Nearly two years ago I met with the producer (Ashley Jones) and researcher (Rebecca Lloyd-Evans) for the film Erasing David. At the time the project was introduced to me as:
The director, David, is going to attempt to disappear in the UK to test the boundaries of our police, surveillance and database state, while being traced by our countries top private investigator. This 'stunt' will be used as a way of exploring the larger issues surrounding privacy.
I expressed reservations about the disappearance 'stunt' part of the project. It felt like too many constraints were needed to make it work. I saw the film last week, and they have managed to pull it off successfully. The presentation as a detective story with both the points of view – of the chased (David Bond) and of the chasers (Cerberus Investigations) – makes for an interesting thriller. One change from the early brief is that the film tests aspects of private surveillance and the database state, but the police and their many databases are left out. The team from Cerberus slowly builds a vast profile of David Bond mainly through querying online information and using traditional sleuthing techniques such as checking the bins of David and his parents (for which they had prior consent). The experiences of being under surveillance and of realising how much data is held on us by commercial companies and public organisations has affected David Bond and his family beyond the film.
One particularly interesting aspect of the film is that it explores privacy issues that are not always easy to represent visually. Too often privacy is depicted in films solely with CCTV. A CCTV control room does feature in the film but only briefly. One instance where the documentary is particularly efficient is in communicating both the mass of data held on us and how one can figure out what is held on them. There is a scene where David goes through the piles of responses to subject access requests he had sent (using the Data Protection Act). The thickest response was from Amazon. Another response describes his mood when he contacted that organisation.
A number of privacy experts are interviewed in the film. Terri Dowty from Action on Rights for Children (ARCH) in addition to her interview has published, on the film's website, a Privacy guide for parents (pdf) detailing the information collected about children from the moment they are born. It's worth browsing through it even if you don't have kids to fully realise the extent of data collection going on. The website hosts more information such as education packs. If after seeing the film you decide to send a few subject access request, you may also find my simple guide to the Freedom of Information and Data Protection Acts useful.
The cinema première is on 2010-04-29 and there will be a live Q&A from the Brixton Ritzy that will get beamed to other simultaneous screenings. It will also be shown on More4 on 2010-05-04 at 10pm.
Note that if you plan to attend this free public debate on Thursday, I just learnt that you must register for it. Here are further details from the registration page:
Public Debate
‘Surveillance, Politics and Civil Society’Featuring Shami Chakrabarti, Directory of Liberty, Professor Clive Norris, University of Sheffield, Anna Minton, Writer/Journalist and David ‘Panda’ Mery, Writer/Activist
Chair: Professor Dr David Murakami Wood, Queen's University, Canada
Thursday 15th April 2010 at 7pm - 8:30pm, Oliver Thompson Lecture Theatre, City University London**
** Despite the event being free to members of the public, individuals MUST register in advance to guarantee a space in the auditorium.
Surveillance has become a topic of central importance for citizens, academics and governments alike as new space-time transcending monitoring technologies flood the market, pre-emptive, at-a-distance governance becomes the new logic of contemporary institutions, organisations seek to streamline and better administer their everyday practices, individuals perform and search for meaning within the spaces created by surveillance processes and the world becomes overlaid by a dense series of increasingly interconnected electronic flows. Several important questions are raised by these developments: how, for example, should relations between citizen and state, citizen and commerce and among citizens themselves be understood? In what ways might Human Rights principles be threatened by global flows and exchanges of data? How are concepts like personhood, identity, trust and privacy being transformed and shaped through surveillant practices? How might such developments be challenged and struggled over? What implications does national security policy have for individually situated notions of human security?
‘Surveillance, Politics and Civil Society’ seeks to address such questions by drawing on the views of a number of high profile, expert speakers and input from members of the audience. In particular, the session will explore what the role of civil society should and can be in regulating surveillance growth and expansion. Topics of debate will include: whether or not the state has become more authoritarian via its data collection practices and activities; what issues are raised by surveillance cultures embedding themselves into the everyday fabric of social life and social organisation; whether there are constitutional tools available to citizens to challenge surveillance protocols and processes, and a host of other related subject matter.
The event will be followed by a short wine reception, kindly sponsored by the Centre for Law, Justice and Journalism, City University London.
Details of other events this week, on hostile reconnaissance, police monitoring and privacy were posted earlier in Surveillance, hostile reconnaissance and legal observation.
