Protection of Freedoms Bill

Baroness O'Neill of Bengarve Excerpts

Tuesday 29th November 2011 Lords Chamber

[Lord Soley]

Perhaps I may intervene briefly in support of this proposed new clause and to add to what my noble and learned friend Lord Goldsmith and my noble friend Lord Campbell-Savours have said. There is an additional argument. I agree entirely about the cold case and about a voluntary database. Indeed, in this House and prior to being in this House, I have said that we should have a voluntary database and that I should be delighted to be on it.

In a sense, my answer to the noble Lord, Lord Phillips, is that the difference between this and cameras is that it is much harder to come up with ways in which a DNA database could be misused by the authorities or anyone else. There is a deterrent factor. The final and only different point that I want to make to those that have already been made is that we should not rule out the deterrent effect of a DNA database. If a person on that database has raped or killed, or has carried out a violent attack, their DNA will be on that database and they know it.

Put yourself in the mind of the victim for a while and think of their rights. Victims have rights, which it is important to respect. As a deterrent factor, a database of DNA is very useful. It also enables the person who is not guilty of an offence—there have been a number of those recently—to be ruled out at a much earlier stage. The gentleman in Bristol who was wrongly accused initially of a murder in Bristol last year would have been ruled out much more quickly had the DNA database with his DNA on it been available. It is important both as a deterrent to further violent crime and as a protection for those who are wrongly accused. Quite simply, never ever rule out the rights of the victims, which we are very fond of doing at times. In the House of Lords where we do not deal with these things directly on a constituency basis, as my noble friend Lord Campbell-Savours said, you do not see the victim quite as starkly as you might. Those victims have rights, which we should defend and protect.

[Baroness O'Neill of Bengarve]

My Lords, I should like to ask the Minister whether the Government considered an alternative way of reducing recourse to the DNA database that would, on the one hand, have restricted the police from searching the database except where there was a proposal to press charges for serious violence or a serious sexual offence, and on the other hand where the person arrested requests that the database should be searched for the purposes of exoneration.

[Baroness Hamwee]

My Lords, I am so glad that I prompted my noble friend Lord Phillips to speak before me because he put into words much better than I could have done things that I was trying to articulate in my own mind. He mentioned the possibility of a 100 per cent compulsory database, and I too had been working towards that as a question. I cannot, however, follow the suggestion of a voluntary database. I am not a psychologist and I cannot put myself into the mindset of an offender, but it is difficult to believe that a voluntary database would be any sort of deterrent at all.

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[Baroness O'Neill of Bengarve]

My Lords, before we go further with the fantasy of newborn babies being separated from their mothers to be swabbed, let us remember that all newborn babies have a pinprick test of their heels in order to get a blood sample for a Guthrie test to be sure that they do not suffer from a serious metabolic disorder—namely, PKU—and that these samples are retained. So a database, in that sense, exists. We should discuss the uses of databases rather than what exists or how samples are taken.

[The Minister of State, Home Office (Lord Henley)]

My Lords, I start by picking up on the point made by my noble friend Lady Hamwee about Amendments 1, 7 and 8 not being consequential. I do not know what are the ultimate intentions of the noble Baroness, Lady Royall, but I agree with my noble friend that Amendments 7 and 8 are not consequential on Amendment 1. Certainly if the noble Baroness was minded to divide the House on Amendment 1, I would not accept the consequences of the House’s decision as being binding on Amendments 7 and 8. However, I shall leave that to the noble Baroness when she gets to them.

As the noble Baroness, Lady Royall, made clear, Amendment 1 would delay the implementation of these provisions by several months. I remind the House that the provisions in Part 1, Chapter 1 of the Bill represent the response of the Government to the European Court of Human Rights judgment in the S and Marper case, to which the noble Baroness referred, which is already three years old. If the previous Government had implemented compliance legislation when they had the chance in 2009-10, we would not now have more than 1 million innocent people recorded on the DNA and fingerprint databases and we would not have had to legislate again on this subject in this Bill.

The previous Government’s proposals, to which the noble Baroness referred and which she obviously still supports, received at that time virtually no support at all beyond her own Front Bench. She has obviously since then dragged up a bit more support from her Back Benches. Our proposals, which very much adopt the Scottish model, have been welcomed by a wide variety of organisations such as Liberty, Justice, the Law Society, the Criminal Bar Association and GeneWatch. They all gave evidence to the Public Bill Committee in another place and welcomed the Government’s general approach in this area. The Scottish model has also found favour with the Joint Committee on Human Rights and with the Constitution Committee, which have both referred to it.

The noble Baroness referred to evidence from the 2009 analysis, which was based on only three years of evidence, as I understand it, extrapolated to a point where it was essentially of, it could be argued, no real value. I refer the noble Baroness to our analysis, which was published in September and used five years of evidence, looking crucially at the likelihood of conviction. Therefore, further analysis is unnecessary.

However, I can tell my noble friend Lady Hamwee that there will be a post-implementation review, as there always is, and if we failed to include something in our impact assessment again I can only say that Homer nodded on this occasion and that we will make sure that that does not happen in future. I believe that further analysis is unnecessary and our proposals to retain unconvicted persons’ DNA for only three years are correct, and then only in respect of serious offences.

The analysis has been looked at by many independent experts, who have considered it closely. For example, as my honourable friend the Minister for Crime and Security, James Brokenshire, said in Committee in the other place,

“the Information Commissioner states that he ‘does not consider that the evidence presented supports a general period of anything like six years’”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 29/3/2011; col. 212.]

