Protection of Freedoms Bill

Lord Goldsmith Excerpts

Tuesday 29th November 2011 Lords Chamber

[Baroness Royall of Blaisdon]

My Lords, I would like to be able to answer the noble Lord but I regret that I cannot. I will come back to him in writing.

The statistics and the lack of evidence for the Government’s proposals mean that Amendment 1 is essential.

I turn to Amendments 7 and 8, in my name and those of my noble friends Lord Tunnicliffe and Lord Rosser. Persons arrested for or charged with a qualifying serious offence should have their DNA and fingerprints stored for six years. This replicates the provisions of the Crime and Security Act 2010, which was passed by Parliament but never brought into force. The six-year limit is based on Home Office analysis and reflects a proportionate response to the ECHR decision. As I mentioned earlier, the three-year figure comes from the Scottish model, which was based on no analysis of risk to public security. That is why Amendments 2 and 3 are essential. They will ensure a six-year rather than a three-year limit for the retention of DNA and fingerprints. I beg to move.

[Lord Goldsmith]

My Lords, I strongly support the amendment moved by my noble friend. As noble Lords will know, I have some experience in dealing with crime from the years when I held office in government. Two things became very clear during that period. The first was the enormous value of DNA in solving serious crime. Time and time again, cases came before me involving DNA, including a number of cases that came from the so-called cold cases review, which involved investigating crimes from a number of years before. There were some remarkable discoveries—for example, the so-called Sheffield shoe rapist who was discovered, some 20 years after he had committed, I think, four rapes, two attempted rapes and probably many more, as a result of a match to DNA from his sister who had been arrested, I think, for a driving offence. That would never have come to light but for the cold cases review and if that DNA had not been retained. It is not simply a case of bringing those who deserve it to justice; it is also a question of protecting others from that person. Those who have been convicted, particularly of such serious offences, as a result of DNA are at least off the streets and therefore less likely to cause harm to women, in particular. That is the second point I want to underline.

My noble friend rightly made the point that there is no more important series of cases for DNA evidence than serious sexual crimes, rape and other offences against women. That is the second thing that I discovered in my time. These are difficult cases to deal with and to convict on, but they cause huge anxiety, shame and sorrow. The great tragedy is when they do not result in a satisfactory result. I am therefore extremely worried about the Government’s proposal to remove without a proper evidential base evidence that could be used in just such cases. In the light of what my noble friend said, this change should not take place until and unless there is clear, convincing evidence that it is not going to put more people at risk or leave more criminals on the streets. For that reason, I strongly support this amendment and the other two amendments in this group.

[Lord Campbell-Savours]

I want briefly to intervene because I feel quite strongly about this subject. I am not a lawyer, but I think I have my finger on the pulse of the people who were my constituents in Workington. The criminal justice system, even under my own Government, was often felt to be completely out of control in the sense that, as far as many people on the street are concerned, the legal system simply does not work in the United Kingdom. There is a total disconnect between the people who stand behind this initiative and the wider public in the United Kingdom. If you were to do an honest poll of people on the streets of Britain, not a poll simply of libertarian opinion, and ask them their view of DNA and its retention, particularly in the context of their lack of confidence in the criminal justice system, you would find overwhelming support for the retention of this material.

The Government have got the balance wrong. They have taken the libertarian position too far and, in the event that this becomes law, they are going to end up with a number of cases surfacing in the national media, particularly in the tabloids, that reveal that people had committed offences and had not been tracked down simply because DNA had not been retained as a result of this legislation. I object very strongly because I believe that the Government are making a major mistake.

From a Conservative position, the Government would do well to look among their own supporters. Among many of the Conservatives who I know and mix with, there is overwhelming support for DNA retention. Many Conservative supporters simply do not understand why the Government are going down this route. I do not know whether they are being driven by the libertarian agenda that is being pushed by the Liberal Democrats in the coalition—they may well be—but if they are, they should take stock of what they are doing because they are making a mistake and they are upsetting their own supporters, who feel as strongly as I do. The Minister will mix with people in the county of Cumbria, where he lives. If he discusses this with his colleagues in the county of Cumbria, he will find the same view: that we should retain this material as it is a way of safeguarding the future of the criminal justice system and making it more operationally effective.

Finally, this is only one of a number of initiatives that the Government are taking in this Bill. They are introducing what some believe to be a more liberal regime in the use of cameras and CCTV. Again, the public support those cameras. I understand that the Government were involved in a consultation exercise earlier this year. I have not seen the result of that consultation exercise, but what interests me is who was consulted. Was it the people on the street, who have strong attitudes on these matters and who invariably fail to respond to consultations, or was it again this libertarian opinion, which worries me when it manages to secure changes in legislation in the form that we see today?