Why is it that the topic of the National DNA Database (NDNAD) brings the worse crassness out of politicians? Two days ago, the Tories changed their mind on what they had long claimed to be a 'point of principle', allowing the Crime and Security Bill to become an Act with its DNA clauses intact. Today, Gordon Brown went a few notches up by misleading the public about DNA retention in the presence of the family of Sally Anne Bowman, at a campaign event in Stevenage. His arguments, that retaining the DNA profile of anyone arrested is essential to bring to justice criminals, including the killer of Sally Anne Bowman, has been debunked before, many times.
Retention of DNA profiles of innocents does not improve crime detection. What helps is retention of DNA profiles of crime scenes. More details in the post: Home Office gets DNA database funding priorities wrong. Tables of the detection rates for the past two years are in this post: Sorry Affairs Committee; it has remained over the years close to 0.36%.
The Home Office has still not published data supporting the claims by ministers of cases where DNA evidence has been essential. What has been published by the Home Office has times and again proven to be unreliable: the research by the Jill Dando Institute published with the Home Office consultation was from my reading of it an estimation based only on approximately 18 cases taken over three days at one year interval; more about this in the post: Sentenced to genetic probation (the research was later disavowed by the Institute's director). The research published alongside the summary of responses to the consultation is of little use as it 'does not provide evidence to inform the length of any general DNA retention period'; more details in the post: Home Office still wants your DNA profile, and your PNC record. When the Home Office listed five case studies in a letter to a Committee scrutinising the Crime and Security Bill, two of these five were in fact one and the same; more details in the post: Home Office: five equals four.
In the specific case of Sally Anne Bowman, Mark Dixie's DNA was profiled after a pub brawl and then matched to the DNA profile of the crime scene. There was no need for DNA retention of individual profiles in this case. This case and a few others are listed on Liberty's Busting the Myths. Gordon Brown also mentioned how Sally Anne Bowman's boyfriend was eventually exonerated thanks to the arrest of Mark Dixie. What he didn't say is that another innocent man, Kevin Reynolds, whose DNA profile was on the DNA database, was also arrested for this murder and had a second DNA sample taken when his first retained sample should have been enough to prevent his arrest. More details, published two years ago, in the post: DNA retention of unconvicted people.
The National DNA Database has more than five million records including those of close to one million innocents. What happens to their personal and intimate data should get more respect from politicians.
See also reactions from GeneWatch UK and Liberty, and the election fact checking of The Guardian and The Times.
Several events next week may be of interest to some readers of this blog. I will be delivering one of the keynotes on Thursday and will be attending the training workshop on Sunday. I look forward to meeting some of you.
Hostile Reconnaissance, Tuesday 2010-04-13 at 7pm, Friends Meeting House in Euston
Taking pictures, filming or even just drawing sketches of buildings is often construed as hostile reconnaissance and risks you being stopped and searched, or even arrested. (Even my innocent doodles were construed by the Police as being a hostile reconnaissance of a tube station.) This rally on Terror Laws, Civil Liberties & Press Freedom is organised by the London Photographers’ Branch:
Update: an audio recording of the debate as well as the video commissioned for the event are available online.
Surveillance, Politics and Civil Society, Thursday 2010-04-15 at 7pm, City University, Oliver Thompson Lecture Theatre
Surveillance, Politics and Civil Society is the title for a set of four public keynotes that will close the three day conference A Global Surveillance Society? The conference itself is registration-only, but these closing keynotes are part of a public event for which the organisers look forward to attract a healthy representation from the public for the Q&A discussion.
Update: Despite the event being free to members of the public, you must register in advance to guarantee a space in the auditorium. (The event will be followed by a short wine reception.)
My keynote will focus on the role of the citizen in confronting and challenging surveillance protocols. I intend to briefly explain the facts of my arrest, to give some context, and then spend most of the keynote talking about the instances of surveillance and data collection I faced and how to proceed to find out what the state has on you, how to get off the databases and other more general measures.
Erasing David, Friday 2010-04-16, 6.30pm, Free Word Centre, Farringdon
Erasing David is a film about another David, its director David Bond documenting the meaning of privacy and the loss of it. In his film David Bond decides to find out how much private companies and the government know about him by attempting to disappear. This screening will be introduced by Jo Glanville, the editor of Index on Censorship, who will also will lead a Q&A afterwards with the director and the private investigators who hunted him. Email to book your free place.
Police Monitoring and Legal Observation Training, Sunday 2010-04-18 from 10:30am to 4:30pm, Friends Meeting House in Euston
If you're worried about abuse of police powers at protests and in your community, but don't know what to do about it, this training should provide practical answers. It will give you skills to be a legal observer and monitor protests such as those that will happen on May Day in Central London. Sessions will include police powers, stop and search and surveillance, as well as workshops on legal observation and police monitoring.