We have consistently supported the adoption of the protections of the Scottish model, and that was a central plank of our programme for government announced last May. We believe that our proposals represent an appropriate balance—and I was very grateful to the noble Lord, Lord Dear, for using the word balance—between the rights of those who have not been convicted by a court and the need to protect the public in some of the most difficult cases.

If the noble Baroness would like a little support from her own Back Benches, I can also refer her to the widely respected independent website Straight Statistics, whose board of directors is chaired by her noble friend Lord Lipsey. It has examined the research and reached the conclusion that:

“Despite the limitations of the analysis, acknowledged by its authors, it does suggest that the retention periods allowed under the 2001 and 2003 Acts were unduly long, as were those proposed in the 2010 Bill. The present bill, which is broadly similar to the law in Scotland, gets the balance more nearly right”.

The noble Baroness seemed to imply that we offered full support to the 2010 Bill. Again, I remind her, as I did in my intervention, that that Bill went through in the wash-up, very rapidly. Obviously, we offered it support in that six years was considered an improvement on the situation in the past, but we have not yet brought those provisions into effect and we have no intention of doing so. We think it better to bring forward these proposals, which are more likely to comply with the European Court of Human Rights judgment.

Again, I refer the noble Baroness to comments made by the then Policing Minister, when the noble Baroness’s party was in government, who said to the Public Bill Committee on the Crime and Security Bill that,

“we have obviously considered the judgment”—

that is, the judgment of the European Court of Human Rights—

“and how far we can push the boundary of the judgment in relation to our wish to have protection for the public”.—[Official Report, Commons, Crime and Security Bill Committee, 26/1/2010; col. 71.]

In our judgment, we should be seeking a balance, rather than riding roughshod over the rights of the million or more innocent people whose DNA profile is on the database despite them never having been convicted of any crime.

I turn to Amendments 7 and 8, which deal with the period for which we seek to retain the DNA and fingerprints of innocent people, which was discussed at some length in another place. These amendments would replace the Government’s provisions, which meet our coalition commitment to adopt the protections of the Scottish model, with the core of the last Government’s Crime and Security Act, which was rushed through in the run-up to the election. The party opposite persists in its approach to keep the DNA and fingerprints of innocent people for many years, no matter what those people have been accused of and no matter how little evidence was ever uncovered.

The noble Baroness referred to some 23,000 offenders. I was never quite sure where they had come from and whether they were alleged rapists, alleged something else or just people who had been arrested. Similarly, at the Labour Party conference in September, the shadow Home Secretary said that this Government will,

“take 17,000 suspected rapists off”

the DNA database, which,

“will make it even harder to bring rapists to justice”.

Of course, we all believe that increasing the conviction rate for rape and other serious offences is important. But are those on the Front Bench really saying that, in order to increase that conviction rate, we need to keep the details of thousands of innocent people on the DNA database because some of them in the future may go on to commit serious crimes?

I say to the noble Baroness that the conclusions of the report from the noble Baroness, Lady Stern, last year are far more important. She looked at the handling of rape by the police and by criminal justice and made some 23 recommendations in that area. While her terms of reference did not include the criminal law, her report recommended reassessing the essential elements of investigating rape cases, supporting victims to improve the handling of investigations and improving victim support, which would build stronger cases. Her recommendations on that occasion included ensuring that all police officers adopt ACPO’s Guidance on Investigating and Prosecuting Rape and adopting the protocol between the Crown Prosecution Service, the police and local authorities on exchange of information. I say to the Committee that these issues are more likely to be of assistance in increasing the conviction rate for rape than keeping 1 million—or whatever number we think it is—innocent people’s DNA on the national database.

In any event, the contention that every individual suspected of rape will instantly come off the database is just not true. Those charged with a qualifying offence, including rape, will have their DNA held for three years, and the police will be able to apply to the courts to extend that by a further two years. Those arrested for but not charged with a qualifying offence where the victim is vulnerable will also have their DNA held for three years, subject to the approval of the new independent commissioner. We have consistently taken the view, both during the passage of the Crime and Security Act and in advancing our proposals in this Bill, that the correct approach is to ensure that those convicted in the past of serious offences have their DNA added to the database, while those arrested for, but not convicted of, more minor offences should not have their biometrics held beyond the end of the investigation.

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[Lord Henley]

As I said, my Lords, there is a balance. What the noble Lord is advocating could also lead to a great many miscarriages of justice, as the noble Earl, Lord Erroll, pointed out. I appreciate that noble Lords opposite would like to bring in identity cards and a national database of the DNA of every person in the country. We do not go down that route; we feel that there should be an appropriate balance between what is kept and what is not. That is why I would reject the amendments.

[Baroness O'Neill of Bengarve]

I would like to return to the question asked by my noble friend Lord Campbell-Savours, which is a serious one. The information that is retained from a genetic profile for the purposes of the forensic database is not revealing information, such as susceptibility to disease or other genetic factors. It is a selection of the DNA evidence that used to be referred to as “junk DNA”, which is not known to code for any personally sensitive feature of persons. In that respect it is what in other aspects of privacy legislation is called an identifier. That suggests that in some ways it is less personal than a photograph of someone’s face.

[Lord Henley]

Sorry, but I do not accept that. I refer the noble Baroness to the comments made by the noble Lord, Lord Dear, that we are in the early days of knowing what DNA can and might achieve in the future. We are offering a very large amount of information to be stored in that DNA. I find that idea scary. Obviously some noble Lords, such as the noble Lord, Lord Campbell-Savours, do not; indeed, they positively welcome it. On this, there will have to be a philosophical divide between the noble Lord and myself.

For the reasons that I have given, I would certainly not support the amendment and I hope that the noble Baroness, Lady Royall, will feel able to withdraw it because I do not think it would command the support of the House.