Let me just say where I stand on DNA. I believe that there should be a national DNA bank, established initially on a voluntary basis, whereby we no longer stigmatise the retention of DNA. I believe that millions of people would provide their DNA if only to prove that that is the route we should be going down. Only at the end of a process of introducing voluntary DNA will we be prepared at some stage in the future to take the necessary initiative to store all people’s DNA compulsorily—but let us start with a voluntary basis. There might be some entrepreneur who is prepared to fund that kind of approach to the retention of DNA, but it is only by taking away the stigma that we release ourselves from the arguments that have led to this legislative change that we are confronted with today.

--- Later in debate ---

[Lord Goldsmith]

Perhaps I may make some observations on the amendment that are very much in the nature of trying to understand what it is intended to do, and I am sorry if I have misunderstood it.

As I read the Bill, there are two circumstances in which material that has been taken in relation to a person who has been detained under Schedule 7 may be retained. In one case, it is retained indefinitely in circumstances where that person has previously been convicted of a recordable offence, other than a single exempt conviction, or is so convicted before the end of a further period. Therefore, if a person has been convicted previously of a recordable offence, DNA or material taken under Schedule 7 may be retained indefinitely. There is a second circumstance in which the material can be retained for six months, which is where the person has no previous convictions or only a single exempt conviction.

I regret that I do not understand at the moment what the noble Baroness’s amendment would do. It would add the words,

“and subsequently arrested for an offence directly related to the reasons for detention”.

For example, if this was the case as regards a person who had previously been convicted of a recordable offence, one would somehow have to wait to see whether that person was subsequently arrested—and I do not know within what period that would apply—for an offence that would also have to qualify as being directly related to the reasons for detention. Only in those circumstances could the material be retained. I do not understand how anyone will know at any point whether that person is going to be subsequently arrested. Nor do I understand why they should be,

“arrested for an offence directly related to the reasons for detention”.

I have to some extent demonstrated my colours in relation to DNA but, at least in the case of a person who has previously been convicted of a recordable offence, I see no reason at all why the material should not be retained. I do not see why one should add a condition whereby somehow you are going to be able to discover subsequently that a person would be arrested for an offence and, furthermore, that that offence is directly related to the reasons for the original detention—whatever, with respect, that means.

At the moment, I do not understand the amendment and, for those reasons, I could not support it.

[Lord Henley]

My Lords, I do not know whether I can bring light to the noble and learned Lord, Lord Goldsmith, but I will see what I can manage. I will speak to my noble friend’s amendments and, because they have been grouped together, in due course speak to the government amendments in my name—Amendments 24 to 37.

My noble friend helpfully set out her views on the provisions in Schedule 1 in respect of the retention of material taken as a result of a Schedule 7 examination. Schedule 7 to the Terrorism Act 2000 is a national security border power that enables examining officers to stop, search and question a person at a port or in a border area to determine whether they are someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism, without reasonable suspicion that they are so concerned. Given that most major terrorist plots have involved individuals travelling across international borders to plan and prepare their attacks, it is only right that the police are given appropriate powers to examine persons, including through the taking and retention of biometric material—in this context, in order to identify and disrupt such individuals.

Imposing a requirement to arrest an individual for terrorism offences as a condition for retention and use of material taken under these powers, would fundamentally undermine their use as a means to identify those involved in terrorist activity and to gather intelligence. Such intelligence can provide vital contributions towards wider intelligence-based investigations in respect of national security. Terrorism investigations are, by their very nature, long and complex, and at the end of a Schedule 7 examination it may not be immediately apparent that an arrest is appropriate.

Attaching a requirement for arrest would furthermore offer no additional safeguards. The Bill already provides safeguards for material taken from a person detained under Schedule 7. There is a defined retention period of six months, which is considerably shorter than the three years’ retention period that applies where a person has been arrested for a terrorist offence under Section 41 of the 2000 Act. The new biometric commissioner will also have a general oversight role in respect of the retention and use of biometric material taken under Schedule 7.

I hope that that helps partially to explain matters to the noble and learned Lord and reassures my noble friend that the provisions in the Bill are transparent and will provide strong protection against unnecessary retention of material taken from individuals detained under Schedule 7 to the 2000 Act.

Turning now to the governance arrangements for the DNA databases, the subject of Amendment 41, I think it is important to note that all DNA material retained by the police will as a result of the Bill be subject to comprehensive regulation, irrespective of the databases on which it is held. Indeed, although the overwhelming majority of DNA information retained by the police will continue to be held on the National DNA Database, where this is not the case, such material will be subject to the requirements of the regimes set out in the Bill, and covered by all the relevant safeguards.

