date on which the person ceases to be subject to a control order.

(4) This section ceases to have effect in relation to the material if the person is convicted—

(a) in England and Wales or Northern Ireland of a recordable offence, or

(b) in Scotland of an offence which is punishable by imprisonment, before the material is required to be destroyed by virtue of this section.

(5) For the purposes of subsection (1)—

(a) a person has no previous convictions if the person has not previously been convicted—

(i) in England and Wales or Northern Ireland of a recordable offence, or

(ii) in Scotland of an offence which is punishable by imprisonment, and

(b) if the person has been previously convicted of a recordable offence in England and Wales or Northern Ireland, the conviction is exempt if it is in respect of a recordable offence other than a qualifying offence, committed when the person is aged under 18.

(6) For the purposes of that subsection—

(a) a person is to be treated as having been convicted of an offence if—

(i) he has been given a caution in England and Wales or Northern Ireland in respect of the offence which, at the time of the caution, he has admitted, or

(ii) he has been warned or reprimanded under section 65 of the Crime and Disorder Act 1998 for the offence, and

(b) if a person is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction.

(7) In this section—

(a) “recordable offence” has, in relation to a conviction in Northern Ireland, the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989, and

(b) “qualifying offence” has, in relation to a conviction in respect of a recordable offence committed in Northern Ireland, the meaning given by Article 53A of that Order.’.

Photo of Clive Efford Clive Efford Labour, Eltham

Welcome, Mr Streeter. I have approached this morning with an increasing fear because I have been suffering from a bad cold and cough for about four weeks now. I have been unable to shake it off, so I hope that I will make it through all the clauses without collapsing in a coughing fit.

It is a pleasure to be here this morning. I had a look at the profile of Conservative Members because during the evidence stage I noticed that a number of lawyers were present. I have discovered that every Conservative Member of the Committee is a lawyer of some sort. [Interruption.] Well, I must go back to my office and check my research. I would not want to offend anyone in that way. I will go back and make sure that those responsible are suitably admonished. I am assuming that everybody else is a lawyer. That led me to question whether there was a collective noun for a group of lawyers—a fee, a charge or an expense of lawyers. Perhaps the hon. Member for Northampton North can help us with that.

Let us get on with debating the amendments in the group before us. I started considering the issue of DNA when the Bill was first proposed. I approached with an open mind the question whether DNA data should be kept for three or six years because I accepted that a degree of balance was required in terms of what might be necessary in the future. As I considered the issue, I discovered that there are many misconceptions about what data are held, where they are held, who holds them, and what the terms “database” and “samples” mean. There is a great deal of confusion about that, even among some of the expert witnesses from whom we heard. The purpose of amendment 14, which would change the title of the clause, is to highlight that even in relation to the Crime and Security Act 2010, which was debated only 18 months ago, there is a misconception in some people’s minds about what exactly we are dealing with. The Bill states that we should destroy the DNA profiles, which gives the impression that they are something of substance or something physical, rather than an electronic piece of data.

People also have misconceptions about what the police have access to. It is the terminology that we use that opens people up to the misconception that the police have access to information that can show whether someone is male or female, whom they may be related to or even possibly their country of origin. All those mistakes appear to come from the misconception that the database holds intimate information that can be accessed and used for purposes other than that for which it was obtained in the first place. Amendment 14 highlights that confusion.

That confusion has bedevilled the debate, even regarding the 2010 Act. The use of the word “destruction” in the clause title suggests something physical rather than electronic data, as I have said. We need to be clear about what the clause means when it refers to the destruction of material—whether it relates to the information on the database or to physical samples. It is clear from the evidence we have heard that some people are very confused about that. They confuse profiles with samples and even detailed structures of DNA, which is after all the blueprint of everyone in this room.

People are right to be precious about such information because it is very intimate, and we have a duty to protect people from any intrusion into information that is extremely personal. But we also have a duty to make sure when we discuss these matters that we are in full possession of the facts and that we understand exactly what we are dealing with before we remove data from  the database in a way that could seriously restrict the ability of the police to solve crime and protect the public.

As part of my education on this subject, I went to visit the Forensic Science Service for it to take me through the process, so that I could understand exactly what we are talking about. The science of extracting DNA data from samples was new to me. I shall briefly describe the process.

A sample is taken, let us say from a scrape from the inside of someone’s cheek, using a swab. The swab is then submitted to the forensic science laboratory for DNA analysis. First, several reagents are ready to remove the DNA, and it is processed to extract DNA from the additional cellular material. It is then processed in batches. The issue of batches is very important, and we will come to that under several clauses as we debate the Bill. The batches are processed to generate a DNA profile from each swab submitted. The DNA profile is a string of numbers, according to the size of the different strands, and it is the string of numbers that is loaded on to the DNA database.

In one part of the process a machine effectively measures the size of each strand of DNA—like taking a photograph of the different strands passing through the machine at different speeds—to generate the string of numbers that make up the DNA profile. Those numbers are loaded on to the national DNA database, which runs a check over new profiles, the Police and Criminal Evidence Act 1984 and crime scene material overnight to see whether there are any new matches. That is important, because when we discuss the Bill—many people made this mistake on Second Reading, even the Secretary of State at times—people rightly become emotional about the retention of personal DNA material, the actual physical samples. However, with the national DNA database we are talking about a series of numbers. Those numbers can be removed from the database. The problem with the material held by the Forensic Science Service is that it is difficult to extract. It cannot be separated from any DNA profiles that we want to retain—to lose one profile would be to lose them all.

I asked the witnesses what bothered them most about the retention of DNA. Was it the fact that an organisation held physical properties from DNA samples, or was it that the DNA information was on a national computer and was searchable? Their answers were unequivocal: it was both. It was not just the fact that the DNA profile was on a searchable database, it was the fact that somebody held that personal piece of information elsewhere. That leads to a problem.

The Forensic Science Service in Lambeth road has a small machine that processes the DNA in batches of about 20. The Forensic Science Service has a much bigger machine that does them in batches of about 90, of which about 80 are the samples actually being extracted, the others being controls. Once those machines have produced the information, it is stuck there. We can get rid of the whole batch, but it is not possible to get rid of one part of the batch. So we need to be clear what we are doing when we talk about the destruction of DNA profiles. The impression is given that we are destroying everything, but we are not. Under the clause, the DNA profile is removed from the DNA database.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

Is the hon. Gentleman advocating that the batch system should be changed to an individual one?

Photo of Clive Efford Clive Efford Labour, Eltham

That is a very good question, and I am delighted that the hon. Gentleman is listening to me. That is exactly where I am about to go.

I asked the Forensic Science Service the cost of carrying out the process individually. For the machine that does 20, the cost would increase approximately fivefold. It was unable to provide an exact figure, and I do not want to put it on the spot. For the process that takes place in Birmingham, the cost would increase many times, and it is not practical. The machines are not constructed to do just one DNA profile regularly, although that can be done when the police are dealing with a serious crime and need to process the data quickly.

I was also shocked that some of the witnesses were not fully conversant with the details. I should have thought that someone advocating this major change would have bothered to ask the Forensic Science Service or another forensic body about the process. When Isabella Sankey of Liberty was asked about it, she spoke of people who, although they

“might not know their parentage or ethnicity, the police have access to material that can tell them that information.”

That is completely and utterly wrong. It could not be more wrong. If the police had access to the numbers, that would not tell them anything. The Minister is shaking his head, and perhaps he will ask me to explain if he does not understand something.