The organiser Network for Police Monitoring is a new organisation made up of individuals involved in Campaign Against Criminalising Communities, Climate Camp Legal Team, Fit Watch, Legal Defence and Monitoring Group and Newham Monitoring Project. To have an idea of numbers, they would appreciate an email if you're planning to attend.
(Updated with details of the screening of Erasing David, with registration information for the debate 'Surveillance, Politics and Civil Society' and the recording of the hostile reconnaissance event.)
First published on 2010-04-07; last updated on 2010-04-25.
This afternoon in the Lords, Baroness Neville-Jones said 'Systematic reform is needed and a new approach focused on the guilty and on those who pose most risk. This is a fundamental root and branch change that we will not achieve today but which must be achieved by a new Government. For now, we take the view that it is important that we have in law acceptance of the proposition that the indefinite retention of innocent people’s DNA is unacceptable and illegal.'
Only three weeks ago on the closing panel at a conference on Stop and Search at Kings College, Crispin Blunt MP, Shadow Home Affairs Minister for Counter-Terrorism agreed to pledge that during the wash-up the Conservatives would not go further than the Scottish approach in relation to the DNA retention clauses in the Crime and Security Bill. This had been the position of the Conservatives until today. This afternoon, the Conservatives have accepted that this is no longer a 'real point of principle' for them as they have withdrawn their opposition to the bill. That means accepting the retention of the DNA profiles of innocents for six years (possibly more 'for reasons of national security').
Baroness Neville-Jones made another pledge: 'A Conservative Government if in office will do the following: they will legislate in the first Session to make sure that the DNA database includes permanent records only of people who have been convicted of an offence and, for a more limited period, those charged with sexual or violent offences. Secondly, we will focus efforts on collecting the DNA of all existing prisoners, those on probation, on licence or in prison or under the supervision of the criminal justice system, which the Government have failed to do. Thirdly, we will introduce new guidelines so that those wrongly accused of minor crimes and who have volunteered their sample have an automatic right to have their DNA removed from the database—one thing that this House most strongly objects to.'
Here's the full text of this short debate:
Amendment 2
Moved by Baroness Hamwee
2: Before Clause 14, insert the following new Clause—
“Retention, destruction and use of fingerprints and samples
For section 64 of the Police and Criminal Evidence Act 1984 (destruction of fingerprints and samples) there is substituted—
“64 Destruction of fingerprints and samples
(1) Unless provided otherwise in this section, where fingerprints, impressions of footwear or samples are taken from a person in connection with the investigation of an offence, the fingerprints, impressions of footwear or samples or any DNA profile may not be retained after they have fulfilled the purposes for which they were taken and shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom a body part came.
(2) In subsection (1) above—
(a) the reference to crime includes a reference to any conduct which—
(i) constitutes one or more criminal offence (whether under the law of a part of the United Kingdom or of a country or territory outside the United Kingdom); or
(ii) is, or corresponds to, any conduct which, if it took place in any one part of the United Kingdom, would constitute one or more criminal offences; and
(b) the references to an investigation and to a prosecution include references, respectively, to any investigation outside the United Kingdom of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside the United Kingdom.
(3) A DNA sample must be destroyed—
(a) as soon as a DNA profile has been derived from the sample, or
(b) if sooner, before the end of the period of six months beginning with the date on which the sample was taken.
(4) Any other sample to which this section applies must be destroyed before the end of the period of six months beginning with the date on which it was taken.
(5) Fingerprints, impressions of footwear and DNA profiles are not required to be destroyed if they were taken from a person convicted of a recordable offence.
(6) Where any fingerprint, impression of footwear or sample has been taken from a person who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall not be destroyed—
(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the “initial retention date”; or
(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken, such date being the “initial DNA retention date”; or
(c) if an application is made to the court under subsection (7), until such later date as may be provided by subsection (8) or (10) below.
Provided always that if the person is convicted of a recordable offence, subsection (5) shall apply.
(7) On application made by the responsible chief officer of police within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.
(8) An order under subsection (7) shall not specify a date more than two years later than—
(a) the initial retention date in relation to fingerprints or impressions of footwear, or
(b) the initial DNA retention date in the case of a DNA profile.
(9) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.
(10) A fingerprint, an impression of footwear or a DNA profile shall not be destroyed where—
(a) an application under subsection (7) above has been made but has not been determined;
(b) the period within which an appeal may be brought under subsection (9) above against a decision to refuse an application has not elapsed; or
(c) such an appeal has been brought but has not been withdrawn or finally determined.