Regarding the counterterrorism database, only DNA profiles obtained by the police in relation to national security—including counterterrorism investigations—will be held on the database. It has already, in effect, been placed on a statutory footing by virtue of the Counter-Terrorism Act 2008, which provides for all material not otherwise subject to statutory restriction, and is already overseen by the National DNA Strategy Board in respect of compliance with agreed national standards and protocols.

The Forensic Science Regulator is also closely involved in ensuring that DNA analysis and validation meet acceptable standards, as he is with the National DNA Database. In addition, we should not forget the new biometrics commissioner’s general oversight function under Clause 20. If the commissioner had concerns about the governance arrangements, I am confident that he or she would not be reticent in bringing such concerns to the attention of the Home Secretary.

Perhaps I may briefly address the government amendments, starting with Amendments 24 to 28. These address three separate matters. First, Amendments 24 to 28 to Part 3 of Schedule 1 are intended to clarify the application and scope of the provisions for the retention and destruction of biometric material to which Section 18 of the Counter-Terrorism Act 2008 applies. Section 18 mostly covers biometric material acquired covertly and material supplied by overseas authorities.

The Government are clear that material obtained under Section 18 of the 2008 Act should be subject to a clear and robust regime for the destruction and retention of such material. As such, we have proposed limiting retention to three years—on the basis of a national security determination extendable for renewable two-year periods—after which it must be destroyed.

However, the proposed destruction requirements in Section 18 are not expressly limited to material obtained from known persons. We are concerned that this will lead to anonymous material and, in particular, material taken from crime scenes, having to be destroyed at the three-year point. Indeed, as currently drafted the Bill requires just that. This unintended consequence would result in the destruction of material before the police were able to identify the individual to whom it belonged, complete an investigation of an offence—potentially compromising prosecutions in the process—or make a case for its retention on national security grounds. For these reasons, the amendments are designed to prevent the automatic and premature destruction after three years of anonymous and unidentified crime scene material obtained by the police.

We do not consider that anonymous material or material taken from a crime scene—where it is also anonymous—should be subject to the same destruction requirements as material obtained from known individuals. Rather, it should still be possible for the police and other law enforcement authorities to retain such material indefinitely. However, we recognise that not all crime scene material will be anonymous in nature and as such want to make clear that where there is provision for indefinite retention of unidentified material, once identified, such material will be subject to the same retention and destruction requirements of material where the identity of its owner is known on acquisition.

Amendment 26 will exclude from Section 18 of the Counter-Terrorism Act material taken under the Terrorism Prevention and Investigation Measures Act 2011, as it will become shortly. This is consistent with the exclusion of other existing statutory regimes from the scope of Section 18 to avoid enacting overlapping and conflicting provisions. We consider that all these amendments enhance the provisions in Schedule 1 by making clear how they are intended to operate.

Amendment 29 would omit paragraphs 6(4) and 7 from Schedule 1 to the Bill. Those paragraphs, which contain provisions in respect of the retention and use of biometric material in Scotland for national security purposes have, in effect, been made redundant by the Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011, which itself gave effect to the changes that those provisions would have made. Simply put, the provisions are no longer needed and can therefore be removed from the Bill. There are three consequential amendments to Clause 113 and Schedule 10 which we will need to come back to later in the passage of the Bill.

Finally, Amendments 30 to 37 to Parts 7 and 8 of Schedule 1 extend the list of purposes to which material taken under the Police and Criminal Evidence (Northern Ireland) Order 1989 and held pursuant to a national security determination may be used. They further ensure that the order-making powers conferred on the Secretary of State to amend the Police and Criminal Evidence (Northern Ireland) Order applies in respect of provisions regarding a transferred matter where it is ancillary to an excepted or reserved matter.

Amendments 30 to 33 provide that the purposes for which material retained pursuant to a national security determination which was taken under the Police and Criminal Evidence (Northern Ireland) Order may be used are the same as for the rest of the UK. That is, that such material can be used for the prevention and detection of crime, the investigation of an offence or for identification purposes, in addition to that for national security and terrorist investigations.

Amendments 34 to 37 are technical amendments. They amend the Secretary of State’s order-making powers so that the Secretary of State is able to make provision in respect of transferred matters where such provision is ancillary to excepted or reserved matters.

I apologise for taking so much time on those government amendments, but I hope that my noble friend will be content with the explanation I have given of her Amendments 41 and 23. I hope that she will feel able to withdraw her amendment, and I will move mine in their proper place.