Protection of Freedoms Bill

Baroness Doocey Excerpts

Tuesday 29th November 2011 Lords Chamber

Moved by

[Baroness Doocey]

23: Schedule 1, page 102, line 23, at end insert “and subsequently arrested for an offence directly related to the reasons for detention”

[Baroness Doocey]

My Lords, in moving Amendment 23, I shall speak also to Amendment 41. Both amendments deal with the collection of DNA under the Terrorism Act 2000 and the governance surrounding the storage of that DNA. I declare an interest as a member of the Metropolitan Police Authority.

Under Schedule 7 to the Terrorism Act, the police have considerable power and may act “whether or not” they have “grounds for suspecting”. They may also, under Schedule 7, take DNA and fingerprint samples from suspects, although the proportion of cases where this occurs is rather small. However, there remains a need for clarity and transparency in relation to this biometric information, its storage, and the governance surrounding it.

The Bill limits to six months the retention of DNA profiles taken as a result of Schedule 7 examinations. This is a great improvement on indefinite retention, but it is still contentious to retain such profiles at all, bearing in mind the nature of the power under which they were first obtained. The six-month period is recognition of the time required to obtain a DNA profile and carry out the necessary checks to identify whether or not an individual poses a threat and then for a national security determination application to be made, which, if approved, would allow for a further two-year retention but on a renewable basis.

Therefore, in theory, a DNA sample obtained from an individual who has never been convicted of a crime can be retained by the police indefinitely. Amendment 23 would redress this balance by ensuring that whenever DNA is taken, the same governance rules apply, whereby the data are not retained if the person is subsequently not arrested.

Amendment 41 deals with the governance of all databases where DNA material is held—not just the DNA database. The Bill would strengthen the oversight and governance of the National DNA Database, but these rules should apply also in respect of all databases, including the counterterrorism DNA database. This would be in line with the findings of the 2011 Annual report of The Ethics Group: National DNA Database, which concluded:

“All databases containing DNA information including the counter terrorism database held by the police service should be subject to a robust statutory governance framework, appropriate systems and controls, and should be transparent and only be used for statutory purposes”.

This was accepted by the National DNA Database Strategy Board.

The Bill limits to six months the retention of DNA profiles taken as a result of Schedule 7, but there must be clarity in terms of where such profiles and the physical samples are retained. The National DNA Database retains all profiles obtained as a result of individuals being arrested for a recordable offence. However, if only certain DNA profiles obtained from a Schedule 7 examination, which are not recordable, are retained on the separate counterterrorism DNA database, we need clarity about where the remaining profiles are retained and, more importantly, who has access to them. We cannot have a system where DNA profiles from individuals not convicted of any crime are not stored and managed with the same safeguards as DNA obtained from an individual as a result of an arrest.

There are certain elements of governance that need to be observed for the counterterrorism DNA databases, including scientific standards, ethical oversight and meeting the Data Protection Act requirements. Amendment 41 would ensure that suitable governance arrangements are in place for all DNA samples and profiles that are retained by the police. I beg to move.

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[Baroness Royall of Blaisdon]

My Lords, forgive my intervening at this stage. I am grateful to the Minister for his response to the amendments tabled by the noble Baroness, Lady Doocey. From what I heard of his response, I think that I would agree with him that her amendments should not be pressed, but I imagine that they are probing amendments.

As I mentioned earlier this afternoon, I intend to bring forward amendments on Report relating both to a period during which evidence can be collected before the Government’s proposals were introduced and to the period for which DNA samples and fingerprints could be retained—for six years rather than three years. If my amendments are accepted, a consequential amendment will be required to subsection (6) proposed in government Amendment 28, but that is for a later stage. For the moment, I am content to accept the noble Lord’s amendments.

[Baroness Doocey]

I thank my noble friend for the clear way in which he addressed my concerns. I say to the noble and learned Lord, Lord Goldsmith, that as soon as he got to his feet, I thought to myself, “I hope I will never get to court and meet someone like him”, because I think I would just throw my hands up in horror and plead guilty, regardless of how innocent I was. I beg leave to withdraw my amendment.

Amendment 23 withdrawn.

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Moved by

[Baroness Doocey]

39: Clause 21, page 16, line 17, at end insert—
“( ) The Commissioner must make a report to the Secretary of State about the impact of the retention periods for fingerprints and DNA profiles on the police service, in particular, the estimated cost of processing samples on an individual basis.
( ) Such a report must be made within six months of this section coming into force.”

[Baroness Doocey]

My Lords, the Bill will place a large administrative and financial burden on all police forces. I believe that we need to monitor the impact of this, particularly in the current climate, when police budgets are under threat and facing severe cuts.

Each DNA profile and sample will need to be processed individually to ensure that they are deleted within the correct time parameters. Furthermore, this process must take into account any subsequent reoffending by the individual, as well as an application for extended retention.

The Metropolitan Police estimates that implementing the Bill will entail a one-off cost of £2.5 million, with ongoing costs of nearly half a million pounds a year. That is a huge sum of money when you consider how tight budgets are going to be, and it could pay for 10 police officers per year. Amendment 39 would ensure that the impact on the police service of the retention periods for fingerprints and DNA profiles and, in particular, the estimated costs of processing samples on an individual basis were reported back to Parliament.

An operational risk is also inherent in the complexity of the retention regime. While the Bill will in theory put in place mechanisms to ensure that DNA data are deleted at the right time, no system is perfect. If, as could well occur with the volumes involved, the deletion process were out of sync and not carried out at the appropriate time, DNA profiles which should have been deleted could remain on the database. If these profiles were then to be matched with the DNA from a crime scene or the victim of a serious crime, this evidence could not be used, since by law the profile should not have been there in the first place as it should not have been retained.

That is what happened in two cases, both of which necessitated changes to the Police and Criminal Evidence Act. In both, a DNA match was obtained but their profiles should already have been deleted from the DNA database. In the first case, which concerned a rape, the judge refused to admit the evidence and the prosecution was abandoned, and in the other case a conviction for murder was quashed by the Court of Appeal on the grounds that the DNA evidence should not have been admitted. The House of Lords subsequently ruled that it should be left to the discretion of the trial judge as to whether evidence in these circumstances should be admitted. We would not want history to repeat itself.

We therefore need some form of reassurance that we will not be put in the invidious position of perhaps identifying another rapist or a murderer but not being able to use the DNA match in evidence. I beg to move.

[The Earl of Erroll]

Does a case collapse just because one bit of evidence is not quite right? I cannot believe that that one bit of evidence would be the only thing to bring about a conviction, in which case why on earth do we let people off? That seems quite dotty to me, as a lay man, unless the whole thing hinged on that one bit of evidence, in which case there could be some ambiguity about it.

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[Lord Henley]

Of course questions from my noble friend are not criticisms. I hope that I answer them as well as I am able to do.

[Baroness Doocey]

My Lords, I thank the Minister for his response, which goes some way to reassure me but I still have major concerns, particularly about the financial implications on the Met. I would like to address these and the other issues that I raised perhaps outside the Chamber. At this stage, I am happy to withdraw the amendment.

Amendment 39 withdrawn.