Protection of Freedoms Bill

Lord Harris of Haringey Excerpts

Tuesday 31st January 2012 Lords Chamber

[Lord Henley]

My understanding is that it would be unlawful and that therefore they would destroy what they had taken. I can give that assurance to the noble Earl.

[Lord Harris of Haringey]

To clarify further, presumably part of the difficulty here is that this is an inadvertent error by the police, because they have taken somebody under Section 136 to a place of safety which in this instance has turned out to be a cell in a police station. Is not the real problem here, and the reason why, presumably, custody officers have then made this mistake, that there is an inadequate supply of places of safety in more appropriate accommodation? That is a fundamental issue. If the Government were to address that, the chance of this arising would become far less.

[Lord Henley]

If I may say so, that is another question. I accept the fact that it might be better if there were other places that they could take the individual to, but the important point is that they have taken that person to that cell. They have then done something wrong by taking his or her DNA in whatever form. That would be unlawful—that is what I am trying to make clear—and I hope that the noble Lord will accept that point.

I turn now to the amendment in the name of the noble Lord, Lord Campbell-Savours, and welcome him back. I had not actually noticed that he was absent from the Committee stage of the Bill, because I seem to remember that we dealt with some of these things—but perhaps it is just a fantasy that I remember us addressing these matters. I certainly remember that we had considerable discussion on these matters.

I appreciate that the noble Lord feels that he has misdrafted his amendment and would like it to read “and only” instead of “or”. We are at Report stage, so it is possibly too late to fix these things, but I suspect that it is to some extent a probing amendment. If the noble Lord remembers, we had some quite spirited discussion in Committee of what the appropriate period should be, and I dare say that we will have another one when we discuss Amendment 4, which the noble Baroness, Lady Royall, will be moving. Amendment 3 does not define that period. If one assumes that the appropriate period would be the relevant period set out in the various provisions of the Bill, I would say to the noble Lord that subsection (3) of new Section 63D of PACE, as inserted by Clause 1, already does this. Subsection (3) says that in,

“any other case,”—

in other words, except in the circumstances already provided for in subsection (2), which are where the arrest or the taking of biometrics were unlawful,

“section 63D material must be destroyed unless it is retained under any power conferred by sections 63E to 630”.

We have a general presumption that material must be destroyed unless the Bill explicitly permits its retention. I will come back to retention on that later amendment from the noble Baroness and later amendments from the noble Lord. But it must be destroyed unless the Bill explicitly permits its retention, either for a fixed period, such as for a person charged with a qualifying offence but not convicted, or for an indefinite period for those with convictions.

I hope that with that explanation my noble friend will feel able to withdraw her amendment and the noble Lord, Lord Campbell-Savours, will not press his amendment. I appreciate that we will discuss these matters in further detail on some later amendments.

--- Later in debate ---

[Lord Dear]

My Lords, I have a good deal of sympathy with the view that the noble Lord, Lord Hughes of Woodside, has just expressed; it is a view that one hears frequently when talking to, as it were, the man on the Clapham omnibus. I rise neither to support nor to oppose the amendment at this stage. I have not checked with ACPO to see whether it would prefer a lift from three years to six, but in a straw poll it would probably agree that six years would be a help. However, it is incumbent on me to point out that ACPO has already expressed the view that it is comfortable with three years, following the Scottish model, and the ability to go further.

I wait to hear what the Minister says, but the nub of this is the question of balance and proportionality. It is necessary to follow to a large extent the judgment in Marper, which we all remember and which started this debate in the first place. What the noble Lord, Lord Lester of Herne Hill, has said is very pertinent; I drift very much towards his point of view. Still, I would like to hear what the Minister says, particularly on the question of balance, proportionality and how that affects the Marper judgment.

[Lord Harris of Haringey]

My Lords, on the same point about the balance of proportionality, I am assuming that this clause is based on a detailed and careful analysis of the evidence, so perhaps the Minister could share with the House the numbers of people who are affected in terms of their DNA samples being removed and destroyed. Over the past few years, how many individuals whose DNA would now have been removed from the database would not have been brought before the court for offences that have either subsequently come to light or where their DNA has subsequently been matched? It is incumbent on the department to place this evidence before us. That would deal with the concerns raised by the Joint Committee on Human Rights.

If in fact there is no evidence and a judgment has simply been made that three years is better than for ever, but there is no reason why it should be three years instead of five, six, seven or two, that is not a sound basis for making an extremely important decision, not least for the sanity of the victims of serious crime where the perpetrator might otherwise be convicted. It is a very unwise position for this House to be making that judgment without an understanding of the evidence.

--- Later in debate ---

[Lord Henley]

My Lords, that provision will be available here; it is available there. That is the important point. The police will have the ability to apply to the courts. Those arrested for a qualifying offence but not charged, where the victim is vulnerable, will also have their DNA held for three years, subject to the approval of the new independent commissioner. The noble Lord may not like that but that is the case.

[Lord Harris of Haringey]

The Minister said that an application, which has not, or may not have been exercised in Scotland, could be made when the police consider it necessary. Could he define what he thinks would be necessary under such circumstances?