The DNA database has a string of numbers, and I understand that the police do not necessarily have access to those numbers—all they know is that there is a match—and if they did, the numbers would not provide the information. I spoke to a scientist at the Forensic Science Service who had been there for many years, and we looked at a more detailed graph than would be on the national database. He said that he could not tell much from the graph, which just showed spikes instead of a string of numbers such as a set of lottery numbers. To suggest that the police have access to such information is completely wrong, and to have this debate on the basis of that is bound to influence how people will react to the discussion. Does the Minister want to intervene?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

The DNA profiles contain sensitive information, and include an x or y chromosome indicating sex, and close relatives. There have been cases of familial links being made. The hon. Gentleman is not right in saying that nothing sensitive is involved.

Photo of Clive Efford Clive Efford Labour, Eltham

I am grateful to the Minister, but this is where the confusion arises. The police do not have direct access to that information. They would have to return to the material that is held by the Forensic Science Service to obtain such data. We can check that out and see whether I am right, but I have asked that specific question, and I believe that I am right. That is not what is on the national DNA database, and such information cannot be extracted from it. Having made a link, one can go back and check the further details held by the Forensic Science Service.

Dr Metcalfe of Justice also said:

“I am not technically equipped to second-guess why the Forensic Science Service organises itself in the way that it does.”––[Official Report, Protection of Freedoms Public Bill Committee, 22 March 2011; c. 60, Q 177 and 178.]

I have set out why that is—for practical reasons of cost and time—but it is extremely disappointing that people who are lobbying forcefully for changes have done so without making themselves fully aware of the process and of the facts about the data that we are dealing with. That is why I moved the amendment—to highlight the problem.

Few have taken the trouble to consult scientists. As I said, we have a plethora of lawyers in the Committee, and this place has the habit of not even entering a room without consulting a lawyer, but heaven forfend that we should check with scientists about scientific process.

I should be grateful if the Minister would confirm that the information to which the title of the clause refers is electronic data. Can he confirm that the police will only be able to check that a person is on it? I note his point, but I suspect that that is further investigation, other than the DNA check, which is run overnight. Can he confirm that they do not routinely have access to any details of a person’s DNA profile? Of course, in further investigation they might obtain more information from forensic science services. Can he confirm that the information that we are talking about on the national DNA database is a string of numbers?

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington 10:45 am, 29th March 2011

As a point of possible clarification, I received a useful letter from the Information Commissioner yesterday:

“My expectation is that deletion will mean deletion of any retained individual DNA sample”, going on to mention

“the numerical profiles generated from these and held on the National DNA Database.”

Photo of Clive Efford Clive Efford Labour, Eltham

Separate clauses deal with samples, but again, we are slipping into confusing samples with the electronic data. The hon. Gentleman is quite right, we will be destroying samples, but discussion of that will come up under other clauses. The issue that we are talking about is the removal of the ability to search the national DNA database.

It is possible to remove single strands of information about one individual from that database, but it is not possible to remove the single piece of information that has produced the string of numbers from the batches held by forensic science services. Going back further, it is possible to destroy the samples from which the DNA strand was extracted. The process is complicated, but we need to understand it.

When the Minister responds, can he also confirm that it is not possible to destroy the information held in the batches at forensic science service providers, such as the Forensic Science Service, and that the personal details they extract will remain on their systems? I accept that it will be possible to remove the personal details, so that records cannot be linked to what is on the national database. However, the point of principle, according to those who gave evidence to us, is that, even  so, that personal information remains in the possession of an organisation, which they believe should not be the case. That highlights the complexity of the issue, and our suggested step of removing that information from the national database does not necessarily satisfy all the complaints that people are making about the retention of DNA information.

Can the Minister comment on whether the Government might have any intention of requesting that DNA profiles are processed individually, so that they are not stuck on those batches at forensic science services in future? Have the Government looked into that? Have the Government estimated what the costs might be, and are they included in the £2.9 million on-costs resulting from the Bill?

Does the Minister agree that the use of the word “destroyed” in the clause gives the wrong impression of the process involved in meeting the Bill’s requirements and does not accurately account for the fact that DNA data will be retained by forensic science services laboratories? I do not intend to speak to amendment 15, which relates better to clause 2. I can raise the matters that relate to that amendment in a stand part debate, because they refer to samples rather than to DNA profiles.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

Order. It may help the hon. Gentleman to know that amendment 15 is in this group of amendments, so it may be as well to debate it now.

Photo of Clive Efford Clive Efford Labour, Eltham

I will be guided by you, Mr Streeter, but the questions that are raised by amendment 15 are not relevant to clause 1. I can make those points in a stand part debate rather than in this debate on amendment 14. If the Minister wishes, I shall discuss amendment 15, but I shall deal with amendments 16 to 18 for the present.

Under clause 3, people who are arrested for a qualifying offence will have their DNA retained for a period of three years, as set out in subsection (6); we have tabled other amendments to suggest a period of six years. The Select Committee on Home Affairs investigated what should be the threshold for taking and retaining DNA and fingerprint data in its report on the national DNA database in March 2010. It concluded that the threshold should be arrest, and that arrest should be a very high threshold for qualification. It was concerned about tiers of innocence—that people who were convicted of a minor crime were treated differently from those convicted of a serious crime, and that people who were arrested, but not convicted, for a violent or sexual assault might have their DNA retained. There were differences in the thresholds for people having their biometric details, fingerprints and so on retained. The Committee felt that such a situation was not acceptable. It felt that someone’s being arrested and taken to a police station should be the threshold for retaining DNA.

My right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) intervened on the Secretary of State on Second Reading, asking her to confirm that there were cases in which innocent people might have their data retained. The Secretary of State indicated that it would be possible for chief officers to make such applications, but the circumstances in which that would apply were not made clear. We are concerned that innocent people may be subject to some sort of public hearing in relation to the retention of their DNA.

In the context of the Secretary of State’s response to my right hon. Friend, to whom would the chief officer apply? Do the Government intend to prescribe every circumstance in which the chief officer should do so, outside issues relating to national security? How far will that go? If physical samples are to be included under the measure, will the Minister clarify which ones? There is no reference to a case where someone is convicted but continues to protest their innocence. What happens to physical samples in those cases? There is a likelihood that in an appeal on such cases, new evidence may come forward, which would mean that samples need to be re-examined. Will the Minister say what consideration has been given to the retention of samples in cases where further proceedings may be necessary? I would be grateful for clarification on that point.

On amendments 37 and 38, is it the intention to allow the commissioner for the retention and use of biometric material to deal with matters that are not related to national security? Clause 20 deals with the position of the commissioner. It clearly states that he has a role in relation to national security. I refer to the earlier reply from the Secretary of State. Again, it would be helpful if we could have some clarification on what she was referring to when she said that it will be open to the chief officer to apply for the material of innocent people to be retained. In those circumstances, will the chief officer apply to the commissioner or the magistrate or the DNA strategy board to ask to retain the DNA?

Which crimes will the Secretary of State prescribe where people are arrested but not charged or cautioned? If it is her intention to prescribe outside of national security, we would want to see the Secretary of State prescribe cases such as serious sexual assaults and attempted rapes, where there is often no conviction. The nature of those crimes means that they often do not go to court, because the victims often feel intimidated and disinclined to pursue the case. That prescription would ensure that those who have been involved in those crimes are recorded and their DNA retained for future reference. There are a number of cases where that has led to people being convicted, which we may return to in the debates on later clauses.

Amendment 38 is a probing amendment—as most of them are—on the role of the biometric commissioner. Will the commissioner have a responsibility outside of national security, or are they just restricted to national security? The Committee must forgive me if I have missed it in the Bill, but I am not clear what the role of the commissioner for the retention and use of biometric material is in regard to crimes other than those related to national security. Again, the amendment comes from the response by the Secretary of State, in which she indicated that chief officers would be able to apply to someone to retain the data of someone who has not been convicted or charged with a crime. Will the Minister clarify the role of the commissioner on that?

