Clause 10

Protection of Freedoms Bill – in a Public Bill Committee at 9:30 am on 5th April 2011.

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Photo of Clive Efford Clive Efford Labour, Eltham 9:30 am, 5th April 2011

I beg to move amendment 59, in clause 10, page 8, line 11, after ‘with the’, insert ‘written’.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

With this it will be convenient to discuss amendment 60, in clause 10, page 8, line 13, after ‘the’, insert ‘written’.

Photo of Clive Efford Clive Efford Labour, Eltham

The amendments introduce an element of check and balance in the process for people giving material voluntarily. Later clauses refer to consent, and consent given in writing, but it is not clear how the process is dealt with. When material is given voluntarily, I assume it will be for a process of elimination in an investigation. What would happen if somebody withdrew that permission during the course of an investigation? What process would they go through in order to say that they no longer wished their material be retained and what information would they get when it was volunteered? Would they be asked to fill in a form?  What will be the police guidance so that people are aware of their rights? What should they do if they become concerned? Who should they contact, and what process would they go through? If people are to be encouraged to volunteer and feel confident about it, there must be some checks and balances to give them the confidence to assist the police. If they are suspicious about the process in any way it might deter them from participating and could create difficulties for the police.

The Bill does not seem to indicate the process that people will sign up to and how it will be managed, and what their rights are if they wish to request that their information be destroyed. Nor does it indicate how, at the end of an inquiry of which they are no longer a subject, they will be informed that their material has been destroyed and that all relevant documentation that identifies them as associated with a DNA profile has been removed.

There are provisions in other clauses regarding the destruction of materials and the removal of information from the database. This is a probing amendment to clarify where the process of volunteering fits with those other provisions. We want to find out exactly how the public will be given confidence in the process in order to encourage them to help the police, and so that they fully understand what will happen to their material and how it will be removed once it is no longer required.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office) 9:45 am, 5th April 2011

I thank the hon. Gentleman for his comments on the issue of material given voluntarily. Clause 10 inserts new section 63M into the Police and Criminal Evidence Act 1984, which makes it clear that material given voluntarily in connection with an investigation may only be retained until it has fulfilled the purpose for which it was taken—that is, until it has been compared with the sample taken at the scene of the crime being investigated. In other words, it is for that limited extent and limited period.

Amendments 59 and 60 seek to amend subsection (1) of new section 63M of the Police and Criminal Evidence Act so as to provide that the fingerprints and DNA given voluntarily must be given with the written consent of the person concerned. However, given that Clause 10 deals with retention rather than taking, it is unclear what this amendment would do, although I appreciate the probing nature of the amendment and the manner in which the hon. Gentleman sought to highlight it.

The hon. Gentleman’s points would be unnecessary in any event. PACE code of practice D deals with the taking of biometric material in connection with the investigation of an offence and annex F to that code deals specifically with the taking of material with consent. Annex F makes it clear that consent must be given in writing; it provides sample wordings for such consent and also requires that on the rare occasions where volunteer material is intended to be kept beyond the particular investigation, a separate signed consent must be obtained for that as well.

So, although the hon. Gentleman has made a fair point, we consider that those points have been adequately dealt with pursuant to code of practice D under the Police and Criminal Evidence Act, reflecting the relevance of the points that he has highlighted.

Photo of Clive Efford Clive Efford Labour, Eltham

I am grateful to the Minister for that reply. I accept his points and the guidance he has indicated. It is important because, as we have discussed, there is public concern about how details are treated and how profiles are retained. People are rightly cautious about that. An important part of the police’s weaponry against crime is public participation and assistance—people coming forward and giving evidence. In this case it means people coming forward and giving personal biometric data that allows them to be eliminated from suspicion of having committed a crime and assists the police in detection of crime. It is important that people have confidence in that process. With all the best guidance in the world, information giving people confidence at the early stage of that process is important. Having said that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Steven Baker Steven Baker Conservative, Wycombe

I beg to move amendment 45, in clause 10, page 8, line 16, at end insert ‘and must in any event be destroyed within one year from the date it was taken.’.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

With this it will be convenient to discuss amendment 47, in schedule 1, page 92, line 19, leave out from ‘(2))’ to end of line 21.

Photo of Steven Baker Steven Baker Conservative, Wycombe

I offer amendment 45 to the Committee and the Government by way of tidying up. As we have discussed, clause 10 relates to material given voluntarily. We have in mind someone who perhaps wishes to help the police with their inquiries and eliminate themselves from those inquiries. I am conscious of the Minister’s remarks on amendments 59 and 60, in which he explained that the sense of the Bill is to remove a profile from the database as soon as possible, as soon as a person has been eliminated from inquiries. With that in mind, I offer the amendment to tauten subsection (2) and to say simply that, in any event, the profile must be destroyed within one year.

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

I thank the hon. Gentleman for giving way. I wonder, however, whether he picked up on what the Minister said, which was that there are certain circumstances in which, even after the initial investigation, there is retention. It may therefore be that that would stand in the way of his proposal to keep profiles for a year.