(11) Where—
(a) the period within which an appeal referred to in subsection (9) has elapsed without such an appeal being brought; or
(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (8);
the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.
(12) Subject to subsection (13) below, where a person is entitled to the destruction of any fingerprint, impression of footwear or sample taken from him or DNA profile, neither the fingerprint, nor the impression of footwear, nor the sample, nor any information derived from the sample, nor any DNA profile shall be used in evidence against the person who is or would be entitled to the destruction of that fingerprint, impression of footwear or sample.
(13) Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention, in the case of a fingerprint or impression of footwear or the retention of any DNA profile—
(a) that fingerprint, impression or DNA profile as the case may be need not be destroyed;
(b) subsection (12) above shall not restrict its use; provided that—
(i) no DNA profile may be retained on any child under the age of 10 years; and
(ii) consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible following receipt of such written application.
(14) For the purposes of subsection (13), it shall be immaterial whether the consent is given at, before or after the time when the entitlement to the destruction of the fingerprint, impression of footwear or DNA profile arises.
(15) In this section—
“DNA profile” means any information derived from a DNA sample;
“DNA sample” means any material that has come from a human body and consists of or includes human cells;
“the responsible chief officer of police” means the chief officer of police for the police area—
(a) in which the samples, fingerprints or impressions of footwear were taken; or
(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken;
a “sexual offence” or “violent offence” shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.
(16) Nothing in this section affects any power conferred by paragraph 18(2) of Schedule 2 to the Immigration Act 1971 or section 20 of the Immigration and Asylum Act 1999 (c. 33) (disclosure of police information to the Secretary of State for use for immigration purposes).
(17) An order under this section must be made by statutory instrument.
(18) A statutory instrument containing an order under subsection (17) shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””
Baroness Hamwee: I shall speak also to the amendments grouped with this one and to our objections to Clauses 14 to 23 standing part.
With this amendment we come to the subject of DNA. In the first debate in which I spoke on the Home Affairs portfolio, I said that for Liberal Democrats, civil liberties are in our DNA. The Minister protested that they were in his too, and I do not for a moment doubt it. Unfortunately, although they might be in his DNA, they are not in this Bill.
The current law on DNA retention has been held by the Grand Chamber of the European Court of Human Rights to breach the European Convention on Human Rights. The “blanket and indiscriminate nature”, to use its words, of the law under which the police may retain indefinitely the DNA of the person arrested, whether or not convicted or even charged, failed to,
“strike a fair balance between the competing public and private interests”.
Following the case of S and Marper the Government have got to do something. However, what they are choosing to do in this Bill is only a marginal improvement. Those arrested but not charged or convicted will still have their DNA profile kept on the national DNA database for at least six years. In our view, the retention of the DNA profile of an innocent person for six years is six years too long.
I spoke at Second Reading of the importance of the presumption of innocence over guilt holding in our technologically advanced world; of arrest not being confused with conviction; and of the stigma attached to DNA retention. Evidence of that was debated not only in this House but in the Commons and given to the Home Affairs Select Committee, which has recently published a report on the matter.
The Home Office has relied on research which itself relies on the flawed premise that arrest is an indicator of the risk of offending—arrest not conviction—and it measures the risk of offending by the risk of rearrest. So it appears that two arrests are evidence of criminality. I could go on but I shall not do so because I am aware of how much business the House has to get through—I was going to say tonight but perhaps I should say before we start business again tomorrow.
Members of the Commons discussed the matter at length—they went on because they had more opportunity—and the Conservative Member Mr Brokenshire said that,
“the measure fails to take account of one of the fundamental principles of our liberal democracy: the presumption of innocence before the law unless one has been proven guilty. That principle should be an important guiding factor in framing the debate on retention, rather than being an inconvenient anomaly, as the Government appear to view it, given their historical approach to DNA retention”.—[Official Report, Commons, 8/3/10; col. 41.]
He said that when introducing an amendment that is exactly the same as the amendment we have tabled. I do not often flatter the Conservatives—either sincerely or insincerely—but they will recognise the imitation on this occasion.
I made it clear at Second Reading that the amendment is a compromise. The Scottish model, which this is—or, one might say, the model of my noble friend Lord Wallace of Tankerness—self-evidently is more proportionate than the provisions in the Bill. Innocent people are treated as innocent but there is an allowance for a three-year retention of data in the case of those suspected of sexual or violent offences. I have flattered the Conservatives and now I shall quote the noble Baroness, Lady Neville-Jones. At Second Reading—which seems a long while ago—she said:
“In the absence of a much better put together case than the assertions that we heard this afternoon, the Scottish system has shown that it is capable of delivering. It is the reason why we on these Benches prefer that model. We believe that the state should not retain the DNA profiles of those not convicted of an offence, except in circumstances where the charges relate to a crime of violence or of a sexual nature”.—[Official Report, 29/3/10; col. 1234.]