Amendment 27 would amend clause 8, which deals with penalty notices. We know that penalty notices can be issued for trivial matters. There are two types of penalty notice: those that are issued on the spot like a summary fine, and those for which there is arrest. Bearing in mind that the Home Affairs Committee recommended in its report that arrest should be the threshold for the taking of biometric details, the amendment is intended to obtain clarification from the Government  on the position of those who have been issued with penalty notices. Given that penalty notices can be issued to children as young as 10, we would not want someone who has committed two minor offences and received two penalty notices at a very early age to end up on the DNA database. That is an important point, which was made by the hon. Member for Carshalton and Wallington on Second Reading. I believe I am right that, after two trivial offences, the information will be retained. I shall be grateful for clarification from the Minister.

Photo of Gareth Johnson Gareth Johnson Conservative, Dartford 11:00 am, 29th March 2011

Will the hon. Gentleman concede that it is not necessarily the case that fixed penalty notices are given to minors for trivial matters? As also applies when people commit shoplifting and those sorts of offences, it is still open to the police to offer reprimands and final warnings before even getting on to fixed penalty notices. That is a third tier of the process that has to be gone through before a minor is given a fixed penalty notice.

Photo of Clive Efford Clive Efford Labour, Eltham

I am sure the hon. Gentleman is right, but the purpose of the amendment is to find out when the Government intend penalty notices to be used. Many clauses in the Bill refer to abuses of process and of power. People might consider it an abuse of process that someone who is innocent, is arrested in a case of mistaken identity or has a sample of DNA taken illegally is subject to a speculative search. The amendments are to enable us to find out where the Government are, because we would not want—I am sure that the Minister will respond to this—penalty notices to be abused to obtain someone’s DNA. These probing amendments were tabled to ascertain from the Government whether the use of penalty notices might result in people, particularly young people, being on the DNA database for trivial matters.

New clause 1 is probing and relates to people who are given control orders. Given that there have been recent and controversial changes to the control orders regime, I would like the Minister to put on record the Government’s intentions about the retention of the DNA and fingerprints of people who are or have been under control orders. Under the regime brought in by the 2010 Act, if someone is put on a control order and, by definition, has not been convicted of a crime, the DNA will initially be retained for six years. Once the control order is lifted, it will be retained for two years, or it will be held until the end of the control order. The period of retention can also be extended using the national security provisions.

Under the Bill, I am not clear what will happen and I would be grateful for the Minister’s clarification. If a person held under a control order is not convicted of any crime, will their details still be retained? The national security provisions suggest that the details can be held for two years—is that correct?—and that that can then be renewed indefinitely at the request of a chief officer to the commissioner for the retention and use of biometric material. Will the Minister clarify that?

Can the person on the control order have their DNA held for a period without the control order having to be renewed? For what length of time will the material be  retained? What determination will the chief officer have to make to extend the retention period? Will the Secretary of State issue guidance on that, or will it be subject to guidance from the biometric commissioner? How will the introduction of terrorism prevention and investigation measures affect the way people’s DNA and fingerprints are treated? Will the Minister provide clarity on that area of policy? Again, this is a probing amendment to clarify the Government’s position on the retention of such information belonging to people subject to control orders.

With that, I have covered all the amendments. I look forward to the Minister’s response.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

Before I call the Minister, I want to clarify a point on amendment 15, which is being debated as part of this group. There will be a stand part debate on clause 2 once the Committee has made its decision on clause 1. If hon. Members wish to make comments during the clause 2 stand part debate that happen to touch on earlier amendments, it is acceptable as long as the comments are directly relevant to clause 2 and do not unnecessarily repeat earlier debates. I hope that is helpful.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

Thank you, Mr Streeter. I am sure we all feel suitably guided by your comments and will respond accordingly.

At the outset, I wish the hon. Member for Eltham good health. I am sure none of us would wish him to expire. [Interruption.] That has prompted him to have a slight coughing fit, so I hope his condition is not deteriorating further, but I am sure we all wish him well in his deliberations on the Bill and in his consideration of various points as we progress through these clauses on the retention of DNA.

I welcome the vast array of legal advice on this Committee, which the hon. Gentleman has highlighted, and I am also grateful for the non-legal advice that is very much resident on these Benches to provide other support, guidance and input on our consideration of the Bill.

At the outset it is worth stating that we agree that the use of DNA can be an important evidential tool in prosecuting crimes and bringing offenders to justice, but, as I think we will debate this morning and throughout this Committee stage, the use of technology must strike the right balance between the promotion of the wider public interest, public safety and the protection of important private life interests. That is the nub of today’s debate.

On the amendments, in many ways the hon. Gentleman is right to seek to set out the basis for the way in which DNA samples are processed and to give some further background to that. I welcome the fact that he has taken sufficient interest to prepare and inform himself by visiting laboratories and inquiring in that way. On his specific point about derived information, DNA does contain some of the sensitive information that I highlighted in my intervention, such as the familial links that can be made. That is why the Information Commissioner and others have rightly identified that it is sensitive, and why it is pertinent for a proportionate regime to be adopted on the retention of such information.

The hon. Gentleman talked about DNA samples and the processing that they go through to generate a computer profile. He is right to say that DNA samples are processed by the forensic suppliers in batches and that they are  destroyed in batches. To do otherwise would greatly increase the cost. Generally speaking, each batch contains 96 samples and is normally composed of 82 live and 14 control samples as part of the quality process. Until that quality process is complete, the 82 live profiles will not have been satisfactorily derived. It would be inappropriate to destroy the samples until that process was complete. Once processed, the profiles can be separated and destroyed individually. The remaining information is held anonymously by the provider, as provided for by clause 13(2). On the individual samples, we will debate that issue when we get to the relevant clauses, which the hon. Gentleman has rightly identified.

On whether we would consider taking or processing the individual samples, the hon. Gentleman perhaps misses the point, because the samples that are taken are processed to derive a computer profile, which is then stored. We are then separately dealing with those individual samples and their destruction. In essence, he is simply alluding to the processing. In its evidence last week, Genewatch UK indicated that it was not an issue of significant concern. The retention of anonymous information, which neither the Government nor the Information Commissioner consider as a significant intrusion, is perhaps the only residual information that may be left. We are seeking to ensure that any such data would be anonymous to avoid intrusion on such significant issues.

Amendment 15 would require DNA samples to be retained where an individual was convicted of an offence, pending any further proceedings and, presumably, the outcome of any appeal. That approach contrasts with the position in clause 14, which requires that all samples taken under the Police and Criminal Evidence Act are destroyed within six months. That shows the interrelationship between clauses 1 and 14. Both this Government and the last have been advised consistently by the National DNA Database Strategy Board that, once a profile has been derived satisfactorily by the forensic science provider, including the carrying out of the appropriate quality checks, there is no need to retain the biological sample. I understood that to be a point of agreement between us about those samples and the provisions in clause 14.

Photo of John Robertson John Robertson Labour, Glasgow North West

I hope that the Minister will excuse my ignorance if this point was dealt with earlier. In a cold case, which has been shelved for a while, would any DNA evidence be destroyed after six months, or would it be kept until modern technology found an answer to the problem?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

The hon. Gentleman makes an important point of clarification. We are discussing individual samples taken from people under the Police and Criminal Evidence Act, which means there has been an arrest and a DNA sample has been taken. We are not talking about, for example, crime scene samples, which are not covered by the retention regime. Crime scene DNA is retained for further investigation. We are specifically talking about a profile and a DNA sample that have been taken after an arrest. I hope that that clarifies why we believe—even the previous Government believed it—that it is appropriate to regulate the retention of DNA profiles taken following arrest. There is a cold case database against which those samples can be compared.

