Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2012

Lord Palmer of Childs Hill Excerpts

Wednesday 5th December 2012 Lords Chamber

[Lord Goodlad]

My Lords, very briefly, I share the concerns of the noble and learned Lord, Lord Scott, about the order, which was commented on by the Select Committee on secondary legislation. This area of the law was thoroughly looked into some years ago by your Lordships’ Constitution Committee. The recommendations of the committee, contained in the second report of the 2008-09 Session entitled Surveillance: Citizens and the State, were broadly welcomed. Since that report Parliament has passed the Crime and Security Act 2010 and the Protection of Freedoms Act 2012. The provisions of the latter, dealing with the retention of DNA, have not yet been brought into effect, as the noble and learned Lord pointed out. However, the intentions of the Government and of Parliament have been made clear beyond peradventure.

It seems strange, therefore, that the Government have brought forward an order which has the effect of lengthening the period during which DNA may be retained by the police service, in circumstances which will no longer be lawful when orders under Part 1 of the Protection of Freedoms Act have been passed by Parliament. I hope, therefore, that the Minister will be able to give the House the assurances so precisely defined and advocated by the noble and learned Lord, Lord Scott.

[Lord Palmer of Childs Hill]

My Lords, I welcome the thrust of the Motion of Regret from the noble and learned Lord, Lord Scott. It comes from someone who contributed five times during what became the Protection of Freedoms Act, so it is not a flash in the pan. I also look forward to the Minister’s detailed reply for the Government. I should like to make a point that to some extent has already been made: the point of substance in the noble and learned Lord’s Motion is to respect the rights of the citizen when considering DNA or fingerprint records, and I emphasise that.

Prior to the Minister’s comment, which the noble and learned Lord apparently welcomes, I would like to say that the Government have taken a big step forward in enacting the Protection of Freedoms Act 2012, which sets in place a system of deletion and destruction consistent with the Marper judgment, which has been referred to, and human rights obligations. It is clear to anyone who looks at how DNA records are apparently kept, though, that absolute care must be taken when dealing with the material. It is both highly personal to the individual from whom it is taken and an important tool in the detection of crime.

Time is needed, of course, to put in place the policies and procedures to give accurate effect to the legislation passed by Parliament. The DNA evidence from those who have been responsible for crimes and those who have not needs to be sorted, and I gather that that evidence is voluminous and there is a time element. I am happy, and I hope that the noble and learned Lord will be too, that the Government will, we hope, indicate that they will have the long-term position resolved by mid-2013, as I understand it—perhaps even sooner; that the updated Armed Forces policing regulations will follow; and that both will be delivered according to the timetable. I welcome the clarification that this Motion will, I hope, produce.

[Lord Rosser]

My Lords, unlike the noble and learned Lord, Lord Scott of Foscote, I do not have the advantage of knowing what the Minister is going to say in reply. Indeed, I did not even expect that the noble Lord, Lord Taylor of Holbeach, would be the Minister replying; I was under the impression that this was a defence issue.

The order that we are covering came into force on 30 October this year, just one month ago. It amends the Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009 by providing that biometric data taken from someone being investigated for a service offence by service police can be retained for up to four years but no longer, unless within that period the person is convicted of the service offence. The Protection of Freedoms Act 2012 amended the Police and Criminal Evidence Act 1984 and introduced different rules and requirements for the retention of biometric data taken from arrested people. However, the Armed Forces are not covered by the Protection of Freedoms Act.

PACE also only applied to criminal investigations being conducted by the civilian police. However, under Section 113 of the 1984 Act the Secretary of State can by order apply certain provisions of the 1984 Act to investigations conducted by the service police. This was done in relation to the taking and retention of biometric data by way of the Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009, which has since been amended by the Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2011, and again by the 2012 order, which we are discussing now.

The 2011 order amended the 2009 order by increasing from two years to three the time limits that apply under that order to the retention of fingerprints, samples and impressions of footwear, and the 2012 order amends the 2009 order to allow material taken on or after 31 October 2009 to be retained for up to four years from the date on which it was taken, unless during that period the person is convicted. For material taken before 31 October 2009, the four-year period runs from that date.

It seems that the Government regard this 2012 order as a holding measure, as the intention apparently is to introduce a new order once the relevant provisions of the Protection of Freedoms Act 2012 have been brought into effect, and that that new order will broadly replicate for service personnel the 2012 Act’s provisions on retention of biometric data for civilians.

As the report from the Secondary Legislation Scrutiny Committee sets out, the changes that have been made and are still to be made to the Police and Criminal Evidence Act 1984 arose from a ruling in 2008 by the European Court of Human Rights that the relevant provisions in Part 5 of PACE were in breach of Article 8 of the European Convention on Human Rights. Those provisions in Part 5 allowed for the indefinite retention of fingerprints and DNA samples when there had been no conviction. As a result, Part 5 of the 1984 Act was amended by the provisions in Chapter 1 of Part 1 of the Protection of Freedoms Act 2012. However, those provisions in the 2012 Act are not expected to be commenced before mid-2013.

The purpose of the 2009 order, and subsequent amending orders in 2011 and now 2012, was, we are told by the Ministry of Defence, to make interim provision that would be compliant with the European Court of Human Rights ruling and allow the service police to retain material until Part 5 of PACE was amended. The Secondary Legislation Scrutiny Committee has commented that the practical effect of continuing to bring forward these orders, extending the period for which data can be held, is potentially to enable the material to be retained indefinitely. The order that we are now discussing means that the interim provisions will be in place for at least five years after the European court gave its judgment, and even longer if there is further delay in commencing the relevant provisions of the 2012 Act. The committee has also questioned whether successive statutory instruments with the practical effect of potentially allowing the indefinite retention of material taken by service police can be considered compliant with the European court’s judgment.

These are all points which deserve a considered response from the Minister. When he replies, perhaps he could also say why the relevant provisions of the Protection of Freedoms Act 2012 are not coming into force until at least the middle of next year. In Committee on the Protection of Freedoms Bill, the then Home Office Minister rejected our amendments providing for the retention of DNA and fingerprint profiles for six years, a longer period than that proposed by the Government and now incorporated in the terms of the Protection of Freedoms Act. We were told that there was a need for balance between public protection and individual freedoms, and that the Government considered that they had got the balance right and we had got it wrong. One would have thought that after that the Government would have made every effort to bring into effect the relevant provisions of the Protection of Freedoms Act as soon as possible, not to find themselves in a position where they are putting forward an order that specifically provides for the retention of biometric data for a longer time than the Government said struck the appropriate balance and rather nearer the time in years that we were arguing was appropriate.

Why was it not felt right to make provision within the Protection of Freedoms Act 2012 for matters relating to the investigation of service offences, at least in relation to the taking and retention of biometric data if not to other areas, to be brought within the terms of Part 5 of the Police and Criminal Evidence Act 1984? Presumably, the situation at the moment is that if a member of the Armed Forces is being investigated by the civilian police, the provisions of the 1984 Act apply to the investigation directly, but that if that same member of the Armed Forces is being investigated by the service police then the 2009 order—as amended by the 2011 and 2012 orders—applies. Is there any reason why it is essential that this distinction continues to apply in all instances?

We understand the reasons why the noble and learned Lord, Lord Scott of Foscote, has drawn this order to the attention of the House. Whether or not one believes that the Government’s decision on what specific action to take to meet the ruling of the European Court of Human Rights was appropriately balanced, it is still relevant to ask why it will be at least just over three years after taking office, and five years after the ruling, before the Government implement their decision on how to comply with a judgment with which they are not in disagreement.