That is quite right.
In winding up for the Conservatives, the noble Lord, Lord Skelmersdale, said:
“Suffice it to note that both the Joint Committee on Human Rights and your Lordships’ Constitutional Committee doubt whether Clauses 14 to 21 really are Human-Rights-Act-proof”.—[Official Report, 29/3/10; col. 1268.]
He said that predicting what would happen with the Bill was above his pay grade, although it was obvious from his speech that he expected it not to see Royal Assent. I therefore trust that the noble Baroness will not now support the Government in view of her own and her party’s clear position previously. I await to hear her views with interest, but if she tells the House that this is a matter for review and if her party finds itself in a position to conduct a review it will do so, why not on the basis of the Scottish model rather than the regime which her party and she have condemned and which may well be—following high legal costs and much emotional agony—condemned by the European court? I beg to move.
The Earl of Onslow: My Lords, I am a member of the Joint Select Committee on Human Rights; I shall leave it the day after tomorrow, or whenever Parliament rises, because I have done my four years. The committee looked at this issue and did not think it would pass the Human Rights Act hurdle. When you take a horse racing, it is silly to put up an overscoped fence so that it falls flat on its face, and then put up another fence which is too big for it and, bang, down it comes again. That is an exact parallel to what the Government are doing in this case.
DNA is one of the greatest aids we have had in modern times to assist in solving crimes, particularly unpleasant and nasty ones—I totally concede that. However, we must never lose sight of the liberties of the subject. That means that the DNA collected from innocent people who volunteer to give it in a murder inquiry should automatically be destroyed; the DNA of people who have been arrested but against whom charges have not been brought should be destroyed; and the DNA of people who are charged and acquitted should also be destroyed. I do not know whether the amendment goes far enough or whether it is comprehensible—I looked at it, tried to read it but could not understand it—but I was efficiently briefed by Liberty. I believe that that sums up Liberty’s position, as well as I can remember it, and also the position of the Joint Committee on Human Rights. We were unanimous on this issue, as we are on quite a few matters, and there was no question of any split or vote on it.
When a case is lost in the European Supreme Court, it is stupid of the Government, instead of accepting that the case is lost, to produce legislation which will lead to them losing again. I fear that the provisions in the Bill will produce another fall at the second hurdle. The amendment should at least be taken seriously, if not accepted.
Baroness Kennedy of The Shaws: My Lords, I, too, support the amendment. I can always be relied upon to be consistent on this issue. From the point where the law was changed to allow the retention of the DNA of those who were arrested but subsequently not charged, I have opposed that retention. People feel quite seriously that there is a stigma attached to the retention of DNA. If they have been arrested and no subsequent charge follows, its retention on the database makes them feel that a terrible wrong is being done to them by the state. That might be different if everyone were on the database from the word go, but it is not the situation that we are currently facing.
I was saddened that the Government did not accept, in light of the European Court’s decision, that there were breaches of human rights principles. While I was not particularly accepting of the Scottish formula, I felt that it was a compromise that the Government should have willingly accepted. It is a great regret to me that they have not done so. I, too, shall support the amendment. It seems to me that a case will go up through the courts, and it is very likely that it will be found that the Government’s new formulation will, like the old one, offend against human rights standards. I would have thought that this was a moment to say, “Enough. Let’s reflect on this over the next period and see what a new Parliament, in whatever form it is, might feel about all these matters in a fresh dawn”.
Lord Judd: My Lords, having spoken on this subject at Second Reading, I feel compelled to say that I have a good deal of good will towards the drift of the amendment put forward by the Liberals. I find it very sad that, at the end of this Parliament, we should be endorsing the erosion of one of the fundamental principles of justice in this country as I have understood it, which is the presumption of innocence.
There will be those for whom there is no question of their presumption of innocence; there will be some who have a qualified presumption of innocence because their name is on a register or record even though they have not been found guilty of any crime. This is not an acceptable situation. I also find it very sad that we should at this stage be dragging our feet not only on what our own Joint Committee on Human Rights and Select Committee on the Constitution have said but on what the European Court has been so firm about.
The issues of proportionality, too, are central to our whole tradition of justice, and this is what has raised anxiety. I would have liked to feel at this stage that we were in the vanguard of defending these principles. I am really concerned about the erosion of everything that we have understood to be the cornerstones of our system of justice.