Photo of John Robertson John Robertson Labour, Glasgow North West

I thank the Minister for that. Perhaps he could clarify a bit more. Imagine a case where several people are arrested, but not charged, and then released. Their DNA is taken and is in the cold case, which is still ongoing, but, over time, people may forget about it. Is that DNA destroyed, or is it kept until the case is done away with?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office) 11:15 am, 29th March 2011

This is where we reach a separate issue. DNA is perhaps taken from someone on arrest in relation to an investigation, and the processing takes place to derive the DNA profile computer record. There is then the opportunity to perform a speculative search against the cold case database to pick up any matches. Once the decision has been taken not to charge an individual—they have been arrested in relation to an investigation, which has followed through—they have their DNA profile destroyed, in essence, following the determination of no further action. In other words, there has been no decision to charge in that case, at which point the DNA profile is destroyed, unless there are certain prescribed circumstances.

This touches on another point that I will come on to, surrounding issues of vulnerability, and where the police might be able to apply to the biometrics commissioner to retain the DNA profile for three years in those circumstances, with the potential extension to two years. I hope that that addresses the hon. Gentleman’s point.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

The Minister may be aware that Liberty has expressed concerns that people might be arrested simply to capture their DNA. Is he confident that that sort of scenario cannot occur?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I hear the hon. Gentleman’s point on people being arrested in order to harvest their DNA. We have seen no evidence that that is taking place in practice. Indeed, the hurdle for arrest is well understood. While I recognise the concerns that an arrest might be made simply for the purposes of garnering DNA to create a profile, that is not borne out by the evidence we have heard.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

Would that not also open the police up to a civil action for false arrest?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

This is where I defer to the legal knowledge that no doubt sits behind me. I am sure that my hon. Friend’s expertise and experience mean that he must be right in that case, and I would certainly not wish to challenge his legal assessment of this issue.

It is worth highlighting that material is also held on police case files, in accordance with the code of practice issued under the Criminal Procedure and Investigations Act 1996, so that it can be disclosed to the defence in any subsequent proceedings. We are considering whether there are any issues that may interpose in relation to that, so I can confirm that there is further examination taking place around that Act.

However, the general principles that I have outlined are clear in terms of the destruction of the DNA sample following the creation of the profile. Under the old Crime and Security Act, if there was a dispute as to  the veracity of the profile that had been derived, there would be the ability to take a further sample under those circumstances; for example, if there was legal dispute as to whether the profile had been correctly produced following the arrest and initial sample being given. I can see the hon. Member for Eltham looking at me, so I will sit down and give way to him.

Photo of Clive Efford Clive Efford Labour, Eltham

I am grateful to the Minister. Could he clarify the position in relation to someone who is perhaps found guilty, but still pleads their innocence, and who faces the prospect of an appeal? Is there a procedure for giving guidance on the retention of samples in those circumstances, where they might be needed for re-testing? The Forensic Science Service tells me that it gets weekly requests for such tests, so this is an issue for it.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

It is a question of which samples the service is talking about. Clearly there is a need to protect crime scene samples to ensure that, on further investigation or appeal, they can be checked, that discussions and debates over those issues are properly heard, and that justice can be done. That is why we are distinguishing between a profile that is derived following arrest and a crime scene profile—the point made by the hon. Member for Glasgow North West—and why I have sought to be clear about the distinction between the two regimes, as well as the operation of the Criminal Procedure and Investigations Act 1996 and the preservation of crime scene and other information in the context of justice. We are talking about the specific avenue of the taking of samples following an arrest under PACE and the creation of a profile derived from the sample. I acknowledge that the area is complex, and that we shall get into further complexity as we progress through this part of the Bill.

Photo of John Robertson John Robertson Labour, Glasgow North West

The Minister is being very helpful. Another thought has come into my head. Let us imagine that the suspect is arrested and the DNA taken. Subsequently, the suspect is not charged, but he is still a suspect and will remain so as long as the case is open. What is the position of the DNA?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

My understanding is that, if a person has been arrested, under the Crown Prosecution Service requirements a charge would have to be brought within the normal period of about six months in relation to the investigation into the case or there would be a decision that no further action was to be taken. It is at that point that the CPS makes its determination of what should happen and whether the case is to proceed. A determination would then be made by the CPS whether to charge.

The only circumstances in which matters might be different is where there are issues of vulnerability or factors that the Home Secretary spoke about on Second Reading in respect of crimes of violence or sexual crimes. A period of retention of three plus two might be available in those specific circumstances following arrest but not charge, where the police might be able to apply and seek for that regime to operate. I will come on to that issue shortly, as the hon. Member for Eltham referred to it.

I am conscious of the fact that I must refer to several other matters, although to be clear I must point out that we shall not be destroying crime scene profiles, so there should not be a problem with cold case appeals. There is no need to retain individual samples, a point that was understood in the discussions on the Crime and Security Act, too, because a fresh sample can be taken if an appeal is required. Such a discussion took place in debates under the previous Labour Government, when such matters were considered carefully. To avoid some circumstances that the hon. Member for Eltham is understandably and rightly probing, a further sample can be taken so that no miscarriage of justice may arise. I hope that I have been of assistance to him on such points, that I have clarified matters and ensured that the Committee understands them.

Amendments 16, 17 and 18 highlight what is perhaps a major point of difference between the Government and the Opposition. As set out in the Crime and Security Act, Opposition Members believe that it should be possible to retain an individual’s DNA and fingerprints purely on the basis that a police officer at a particular moment had reasonable grounds to believe that an individual had committed a recordable offence, which is the evidential test to make an arrest. However, the Government consider that further safeguards are necessary before biometric material and profiles can be retained. First, it should be necessary for the arrest to be for a serious offence. Secondly, we think that either the police or the CPS should believe there is sufficient evidence for there to be a realistic prospect of conviction—the test for charging—and a much higher level of evidence. Alternatively, where it has not been possible to charge an individual with a serious offence—such as where witnesses have been intimidated—any decision to retain DNA and fingerprints should be taken by the independent commissioner for the retention and use of biometric material, not the police.

The hon. Member for Eltham raised a general point in relation to that. He will have read the Home Secretary’s comments on Second Reading, when she indicated that, if the police believe there are sufficient public protection grounds to justify the retention of material following an arrest for a qualifying offence that does not lead to a charge, the Bill should allow them to apply to the biometrics commissioner for the retention and use of biometric material, who will decide whether retention of the DNA profile and fingerprints of the arrested person is justified. That is in essence captured by subsections (11) and (12) of clause 3, which provide for the detail of such a scheme to be set out in secondary legislation. As the Committee heard from Chief Constable Chris Sims last week, we are working with the police service to ensure that the appropriate mechanisms and clarity are provided.

We have been very focused on the impact of changes. I am sure that the hon. Gentleman will come to this point. We look to the past as a good indicator of the impact of DNA retention and detections. The previous Government changed the law in 2003 to take material on arrest rather than charge. Yet, at that time, there were around 36,000 detections against a database of a much less significant size than now. Whereas, in 2009-10—with all the changes that the previous Government made—creating what is effectively indefinite retention and seeking to ensure that as many DNA profiles are  created as possible—there are 4.8 million profiles on the DNA database, yet the number of detections is 32,000, so it has gone down considerably, notwithstanding the significant growth in the database. We, therefore, believe it is appropriate to look at past evidence. The previous Government’s approach was seemingly to say, “We need to retain everything. We need to get as much as possible. This will detect and solve more crimes.” However, that was not borne out by the evidence of the number of detections that arose as a consequence of that policy. That is why I rebut a number of the criticisms that have been made, such as the point that simply reducing the number of profiles on the DNA database will automatically lead to a reduction in detections. The DNA database has grown and grown, but the detections have gone down and down.

