New Clause 10 - Retention of personal samples that are or may be disclosable

Anti-social Behaviour, Crime and Policing Bill – in a Public Bill Committee at 8:55 am on 16th July 2013.

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‘(1) In section 63U of the Police and Criminal Evidence Act 1984 (fingerprints and samples etc: exclusions from destruction rules)—

(a) in subsection (5) (material that is or may become disclosable to the defence), for “Sections 63D to 63Q, 63S and 63T” there is substituted “Sections 63D to 63T”;

(b) after that subsection there is inserted—

“(5A) A sample that—

(a) falls within subsection (5), and

(b) but for that subsection would be required to be destroyed under section 63R,

must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.

(5B) A sample that once fell within subsection (5) but no longer does, and so becomes a sample to which section 63R applies, must be destroyed immediately if the time specified for its destruction under that section has already passed.”

(2) In Schedule 8 to the Terrorism Act 2000 (detention of terrorist suspects etc), in paragraph 20I (substituted by paragraph 1 of Schedule 1 to the Protection of Freedoms Act 2012) (fingerprints and samples etc: exclusion from destruction rules of material that is or may become disclosable to the defence)—

(a) for “Paragraphs 20A to 20F and 20H do not apply to paragraph 20A material” there is substituted “Paragraphs 20A to 20H do not apply to material”;

(b) at the end of that paragraph (which becomes sub-paragraph (1)) there is inserted—

“(2) A sample that—

(a) falls within sub-paragraph (1), and

(b) but for that sub-paragraph would be required to be destroyed under paragraph 20G,

must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.

(3) A sample that once fell within sub-paragraph (1) but no longer does, and so becomes a sample to which paragraph 20G applies, must be destroyed immediately if the time specified for its destruction under that paragraph has already passed.”’.—(Damian Green.)

Brought up, and read the First time.

Photo of Jim Dobbin Jim Dobbin Labour, Heywood and Middleton

With this it will be convenient to discuss Government amendments 109 and 110.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

As part of our coalition commitment to introduce greater safeguards in the operation of the national DNA database, the Protection of Freedoms Act 2012 requires biological samples taken for police investigations to be destroyed after six months. That was intended to cover samples taken so that they could be analysed to produce a DNA profile, which is a record on the DNA database representing a very small part of a person’s DNA.

As the DNA profile is sufficient to match a person against DNA found at crime scenes, the rationale was that the samples should be destroyed to remove the possibility of further analysis being carried out in the future and that that should apply regardless of whether the person was convicted. The previous Administration adopted exactly the same approach in the Crime and Security Act 2010, which also provided for the destruction of samples within six months.

In preparation for the implementation of the Protection of Freedoms Act, 7.7 million samples taken to produce DNA profiles have now been destroyed. However, implementation of the provision has shown that the wording of the Act can cause practical difficulties in some cases. It requires biological samples of all types to  be destroyed, including blood, semen, urine, saliva, hair and skin swabs. That affects not only samples used for adding profiles to the DNA database, but those used for purposes such as testing for drug and alcohol use, violent and sexual contact between suspects and victims, and exposure to chemicals such as those associated with explosives, firearms or drug production.

That means that a sample that becomes relevant to disputed issues in court proceedings may have been destroyed by the time those proceedings take place. For example, a defendant may seek to argue that his state of mind was affected at the time of the offence because he had taken a prescription drug. If the samples have already been destroyed, it would be very difficult for the prosecution to rebut that argument.

Other types of evidence, such as DNA profiles and fingerprints, are protected by the Criminal Procedure and Investigations Act 1996 as long as they are needed for investigation and prosecution. The new clause extends that protection to samples, whether taken under the Police and Criminal Evidence Act 1984 or the Terrorism Act 2000. It provides safeguards against wider use by requiring that samples protected under this measure are destroyed as soon as the CPIA no longer applies to them, and requiring that they be used only in relation to the particular offence for which disclosure as part of court proceedings might apply. The two consequential amendments to clause 140 simply provide for the territorial extent of the new clause.

The changes made by the new clause are a sensible step to ensure that the prosecution of offences is not undermined by the premature destruction of samples. On that basis, I commend the measures to the Committee.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs) 9:15 am, 16th July 2013

We could have a very long debate about DNA, because there are real differences between the Government and the Opposition on that issue. One of our big areas of concern, both before and after the election, was the shift in responsibility for usage and retention of DNA samples. However, you will be pleased to hear, Mr Dobbin, that I will not start that debate today—I sense the disappointment in the room. We have already had that debate, and I know I am on the right side even though the votes went the other way. We will return to that broader issue at some other point.

The new clause is a sensible proposal to tighten up legislation, and the Opposition will support it. I will therefore not detain the Committee further.

Question put and agreed to.

New clause 10 accordingly read a Second time, and added to the Bill.