I am sorry to have to say these things this evening, but, having spoken at Second Reading, I think that it would be pretty feeble just to walk away and not put on record my feelings about the amendment. I shall be very sad if my noble friend is not in some way able to meet them, because I have the highest regard for him and all the responsibilities that he carries so cheerfully and willingly on our behalf. I regard myself as one of the firmest supporters of the Government, but I can put it no other way than to say that I am very sad to find myself in this predicament this evening.
Lord Avebury: Your Lordships might be interested to hear a story which I am about to tell of a person who had his DNA taken when he had no criminal record. Having gone through the immigration process at Heathrow Airport—he was a British citizen—he was stopped by Special Branch on the land side, taken aside, detained and made to give a sample of his DNA and fingerprints. When I was asked to assist him in getting the samples removed from the database, I wrote to the relevant Minister in the Home Office and was told there was a procedure whereby one could appeal to the relevant chief officer of police for a special review. I wrote to the chief officer of the Metropolitan Police; I gave him the details of what had happened and asked him to conduct a review. After a while, he wrote back and said that he was not the chief officer concerned because he did not deal with Special Branch cases. I therefore had to write another letter to a different chief officer of police.
To cut a very long story short, it took 14 months for that review to take place, during which the man concerned had, as noble Lords have said, a stigma hanging over him because his samples were taken on the database. People would say, “Well, surely he must have been guilty of something if they felt so certain that the DNA was required to be kept in this way”. I subsequently discovered that only three people had been successful in making a special appeal and getting DNA samples removed from the database. Everything that has been said about the violation of our human rights and the ignoring of the European Court is reinforced by what one knows about these cases.
I sincerely hope that the Minister will pay close attention to the amendment and, if not agree to it, at least guarantee that we will take steps to bring ourselves into conformity with our commitment to European human rights legislation.
Baroness Neville-Jones: My Lords, the retention, destruction and use of DNA samples have been the subject of much debate over several years. The controversy has centred on the indefinite retention of the DNA profiles of those who have committed no crime or who have been cleared of allegations against them, which has been found to be illegal. We on these Benches, with others, have successfully pushed the Government to end the permanent retention of innocent people’s DNA. Hence we now have these government proposals in the Bill.
I said at Second Reading that we still preferred the Scottish model, under which the state would retain for a limited period of three to five years the DNA profiles of those not convicted of an offence only in circumstances where charges relating to a crime of violence or of a sexual nature had been brought. The Home Secretary says that the police in Scotland do not think that their model works well; the Minister said the same thing when we last debated this matter. However, this is not borne out by the evidence, which shows that the Scottish system has a higher detection rate than that in England and Wales. Moreover, Labour Members of Parliament supported the Criminal Procedure (Scotland) Act 1995 which put that system in place. I therefore beg leave to take issue with those who claim, as the Home Secretary has done, that to take the Scottish system seriously is not to take the issue seriously.
The problem is that we are out of time for proper discussion, so we have to look at the essentials. First, we now have cross-party acceptance of the principle that the indefinite detention of the DNA profiles of those who are innocent is wrong and ineffective. We need to get this principle into law. It is also a requirement of the ECHR’s judgment, which we agree with and respect. Secondly, the legislation offers some control over one of the other most obnoxious features of current system, which is the postcode lottery involved in getting off the database the profiles of those who should not be on it.
At this late stage, the Liberal Democrat Benches have put forward an amendment which in some respects travels back from the rather uncompromising position that they have taken hitherto. Sadly, it is too late for proper discussion. Were we able to have that, there would be a number of changes that we would want to try to make. The amendment fails for instance to provide for getting on to the database the profiles of those who have been convicted of criminal offences but who have never been put on it. There are a significant number of people who should now be on that database, if we regard the database as being a way of usefully detecting crime.
The position of my party is absolutely clear. We do not resile from the view that the entire system needs to be overhauled, not piecemeal but systematically. A Conservative Government if in office will do the following: they will legislate in the first Session to make sure that the DNA database includes permanent records only of people who have been convicted of an offence and, for a more limited period, those charged with sexual or violent offences. Secondly, we will focus efforts on collecting the DNA of all existing prisoners, those on probation, on licence or in prison or under the supervision of the criminal justice system, which the Government have failed to do. Thirdly, we will introduce new guidelines so that those wrongly accused of minor crimes and who have volunteered their sample have an automatic right to have their DNA removed from the database—one thing that this House most strongly objects to. It is not about one party being soft on crime and one party being tough on crime, as the Home Secretary said; that is absolute nonsense. We all agree that DNA is an important and useful tool. The issue is one of creating a DNA database that works and that has public trust, given that detections have fallen although the number of profiles has ballooned. This is a point that should not be missed. In fact, the prison system is not working very well because, although we have increased numbers put on it, the actual number of detections is falling.