Photo of Clive Efford Clive Efford Labour, Eltham

I do not doubt that the Minister’s figures are correct, and that the number of people on the database, as a result of retaining everyone’s DNA profile, has exponentially increased out of proportion to the number of detections. However, the debate has moved on, since the passing of the 2010 Act, to whether the period should be six years or three years. There is an evidence base for suggesting six years. The Select Committee concluded that it should be a minimum of three years, but it could be more. We are not talking about everybody’s profile any more; we are talking about whether the profiles should be kept for six years or three years.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office) 11:30 am, 29th March 2011

I am grateful for the hon. Gentleman’s clarification that the Labour party has moved on, and that it now believes that DNA should not be retained indefinitely and is instead focusing on six years. One gets the sense, however, that it has done that grudgingly, and that was not what the previous Government would have preferred to do—their starting point was to retain indefinitely. Given the hon. Gentleman’s indication, perhaps he would have preferred indefinite retention. Would he like to suggest that he did not, or does not, believe that it would be better to retain indefinitely? I take it from his lack of intervention that he does believe that, but we will no doubt have more clarity as we further consider the issue.

Photo of Clive Efford Clive Efford Labour, Eltham

What we are debating is the Bill before us. Evidence produced by the Home Office led to the previous Government making the decision, as a result of the S. and Marper case, to fix at six years the length of time for which the DNA of innocent people—those not charged or cautioned—could be retained.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I am grateful to the hon. Gentleman for highlighting the hazard rate analysis, which I am sure he has closely read, because it interestingly states:

“However, most of the incremental offending risk of the NFA group is dissipated some time before this point— the six-year point—

“as indicated by the relative flatness of the hazard rate curve after, for example, three years…The shape of the hazard rate curve indicates how significant offending risk is in the years immediately following an initial arrest. This means that the choice of shorter retention periods is quite robust to the sensitivities introduced by these errors and assumptions.”

The evidence that was proffered to justify six years is not clear-cut in the way that the hon. Gentleman suggests. When the Information Commissioner gave evidence to the Committee that considered the Bill that became the Crime and Security Act 2010, he said that that did not justify anywhere near six years. I think that he repeated that in evidence to this Committee last week and said that he was satisfied with a three-year retention period on the basis of the very evidence that the hon. Gentleman says supports his view on six years.

Photo of Clive Efford Clive Efford Labour, Eltham

I am prepared to concede that the hon. Gentleman might be right about three years. If he casts his mind back to the time when the 2010 Act was passed, he will remember that the previous Government suggested that what was needed was a detailed review of whether six years was effective and a reconsideration of the length of time for which profiles were retained. The problem with the Bill is that we will destroy everything that has been retained for three years, so we will never be able to carry out that assessment in detail.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

The interesting point in the hon. Gentleman’s analysis is that for the peak period of offending, which he would probably accept is in the range of 12 to 19 years, the previous Government were prepared to adopt a shorter period so that if someone was not convicted, their DNA would be retained for three years. There seems to be an agreement on three years, so it is interesting if the hon. Gentleman is trying to unpick that by saying that the time should increase again to six years. The hazard rate analysis highlighted that the largest risk might occur in that range for young people, yet the previous Government seemed happy to allow three-year retention in that very case.

Clive Efford rose—

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

Order. It might help the Committee if I point out that we will debate the issue of three or six years when we consider a later group of amendments, so it might now be time to move on to other issues.

Photo of Clive Efford Clive Efford Labour, Eltham

I will be guided by your comments, Mr Streeter.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

We have had a clear indication of the way in which some of our later debates will proceed, but we shall certainly be guided by you, Mr Streeter, on how to proceed with this debate. I shall move on, as we have plenty to get on with in any event.

Amendments 37 and 38 would place in the Bill further details of the circumstances in which DNA profiles and fingerprints may be retained following arrest. In particular, amendment 37 would require material to be retained in all cases of rape and “serious sexual offences”, although that term is not defined. Amendment 38 would also remove from the commissioner any role in deciding what material should be retained, except in cases of national security.

I have dealt with the point about the regime that we wish to adopt. We are working with ACPO on provisions on the ability to take and retain DNA profiles from arrest in situations of vulnerability, as well as the very matters that I have highlighted in connection with the  Home Secretary’s comments and how that was intended to be addressed by way of secondary legislation. We believe that that is the appropriate course and that it is right that the commissioner should be involved in retention in such cases. We also believe that clause 3 strikes the right balance between maintaining the effectiveness of the DNA and fingerprint databases, and protecting innocent people.

As in Scotland, in the generality of cases, if there is no conviction, biometric material should be retained for only a limited period when there is sufficient evidence to charge someone with a serious offence. It is right to refine the Scottish model to meet the needs of public protection in England and Wales by providing for retention following arrest in certain limited circumstances. Lowering the bar for retention, as the amendments to clause 3 would do, would fail to strike the right balance. That said, I fully accept the need for clarity about the retention rules in this area, and I note what the hon. Member for Eltham has said. I undertake to reflect carefully on his comments about that specific issue.

Turning to amendment 27, there might be some confusion about clause 8. The provisions reflect those in section 79 of the Criminal Justice and Licensing (Scotland) Act 2010, which permits the retention of DNA from those given what is termed in Scotland a fixed penalty notice, which is the equivalent of a PND—penalty notice for disorder—in England and Wales. It might help the Committee if I explain that a little further.

Contrary to the impression given by the hon. Member for Eltham and the suggestions made by the hon. Member for Gedling during our evidence sessions last week, we are not creating any new powers to take DNA or fingerprints. When someone is given a PND on the street without being arrested, there will be no power to take their biometrics, so there can be no retention. Again, to clarify the matter, we are talking about taking a DNA sample following an arrest, and if a penalty notice for disorder was subsequently issued, the retention period would be two years, which would reflect the situation in Scotland. I hope that the hon. Member Eltham accepts that some of the examples and hypotheses that he highlighted are not the case.

It is important to clarify that a fixed penalty ticket does not constitute a conviction for the purposes of the Bill. The hon. Gentleman referred to two convictions and minor offending provisions in the Bill, and my clear understanding is that they would not be activated because the matter is treated separately.

Clause 8 will operate only when an individual has been arrested and taken into custody. Their biometrics will be taken as part of the normal custody process, and we believe that when someone is given a penalty notice as an alternative to a caution or to being charged, it would be appropriate to retain that individual’s biometrics for a short fixed period. Under the Crime and Security Act 2010, all arrested individuals—whether or not they were subsequently given a penalty notice for disorder—would have had their biometrics retained for six years. It will be interesting to know whether the hon. Gentleman is again changing the Opposition’s position. Is he now saying that that six-year period was wrong in circumstances  when a fixed penalty ticket was issued? I certainly thought that he was inferring that that period was in some way inappropriate.

Clive Efford rose—

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

Perhaps the hon. Gentleman will give us some clarification.

Photo of Clive Efford Clive Efford Labour, Eltham

It was not us who drafted these provisions. This part of the Bill deals with the retention of DNA, and it is only right and proper that we ask the Government to set out their intentions.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I think I have given such clarification. The fact that the point about perhaps going too far was raised this week and last week implies that the Opposition are changing their approach. Part and parcel of our debates in Committee is hearing how the Opposition telegraph where they stand on certain issues. I know that scrutiny is a key part of what we do in Bill Committees, but the Opposition’s position is also relevant. Perhaps they do not have a position on this issue, but we may gain some clarification during the course of our proceedings.

Finally, let me deal with new clause 1. I remind the Committee that the Counter-Terrorism Act 2008 includes powers to take, use and retain the fingerprints and DNA of individuals subject to control orders. As hon. Members will know, those powers have not been commenced. That was a direct result of the S. and Marper judgment, which necessitated a re-examination of the retention regime under the 2008 Act, in much the same way that we looked at the retention regime under the Police and Criminal Evidence Act 1984.

