Protection of Freedoms Bill

Debate between Alan Johnson and Baroness Primarolo

Monday 10th October 2011 Commons Chamber

[Alan Johnson (Kingston upon Hull West and Hessle) (Lab)]

I beg to move amendment 89, page 3, line 43, leave out from ‘offence’ to end of line 44.

[Madam Deputy Speaker (Dawn Primarolo)]

With this it will be convenient to discuss the following:

Government amendment 1.

Amendment 91, page 4, line 2, leave out ‘3’ and insert ‘6’.

Amendment 92, page 4, line 4, leave out ‘3’ and insert ‘6’.

Government amendments 2 to 5.

Amendment 94, in clause 4, page 5, line 32, at end insert

‘Otherwise the retention period is 6 years.’.

Amendment 83, page 5, line 34, at end add—

‘(4) If the person was under the age of 18 at the time of the offence the retention period is three years.’.

Government amendment 6.

Amendment 84, in clause 9,page 8, line 5, after ‘retained’, insert

‘for an initial period of six years, then’.

Government amendment 7.

Amendment 108, in clause 20, page 13, line 26, leave out from ‘must’ to end of line 28 and insert—

‘place a report in both Houses, after consultation with the Association of Chief Police Officers (ACPO), on the suitability of a Commissioner for the Retention and Use of Biometric Material (referred to in this section and sections 21 and 22 as “the Commissioner”.

‘(1A) Subject to the approval of a report laid under subsection (1) by resolution of both Houses of Parliament, the Secretary of State may appoint a Commissioner to be known as the Commissioner for the Retention and Use of Biometric Material.’.

Government amendments 8 to 15.

Amendment 109, in clause 25, page 16, line 27, at end insert—

‘(1A) The provisions of this Chapter may not come into force until the conditions of 20(1) have been met.’.

Amendment 85,  page 16, line 33, leave out ‘3’ and insert ‘6’.

Amendment 86,  page 16, line 39, leave out ‘3’ and insert ‘6’.

Amendment 87, page 17, line 1, leave out ‘3’ and insert ‘6’.

Amendment 88, page 17, line 4, after ‘derived’, insert ‘6 years or more’.

Amendment 82,  page 17, line 9, at end insert—

‘(d) in the case of material taken or derived less than six years before the commencement day from a person who—

(i) was arrested for, or charged with, the offence and

(ii) has not been convicted of the offence,

the destruction of the material at the end of the period of six years beginning with the day on which the material was taken or derived.’

Government amendments 33 to 38, 65, 66, 72 and 73.

[Alan Johnson]

There are several amendments in this group that seek to maintain the current position on DNA retention, as agreed by this House in April 2010 under the Crime and Security Act 2010. We have debated this issue many times, so Members will know that the argument centres around for how long the DNA of those arrested or charged but not convicted should remain on the database. The Government say the period should be three years for those arrested but not convicted of a serious offence—the so-called Scottish model—whereas we say it should be six years if arrested but not convicted of any recordable offence, as agreed by this House 18 months ago.

I realise that I am susceptible to the charge of being an old, sad former Home Secretary revisiting the scene of previous debates, and I may well be guilty of that, but let me explain why I, and colleagues on both sides of the House, have proposed these amendments. When I was Home Secretary—and the newly appointed shadow Minister, my right hon. Friend the Member for Delyn (Mr Hanson), was the police Minister—we took a lot of time and trouble over this topic. We looked at all the available research before coming down in favour of a period of six years. I hope I can convince the House that we made the right decision in 2010 and that moving to the so-called Scottish model would be a terrible and potentially disastrous mistake.

This is a cross-party amendment. It is sponsored by the hon. Members for Kettering (Mr Hollobone) and for Bury North (Mr Nuttall) as well as the five supporters whose names appear, along with mine, on the amendment paper: my right hon. Friends the Members for Salford and Eccles (Hazel Blears) and for Delyn, my hon. Friend the Member for Mitcham and Morden (Siobhain McDonagh), and the hon. Members for Brigg and Goole (Andrew Percy) and for Shipley (Philip Davies).