Systematic reform is needed and a new approach focused on the guilty and on those who pose most risk. This is a fundamental root and branch change that we will not achieve today but which must be achieved by a new Government. For now, we take the view that it is important that we have in law acceptance of the proposition that the indefinite retention of innocent people’s DNA is unacceptable and illegal.
Lord West of Spithead: My Lords, I certainly did not understand wash-up before, and I am still not sure that I do understand it. However, it seems to me to be an agreement between the main parties about finding a way ahead, so I was rather taken aback by the noble Baroness, Lady Neville-Jones, listing a great long list of proposals for what is intended to be done. My understanding was that it was only because of an agreement that this has come through—but clearly I have been taken flat aback on that one and do not understand what is going on. But that was my understanding of it.
In any event, as has been said, the proposed amendments would replace our proposal with a variant of the Scottish retention model. It was discussed, of course, in the other place, where it was pressed to a Division and defeated by some 79 votes. As the Committee will be aware, Scotland has a very different approach to the retention of fingerprints and DNA from the one that the Bill proposes. The Scottish model is that DNA samples and resulting profiles must be destroyed if the individual is not convicted or granted an absolute discharge, and DNA may be retained for those not convicted only if they are suspected of certain sexual or violent offences, when it may be retained for three years. That can be extended at perhaps two years at a time with the approval of a sheriff. While there was some support for the Scottish retention model during the Bill’s earlier stages in the other place, it should be noted that the Scottish Executive, as with so many other things that the Scottish Executive do, arrived at their model with no research whatever. It was just plucked out of the air. The model also has significant operational limitations. As the noble Baroness, Lady Neville-Jones, says, it is not just the Government’s view that the Scottish model poses problems for the police; the Scottish Association of Chief Police Officers said in February 2008:
“Our position is that we should move into line, after discussion with Scottish Government, with England and Wales and DNA samples should be taken and retained under strict guidelines from offenders. We are in favour of mirroring any legislation in the UK Parliament allowing the taking and retention of DNA samples from persons arrested for an offence”.
It is interesting to note the talk about higher detection rates in the Scottish example. That is not the case. The Scottish DNA database does not have a higher success rate. The figures quoted on one occasion look at 2005–06 figures and do not compare like with like. The latest like-for-like data, from 2008–09, show that the England and Wales database has a 13 per cent higher success rate than Scotland, so the Scottish Association of Chief Police Officers is correct and our system is somewhat better.
More significantly, consideration also needs to be given to the underlying principal question in this amendment of whether the biometric data of those not convicted of an offence should be treated differently depending on the nature of the offence under investigation. Potentially, that could create different levels of innocence, depending on what it is that someone has not done. We propose a single retention period regardless of the seriousness of the offence for which a person has been arrested. The best available evidence indicates that the type of offence for which they are first arrested is not a good indicator of the seriousness of the offence that he or she might subsequently commit. The Scottish model, proposed in the amendment, therefore risks missing many detections of serious offences due to the nature of the offence originally under investigation. For example, in 2008–09 alone, there were at least 79 rape, murder or manslaughter cases in England and Wales that were matched to the DNA database from DNA profiles that belong to individuals who had been arrested but not convicted of any crime. Of that number, in 36 cases the matches were found to have had a direct and specific value to the investigation. If we had applied the Scottish retention regime and retained DNA profiles only from those arrested but not convicted of a serious crime, at least 23 victims of the most serious crimes, and of course their families, could have been denied justice last year alone.
In the light of the above, and as the retention of DNA is not punitive but a measure to facilitate the detection of future offences, we believe that a single retention period is the correct way forward. Indeed, on the point of it not being punitive, a number of speakers have talked about being on the database as being a stigma. I believe that it is a stigma only if people know that someone is on the database. I personally have no concern about being on it. Almost nobody knows that someone is on the database. It is a stigma only if someone knows that you are there.