New clause 1 is essentially an Opposition proposal to reactivate the retention regime under the Crime and Security Act 2010. Although I note that the hon. Gentleman said that this was a probing measure to clarify the Government’s position, we are not minded to accept the new clause for three reasons, the first of which is that given that the power to take fingerprints from controlled individuals has never been commenced, there is no need to have provisions relating to the retention of such material.

Secondly, and more fundamentally, the Government have already announced that they are repealing control orders legislation and replacing it with provisions on terrorism prevention and investigation measures. In the future, there will therefore be no need for provisions relating to the DNA of those subject to control orders. Thirdly, we are unconvinced that, in relation to controlled individuals, as with those arrested under the Police and Criminal Evidence Act, the retention provisions in the 2010 Act, and therefore new clause 1, strike the right balance between maintaining the effectiveness of the DNA and fingerprint databases, and protecting the rights of individuals whose material has been taken.

That said, I can support the underlying thrust of the new clause. We agree that there should be provision for the taking and retention of DNA of individuals subject to terrorism prevention and investigation measures. Consequently, we are finalising our provisions on this point, and we will repeal the uncommenced taking powers in the Counter-Terrorism Act 2008 and make provisions for the taking of fingerprints and non-intimate  samples from persons who are subject to terrorism prevention and investigation measures as part of our consideration of the new approach.

With that explanation, I hope that the hon. Gentleman will be minded to withdraw the amendment.

Photo of Clive Efford Clive Efford Labour, Eltham

The Minister raises a number of points that need further clarification. I was slightly confused by his opening comment about the detail that is retained on the DNA database. I specifically asked the Forensic Science Service whether the police could derive the sort of information to which the Minister referred from that database. The answer that came back was, “No, they can’t.” On further investigation, data and material held by the Forensic Science Service is retained, but I understand that that information is not on the national DNA database. We can clarify that and come back to it later, and perhaps someone will pass the Minister a note.

The Minister also said that the people who gave evidence did not feel that the retention of biometric data—albeit anonymously, if they are removed from the national DNA database—was an issue. However, Dr Wallace from GeneWatch raised the question of trust with regard to organisations that hold such information. There will be an issue about monitoring and regulation of those organisations, particularly if we no longer have a national Forensic Science Service after it is outsourced and privatised. I am sure that people will be concerned about how private companies will organise themselves and retain information. When I asked Dr Metcalfe specifically about the point, he said that there were questions about the retention of details by organisations and information on the searchable national DNA database.

I am still slightly confused about one matter. I am sorry if I have missed something that the Minister said, but I would be grateful if he could clarify the following point. The commissioner for the use and retention of biometric material has been referred to by the Minister in the same terms that the Secretary of State used on Second Reading. We hear that a chief officer will be able to apply to the commissioner to retain DNA in certain circumstances, but we still do not know what they are. I cannot see any reference to that other than that the Secretary of State may prescribe as she sees fit any specific areas that may be included. The Minister alluded to an example where the victim may be a vulnerable individual, but many crimes would fit that description.

The Bill seems to suggest that the primary function of the commissioner concerns national security, yet there is just one reference in clause 3 to the commissioner. It is not clear what other crimes or areas of crime might be considered. I take it that the Government intend to allow the commissioner to oversee the retention of material outside matters of national security, but just how far that will go is still not clear.

We have tabled amendments on penalty notices because clause 8 has been included in the Bill. Penalty notices may be given for something as trivial as littering.

Photo of Clive Efford Clive Efford Labour, Eltham

Yes, but it is worth clarifying exactly what we are talking about, because penalty notices can be given to people as young as 10. The retention of biometric details in such cases is allowed under the Bill, so it is worth clarifying where the Government stand on that.

We welcome the comments about control orders. We tabled the new clause to probe the Government’s thinking. They will come back with details about that, and we will have to discuss them when they bring forward their final proposals. Does the Minister wish to make any further comments?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I was not intending to, Mr Streeter, but I would add for clarification that the DNA database contains a numerical profile, as the hon. Gentleman rightly highlighted, including an XY chromosome indicator—in other words, an indication of male or female. That profile can give information on ethnic traits, for example, although not as explicitly as the genetic sample itself. Such information is not given to the police as part of the initial match report, but it will be as part of the evidence to charge and prosecute, so a distinction may be drawn about when such information is given. We are talking about sensitive information, which is why we are having this debate and people such as the Information Commissioner are involved. That is also why we think that a proportionate regime needs to be introduced.

Photo of Clive Efford Clive Efford Labour, Eltham

I am grateful to the Minister for clarifying that I was correct that the initial search does not divulge such detail. It may indicate the presence of an XY chromosome because it is a strand that reads different sections of the DNA. I am told that, because there are two numbers in one section, that will indicate that there are two chromosomes—an X and a Y—whereas the alternative would be two Xs. I am grateful that I am correct that the initial search does not show the detail, as some people have claimed. With that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Clive Efford Clive Efford Labour, Eltham

I beg to move amendment 24, in clause 1, page 2, leave out lines 24 to 27 and insert—

‘(6) A speculative search of the DNA database and the national fingerprint database, in relation to section 63D material, must be carried out.

(7) The search must be carried out within such time as may reasonably be required for the search.

(8) In the event of the fingerprint, or DNA profile, being taken from a person in connection with that person’s arrest and the arrest was unlawful or based on mistaken identity, then the sample is exempt from (6) above.’.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

With this it will be convenient to discuss the following: amendment 25, in clause 13, page 9, line 22, at end insert—

‘(3) Before the DNA profile is destroyed, a speculative search of the DNA database must be carried out.

(4) The search must be carried out within such time as may reasonably be required for the search.

(5) In the event of the fingerprint, or DNA profile, being taken from a person in connection with that person’s arrest and the arrest was unlawful or based on mistaken identity, then the sample is exempt from (3) above.’.

Amendment 26, in clause 14, page 10, leave out lines 8 to 11 and insert—

‘(7) A speculative search of the DNA database and the national fingerprint database, in relation to section 63D material, must be carried out.

(8) The search must be carried out within such time as may reasonably be required for the search.

(9) In the event of the fingerprint, or DNA profile, being taken from a person in connection with that person’s arrest and the arrest was unlawful or based on mistaken identity, then the sample is exempt from (7) above.’.

Photo of Clive Efford Clive Efford Labour, Eltham

The amendments relate to the need for a speculative search to be carried out when somebody is arrested. We tabled the amendment because the view of Chris Sims from the Association of Chief Police Officers is that everyone arrested should have a speculative search carried out. However, I cannot see that requirement anywhere. I can understand why it is ACPO’s wish that everyone who is arrested should have that initial speculative search carried out against the national DNA database. Time will move on and if it is not a requirement, resources will be tight, and the police will have to make cuts and economies. The concern is that we could slip into a practice whereby chief officers make their own decisions locally. They may decide that it is not worth the trouble of undertaking a DNA search for somebody who is held for a minor offence overnight and is perhaps in a cell for being drunk and disorderly in a public place, but has not been charged. However, we know from past experience that taking DNA in those circumstances has led to the DNA database showing up a match. One big example of exactly that is Mark Dixie in the Sally Anne Bowman case.

I know that it is not the intention to stop speculative searches now, and that it would not be the intention of the Government or ACPO, but we are considering the Bill’s being in force for several years and being the framework within which the police operate. It is not unreasonable to suggest that practices could change in future. I would be grateful for the Minister’s comments on that. A speculative search of people who are arrested should be carried out and I would be grateful for the Minister’s reassurance that there will be no opportunity for the police to decide in future that, in some cases, we should not be doing that.