That DNA is the most important breakthrough in modern policing, and a science in which Britain leads the world, is incontestable. It provides the police with 3,300 matches to crime scenes each month, which amount to almost 40,000 a year. It has led to forensics—the use of DNA and fingerprints—being the critical information in securing a quarter of primary detections in routine crimes such as burglary and car crime in England and Wales, as against only 6% in the mid-1990s. It has made a contribution to the huge decline in those crimes. It has also transformed the ability to detect the perpetrators of the most serious crimes: murder, manslaughter and rape. There were 832 positive matches in 2009. The European Court of Human Rights has accepted that the use of DNA evidence can make a valuable contribution to the prevention and detection of crime and the protection of the crucial rights to life, liberty and security. It said that any mechanism for the retention of biometric material must be justified as both necessary and proportionate to a legitimate aim.

There is no question but that those convicted of a recordable offence should have their DNA stored indefinitely; that is not a point between us in this House. It is necessary but insufficient, as the Government apparently accept which is why they seek to go further. The European Court ruled that indiscriminately keeping the DNA of those arrested but not convicted of a recordable offence was not proportionate. It breached the famous article 8 on the right to privacy and family life, which after last week’s shenanigans may well be known from now on as “the cat’s clause”. [Interruption.] That sounded good in front of the bathroom mirror this morning! The issue therefore is for how long the DNA of those arrested but not charged or convicted should be retained, consistent with the principle of necessity and proportionality. The Government say three years, in accordance with the so-called Scottish model; we say six years, in accordance with all the evidence.

It is worth mentioning that the Crime and Security Act 2010 broke from the Scottish model in not retaining the physical material from which the DNA is derived. That must be destroyed within six months after it has been translated into a series of numbers known as a DNA profile. This meets an important criticism by the European Court and addresses the concerns of those who are rightly worried about the purposes to which such genomes could be put. The Scottish model retains the DNA of those arrested but not convicted of serious offences only for three years, with a provision for a two-year extension that is so complex, bureaucratic and time-consuming that it has never been used or even applied for.

The three-year retention period used in Scotland is not based on any evidence or analysis that I can find. The figure appears to have been plucked from the air. The Minister will tell us that a review of the Scottish system by a Professor Fraser a year after it was introduced proves that the system works, but that review did not assess whether a longer retention period would be beneficial or whether retention for three years was detrimental to solving serious crimes. The retention of the DNA of those arrested but not convicted can be justified as necessary and proportionate under the terms of the European Court’s decision if their risk of being re-arrested is higher than that of the general population. Analysis conducted by the Home Office suggests that that is indeed the case and that the risk falls to that of the level of the rest of the population gradually over a period of six years. It dips after three years, but it leaves a significant tail that is not eradicated until after six years.

This analysis also established that the propensity to be re-arrested is not determined at all by the nature of the original alleged offence; in other words, there is no case for maintaining the DNA of those arrested but not convicted of serious offences. For instance, Mark Dixie, the murderer of Sally Anne Bowman, had his DNA taken because he was involved in a pub brawl—a minor offence. The provisions in the 2010 Act which we seek to retain are therefore based on evidence, unlike the Scottish model which is based on no evidence whatever.

The coalition partners decided to adopt the Scottish model when they were in opposition, since when they have struggled to make the facts fit their policy, rather than their policy fit the facts. Therefore, every so often they ask for a new hazard curve—the research that was done when I was Home Secretary—the latest of which they have published and circulated, claiming, tendentiously, that it is broadly supportive of the approach taken by the Government. That is so in the way that health professionals broadly support the Government’s NHS reforms. This supposed new research comes up with an absolute minimum of three years, a wide variance and a health warning about the size of the data sample.

I have also today seen a piece of Home Office research that the Department sought to bury, and which was painfully extracted from it through freedom of information requests. My right hon. Friend the Member for Delyn will say more about this, but it shows that 23,000 people every year who would be on the DNA database under our proposals but not under the Bill as it currently stands will go on to commit further offences. That illustrates the scale of the crime and security problems that will be created if the House defeats this amendment and supports the Government policy.