Photo of Steven Baker Steven Baker Conservative, Wycombe

I am most grateful to my hon. Friend. Does he support my proposal that we should destroy profiles after one year?

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

I am happy to intervene again. I am suggesting that the hon. Gentleman may need to hear from the Minister the circumstances in which, after the initial investigation, DNA will be retained for a purpose that the Minister did not spell out. I am sure that, when the Minister responds to the debate, he may do so. That may mean that DNA has to be retained beyond the one-year period that the hon. Gentleman refers to in his amendment.

Photo of Steven Baker Steven Baker Conservative, Wycombe

I am most grateful to my hon. Friend. I must admit that, in my own mind, I imagined that if somebody had been arrested, charged or convicted, then other provisions in the Bill would apply. The  amendment, therefore, just speaks to the specific point of material being given voluntarily; in particular, to help someone eliminate themselves from inquiries. If proceedings were in progress, then another section of the Bill would apply.

The driver for me here is that members of the public should have the confidence to help the police with inquiries and have themselves eliminated from those inquiries, knowing that their DNA profile would be retained for the absolute minimum period.

My arguments relating to amendment 47 are similar; it too is intended to tidy up the Bill, which, as phrased, is rather open-ended. The purpose of taking DNA was for transmission to the International Criminal Court. Therefore, we should eliminate any vagueness and open-endedness by removing subsection (2)(b) to ensure that any material is destroyed before the end of the six-month period. Further to my hon. Friend’s remarks, perhaps there are other circumstances that we have not imagined and which the Minister might wish to address.

I offer amendments 45 and 47 to tidy up and close some open-endedness in the Bill. I hope that the Government will accept the amendments.

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

I thank my hon. Friend for highlighting those issues on the retention of material taken from volunteers and those sampled at the request of the International Criminal Court. First, clause 10 provides that material taken from volunteers may be held only for as long as is necessary to fulfil the purpose for which it was taken, as we have debated in the previous mini-debate. Secondly, clause 11 provides that material held with consent may only be retained for as long as that consent remains in place. The interrelationship between clause 10 and clause 11 is relevant on this point and, I hope, provides context.

While the current legal position on volunteer material is that consent, once given, cannot be withdrawn, I understand that the national DNA database strategy board, which we will no doubt discuss further, has already removed all volunteer profiles from the national database and is not accepting any further volunteer profiles on to the database, except when a volunteer makes a specific request to do so. Volunteer profiles are now just held locally by the relevant police force and checked against the crime scene sample in question. That question of consent and knowledge—knowing why the consent provided, given the current framework, does not allow for an opt-out—is why the provisions in the Bill make that clear. No doubt we will discuss the issue of withdrawal of consent in relation to the next group of amendments.

This is an issue that we are seeking to explore further with the police and Crown Prosecution Service, as it affects, for example, a person’s wish to have their profile retained on a long-term basis. They may wish to ensure that they are eliminated from further inquiries and so their consent should be considered in that context.

My hon. Friend makes an interesting suggestion that, as with samples, there should be an absolute time limit of 12 months beyond which volunteer material must not be held. I would want to explore this idea fully with the police and Crown Prosecution Service before committing to introduce such a time limit. I certainly am not  opposed to the principle, albeit people may wish to consent to have their material retained for a longer period. It is now a question of seeing how that interrelationship fits together. I will certainly reflect carefully on my hon. Friend’s amendment on the retention of volunteer samples.

Amendment 47 deals with material taken on behalf of the International Criminal Court and it may assist the Committee if I say a little about that procedure. The provisions of schedule 4 to the International Criminal Court Act 2001 give police officers in England, Wales and Northern Ireland powers to take DNA samples and fingerprints following a request from the International Criminal Court in The Hague. The International Criminal Court Act 2001 places tight restrictions on the use to which DNA samples and fingerprints taken on behalf of the Court can be put, and nothing in the Bill changes those restrictions, which in essence prohibit the use of material taken at the request of the Court except for purposes specified by the Court.

Part 2 of schedule 1 to the Bill places a general six-month limit on the retention of material once it has been transmitted to the Court; this includes samples, DNA profiles and any copies. My hon. Friend’s amendment would delete the second limb of new paragraph 8(2) of schedule 4 to the 2001 Act, which would therefore require the deletion of all material within six months of its transmission to the Court, whether or not it had fulfilled the purpose for which such material was taken. While we would not expect the police to need to retain the material beyond the six-month point except in exceptional circumstances, we none the less believe it to be right that they could do so where there was an ongoing need to retain it on behalf of the International Criminal Court. That is the important link there: the Court has to need that retention.

I hope my explanation has satisfied my hon. Friend that the provisions in the Bill in respect of those sampled or fingerprinted at the request of the International Criminal Court are entirely appropriate and that we will consider his proposal in respect of volunteers. On that basis I would invite him to withdraw his amendment.

Photo of Steven Baker Steven Baker Conservative, Wycombe

I am most grateful to the Minister for his consideration of the amendment and for setting out his view of the interplay between clauses 10 and 11. I understand the Government’s point about the Court but I remain concerned that the provisions are a little open-ended. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.