Photo of Nicola Blackwood Nicola Blackwood Conservative, Oxford West and Abingdon

How do the hon. Gentleman’s amendments sit with the well-established concept of operational independence, as set out by Denning in the original case of Blackburn?

Photo of Clive Efford Clive Efford Labour, Eltham

There are many areas in which we regulate for the police to act and for which we set the framework. We would not direct them operationally on how to police their local areas. It would be a framework within which they had to act, and we believe that a speculative search should be carried out in all cases. I suspect that the police will want to do it, but other pressures may apply that require them to consider how their resources are used and whether it can be done in every case. I stress that we are discussing whether it is carried out in every case, and whether the Government intend to ensure that the police do so.

Subsection (5) deals with “a speculative search” in relation to those who have been arrested as a result of mistaken identity or have had their samples obtained illegally. I suggest that that is inconsistent with the thrust of the Government’s approach. Those people must be the innocent of the innocent, who find themselves in a police station. It is a “while you’re here” provision, suggesting that someone who has been arrested as a result of mistaken identity or whose DNA has obtained illegally should have a DNA search run against them.

Our witnesses went much further. We heard that records of people arrested in such circumstances should not be kept, and that the arrest of those who are innocent, whether or not they are charged or cautioned, should not be retained on the police database. Some are concerned that the civil liberties aspects go beyond anything that the Committee would support. I wonder what approach the Minister believes should be taken to those who find themselves in such circumstances who are totally innocent. Should a speculative search be undertaken? Should the police go on a fishing exercise in such circumstances?

Photo of Gareth Johnson Gareth Johnson Conservative, Dartford

The amendment is unclear about who should decide whether there is mistaken identity. Many of those who are arrested obviously say, “It wasn’t me. You’ve got the wrong person.” It puts an awful lot of pressure on the police to ask an officer to say that it is a case of mistaken identity. An inspector may not be able to make that judgment. It is simply not clear from the amendment who would have to make that judgment.

Photo of Clive Efford Clive Efford Labour, Eltham

In the course of dispensing with a case, the police will presumably reach a conclusion about whether the person is the one they intended to arrest or whether the DNA was obtained through an improper process. That will be for the police themselves to determine, as it is the police who will initiate the search.

Photo of Steven Baker Steven Baker Conservative, Wycombe

Listening to the hon. Gentleman, and comparing the amendment with the original text, it is not clear why he wants to make the marginal change between:

“Nothing in this section prevents a speculative search” and mandating a speculative search in all cases. He said that he knows that the police want to secure convictions—that is the implication that I draw from his remarks—so why does he want to compel them?

Photo of Clive Efford Clive Efford Labour, Eltham 12:00 pm, 29th March 2011

We think it is necessary, and so does ACPO, that all who are arrested should have a speculative search. That does not mean that the data would be retained. If someone is innocent or not charged or cautioned, and it is not a proscribed activity, of which we are awaiting the details, the data would not be retained. We are talking about a one-off speculative search of the database. The legislation does not set out that it should be a matter of course and should be carried out. We are questioning whether it should be in the Bill, so that there is no potential in future for local chief officers with budget pressures to decide that they will not carry out a forensic search of the DNA database each time someone is arrested. We tabled the amendment to find out the Government’s view on that.

We know from Second Reading that the Lib Dems see this as the first step towards a second freedoms Bill reducing the power of the state in many ways. We heard evidence from the Information Commissioner, Liberty and Justice that they do not believe that it is right to undertake speculative searches of innocent people. We may or may not agree with that, but we are talking about people who must be the most innocent: they have been brought to the police station by mistake and their samples have been obtained illegally.

Does the Minister believe that speculative searches of people arrested in such circumstances should be carried out? That seems to be inconsistent with the Bill’s approach. We heard from Information Commissioner, Liberty and Justice that not only should such things not happen, but records of arrest should be removed, as I have said. Does the Minister believe that that approach would be consistent with the Bill? Is there any prospect of the Government, in a future freedoms Bill or even in an amendment to this measure, pursuing a further erosion of information held by the police, including even removing information about people who are arrested and not charged or cautioned?

Does the Minister believe that it is right to perform a speculative search of people who have done nothing wrong? We are talking about victims of mistaken identity or procedural irregularities, which result in personal details being taken and someone being subject to a speculative search. Does the Minister agree that that is inconsistent with the Government’s approach to the Bill?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

As the hon. Gentleman indicated, the amendments would place a duty on the police to carry out speculative searches of the national fingerprint and DNA databases in all cases before material is destroyed, except when the arrest is unlawful or based on mistaken identity. That contrasts with the position in the Bill, whereby the police have general discretion to search but can choose not to do so if they do not consider such a search desirable.

Although I note the hon. Gentleman’s point about the importance of speculative searches, and we very much agree that a speculative search against the cold case database can result in detections, it is worth highlighting the distinction between the legal and practical. In practice, there is not much, if anything, between the mandatory model and the model in the Bill, because the process for conducting speculative searches against the DNA and fingerprint databases is wholly automated. Once a new DNA profile or set of fingerprints is loaded on to the database, it is subject to speculative searches. As I said, in practice, there is not much between us on this, because it happens as a consequence of automatic loading.

Photo of Steven Baker Steven Baker Conservative, Wycombe

The hon. Member for Eltham mentioned the cost of searches and the pressure on police budgets. I infer from the Minister’s remarks that there actually would not be a cost associated with speculative searches. Can he confirm what I infer?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

My hon. Friend’s question highlights several interesting points that have been made by the hon. Member for Eltham. I am still not sure what the  Opposition position is on a number of points. Is this another change in the position that was adopted by the previous Government? My understanding of section 5 of the Crime and Security Act 2010 was that fingerprints and samples could be checked in such circumstances, so I do not know whether there has been some movement in their position. It will be interesting to see whether that is the case, or whether this is simply a probing amendment, as the hon. Member for Eltham said, and the Opposition have not actually moved their position at all. It will be interesting to discern that as we progress further with the Bill. Perhaps the hon. Gentleman will be able to tell us when he closes our mini-debate on this group of amendments.

To return to the substantive point, I share the hon. Gentleman’s view about conducting speculative searches. That is why the Bill, in providing for them, refines the Scottish model. Practically, there is not much difference between us on the principle, albeit we believe that the wording in the Bill is appropriate to deal with the matter.

On the issue of the person who may be subjected to unlawful arrest or arrest based on mistaken identity, obviously, as the hon. Gentleman will know from new section 63D(2), the Bill specifically addresses retention and takes account of concern that there should not be ongoing retention. The subsection states that the DNA profile must be destroyed if it appears to the responsible chief officer of police that some of the very circumstances that the hon. Gentleman alluded to may arise. It is important that that is expressed in the Bill in this way.

There is no question of retaining material in the circumstances set out in new section 63D(2). However, there is obviously allowance for a speculative search if an arrest takes place, but the question I would put to the hon. Gentleman is about timing and the complexity that may arise. It may come to light only subsequently—when the case actually gets to court—that an arrest was wrongful. That is often where the evidence is challenged and some of these issues arise.

The timing issues that the hon. Gentleman is talking about, and the factors that he seeks to protect following an arrest, will come further down the track, well after the arrest, well after the loading and creation of a profile, and well after a speculative search. The key thing is that there should be no retention in such circumstances, which is precisely why we have made provision in clause 1 to cover them. For the reasons that I have given, I hope that the hon. Gentleman will be minded to withdraw the amendment.

Photo of Clive Efford Clive Efford Labour, Eltham

I am grateful to the Minister. The amendment on speculative searches of people who have been arrested because of mistaken identity or have had their DNA taken for a process that is not lawful was intended to highlight the difference of opinion that may exist among the coalition. Among Liberal Democrat MPs, the position is clearly that there is a need for a further freedom Bill—a need to go further; and the suggestion from many of our witnesses was that some of the clauses in the Bill did not go far enough. A great deal of the rhetoric about the Bill, particularly from the Deputy Prime Minister in the lead-up to its publication, suggested that it would involve root-and-branch change, but the provisions relating to people who are innocent seem to be inconsistent with that.

However, I take on board the points about practicality. I wanted to tease out the point that there are some inconsistencies in the Bill. Rather than being a great revising Bill, which contains new rules and tears up existing rules, it is an amending Bill; almost every set of clauses amends something that already exists.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

But would the hon. Gentleman accept that a person would have their DNA retained indefinitely under the regime created by the Labour Government or, potentially, for six years under arrangements that he might previously have proffered?

Photo of Clive Efford Clive Efford Labour, Eltham

That may be true, but I am not the one who has been promoting the Bill as a huge step forward for freedom and liberty. The way the coalition has talked up and talked about the Bill suggests that it is some sort of great root-and-branch ripping up of all the “rotten” laws passed by the previous Government, but it is nothing of the sort; it is a tinkering Bill, with a bit shifted here, a bit shifted there and a bit chopped off somewhere else. That is really what we have.

On speculative searches, I am sure we are on the same ground. Such searches have been important in detecting serious crime, and I hope the Minister will take that on board. However, there is one thing we do not want the police to do, and my concern is that nothing in the Bill protects us from it. The hon. Member for Wycombe intervened on the Minister to suggest that no cost is involved, but there is. The police must pay the Forensic Science Service for the service it provides, and they might be looking for economies in the future; it is not impossible to envisage. That is the concern that we are highlighting, and we would like reassurance from the Government that we could not slip into a situation where chief officers take such decisions at local level.

That said, unless the Minister wants to respond, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Clive Efford Clive Efford Labour, Eltham

I will not detain the Committee long. We have had quite a long debate on clause 1. It raises issues about how we deal with information and particularly how we describe it. The way information is described and reported actually influences how people think about it. At the end of our exchanges, it was clear that what is provided by the national DNA database is a string of numbers. Initially, all the police get is an indication of whether there has been a match on the database when a check has been run overnight. Further inquiry leads to their finding more information.

It is important that we understand those things in the terminology we use. Bodies such as Liberty say that the police have almost routine access to personal information. That is incorrect, but such comments have influenced the debate. The concern is that such discourse may lead people to feel that the provisions are more intrusive of people’s private lives than they actually are, that information is freely bandied around in police stations, which it is not, and that people need more protection from the way information is used, which is simply not the case. The  Minister shakes his head, but we have heard such comments from people who we expect would know more about how such information is handled and who has access to it. That has influenced how people have approached the issue. Information is an important tool for the police in the detection of crime.

If the Bill becomes an Act, many people who have had their DNA retained for up to six years will not be on the database and may go on to commit very serious crimes. We are denying ourselves the opportunity to assess the effect of the removal of profiles from the DNA database.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office) 12:15 pm, 29th March 2011

I just want to check: from the hon. Gentleman’s comments in relation to risk, it seems as if he is going beyond six years. I know that the previous Home Secretary, Jacqui Smith, wanted a 12-year retention period. I do not know whether some change has taken place.

Photo of Clive Efford Clive Efford Labour, Eltham

We are dealing with the situation that has existed since the Crime and Security Act 2010 and the proposals before us. The evidence presented when we were in government just over a year ago clearly set out the case for a retention period of six years. As I have pointed out, the Home Affairs Committee’s conclusion was that there should be a minimum of three years. If the Minister checks the wording of its report, it says “at least” three years; it does not actually recommend three years.

The clause sets out how DNA will be removed from the database, and the title of the clause suggests that it is about the destruction of DNA profiles. As I highlighted earlier, that gives the impression that we are talking about people’s physical details being retained for the purposes of DNA, and that is simply not the case. That is why we tabled an amendment to highlight one of the problems with the way in which the matter has been debated. People’s DNA profiles are a very emotive issue; people are quite rightly sensitive about it. At times, it has led to comment and assumptions about what details are available and what information people have access to that are not entirely accurate. That has led people to support positions on altering the retention of DNA profiles that we may live to regret, in many instances. I would be interested to hear the Minister’s comments.

Photo of John Robertson John Robertson Labour, Glasgow North West

I want to ask the Minister a couple of questions. My hon. Friend the Member for Eltham has mentioned cost. I have concerns about the added cost that there may be for our police services as a result of changing the rules. The previous Act, which should have been brought in by now, is not there. It is causing complications; the new Act will come on top of an old Act that was not even implemented.

May I ask the Minister to comment on the Scottish angle of his investigations into the Bill? I have concerns about the information that he has been getting and how it is being interpreted. I look forward to his answers. May I say, as someone who was not exactly in favour of the previous amendment on DNA, that I have absolutely no problem with a DNA database being kept for ever on every single person in this country? I can see good reasons for having that; I want to put that on the record.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I am grateful to the hon. Gentleman for his comments, which contrast markedly with the rhetoric of his leader, who takes a very different-seeming stance on civil liberties issues, but no doubt we will return to that in a different way. I acknowledge the purity of the hon. Gentleman’s logic in wanting to keep everybody’s DNA on the national DNA database for ever and a day. It may be worth his talking to the hon. Member for Gedling, who I know is on record saying that that would be disproportionate. There is clearly an understandable difference in view, but the hon. Member for Glasgow North West makes a fair point; however, I agree with the hon. Member for Gedling that that would be disproportionate and not appropriate.

The hon. Member for Glasgow North West will have seen the regulatory impact assessment and the costs suggested in that. We have been working hard with the police service and ACPO to reduce the costs of implementing the proposals. In the previous Government’s Crime and Security Act 2010, implementing that proposal had a one-off initial cost of £50 million, as is stated in the regulatory impact assessment. I assure the hon. Gentleman that we have been working hard to make important changes and savings in the proposed regime, which will make it more cost-effective than the regime under the 2010 Act.

Photo of Clive Efford Clive Efford Labour, Eltham

First, at no stage did I say that everyone’s DNA should be on a DNA database; let us get that on the record. There is a point about future costs and how DNA will be processed. Do the Government intend to continue processing in batches, so that information is retained, albeit anonymously, by Forensic Science Service providers? If so, how will that be regulated? People have concerns about that.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I was actually referring to the comments of the hon. Member for Glasgow North West. I would not wish to impute any such comments to the hon. Member for Eltham, given what he may say during the rest of the Committee. Using batches and the magic number 82, which we discussed in the previous debate, is a practical and cost-effective way for Forensic Science Service providers to process the DNA and derive a profile that can be loaded on to the national DNA database. The key point is the destruction of the DNA sample provided following the creation of that profile. Even if samples are processed in batches of 82, they will be destroyed at the end, and if the conditions in the Bill are not satisfied, the profile derived from the sample will be destroyed. The hon. Member for Eltham has focused on the processing aspect, but as I said earlier, GeneWatch clearly indicated that it felt that to be a bit of a red herring. Regulation also comes from the forensics regulator.

It has been interesting to listen to some of the debate on this issue. The hon. Gentleman seems keen to downplay the sensitivity of the information retained on the national DNA database, even if there are familial or ethnic traits or other information that can be derived from it. I am a little surprised that he appears to make that case, despite the information provided by the Information Commissioner, who clearly has concerns about the sensitivity of the information, hence the points that he has consistently made about the situation.

The hon. Member for Glasgow North West raised issues about the position in Scotland; it may be appropriate to have a longer debate about that, about three years versus six years, and about the Scottish model. Clause 1 makes important changes and telegraphs very clearly that there will be a proportionate regime for the retention of DNA material, and we therefore seek its inclusion in the Bill.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.