On the Motions that Clauses 14 to 23 should not stand part of the Bill, I point out that if these Motions were carried we could be no further forward than we were at the beginning of last year. We would still be in breach of the European Court’s ruling, as a number of noble Lords have said, and we would not have a legislative framework for the retention of DNA profiles and fingerprints. We consider that our DNA retention proposals represent an appropriate balance between public protection and protecting individuals’ rights and liberties, based on the best available research. We also believe that it will meet ECHR requirements and the ECHR judgment. While some have criticised elements of our research evidence, I remind your Lordships of the key points that the evidence points us to. We can justify retaining the DNA of people who have been arrested but not convicted while the risk of offending is higher than that of the general population. Our analysis suggests that that risk, as measured by the risk of rearrest, is higher than the general population for six years following the first arrest. While arrest is only a proxy indicator of the risk of offending, the nature and volume of data currently available to us mean that a more precise arrest/conviction analysis is likely to be less reliable. Yes, we can do more work, but at least we have done some analysis, unlike under the Scottish system. The precise length of time to equalise the risk may vary in either direction due to the uncertainties in the analysis and data. On balance, these uncertainties are more likely to extend the time that it takes for these risks to be equal, which would argue in fact for a longer retention period. But we must do analysis and look at this in much more detail.
The noble Earl, Lord Onslow, referred to samples being taken from volunteers. Those samples can and must be removed from the database on request, and DNA from a volunteer is put on the database only in very exceptional circumstances, at the explicit request of the volunteer.
Ultimately, the evidence can only go so far to answering the question of what is an appropriate retention period. When there are statistical uncertainties around the estimate, the final decision must be one based on judgment—it is not precise yet—and not evidence alone. But we are trying to build up more evidence to get a better database. That is how we arrived at a retention period of six years, the point at which our research tells us that the risk of rearrest returns to the risk of arrest in the general population. We consider that our proposals are a cogent and considered package and represent a huge change from the situation as it stands, as was touched on by the noble Baroness, Lady Neville-Jones, taking us from a blanket indefinite retention, whereby innocent and guilty are treated alike, and whereby DNA profiles are kept as long as DNA profiles—two finite periods based on research and differentiating between different categories of individual. We further believe that the safeguards outlined in Clause 23 relating to the national DNA database strategy board provide sufficient scrutiny and oversight of the process and will result in clear and consistent guidance being issued in future on the destruction and deletion of profiles. A number of speakers touched on that point.
I am particularly disappointed that, after all the consensual work done in the other place to put into place a new role for the strategy board, noble Lords wish to remove Clause 23. I also put on record my gratitude to the official Opposition for agreeing, as part of the wash-up, that our proposed retention framework should be put on the statute book. That agreement means that we can bring an end to the somewhat protracted process of responding to the judgment of the European Court, giving some certainty to both the police service and the public at large that biometric data will be held under a specific and detailed statutory regime. On that basis, I ask that Amendment 2 be withdrawn and that Clauses 14 and 23 should stand part of the Bill.
Baroness Hamwee: My Lords, I am very grateful to those noble Lords who have supported my amendment and my opposition to certain provisions in the Bill. I hope that they will forgive me if, in the interests of time, I do not go through all the points that they made. The Minister said that he still does not understand wash-up; he had thought that only what was agreed went forward. He said that after listening to the noble Baroness, who seemed to be opposing the Government’s proposals. All I would say is: indeed.
On having no research of the Scottish model, the Home Office research, by all accounts, seems to have been—what can I say?—a bit dodgy. It is certainly not as substantial or as useful as those looking for a solution to all of this would want to find. I understand, of course, that the police want the most extensive tools possible. The Minister talked of detection rates; my response is that the Home Affairs Select Committee, in one of its conclusions to the report that it published only recently, on 8 March, said:
“It is currently impossible to say with certainty how many crimes are detected, let alone how many result in convictions, due at least in part to the matching of crime scene DNA to a personal profile already on the database, but it appears that it may be as little as 0.3%”.
It went on that,
“we note that the reason for retaining personal profiles on a database is so that the person can be linked to crimes he/she commits later”.
Yes, the Government are proposing a single retention period—but one which is too long.
The noble Lord gave examples of where DNA has been used to solve crimes. We all know about hard cases and bad law. As I have said, the general view is that there is a poor evidence base for what is proposed. He said that if the clauses do not stand part of the Bill, we will be no further forward in responding to the European court. Indeed, that is absolutely my point; it would then be necessary to reconsider the matter.
For the Conservatives, the noble Baroness says that we are out of time for proper discussion, that it is too late for that and, in effect, that the amendment—she did not use this word—is inadequate. I thought that I could have done no better than using the Conservatives’ own amendment. If it is inadequate—in my view it would be a compromise, but one which I hoped would take the noble Baroness and her troops with us—better to start from the inadequate than the bad. The Conservatives, if they do not support these Benches on these amendments, must accept responsibility along with the Government for the bad. I wish to test the opinion of the House.
Division on Amendment 2
Contents 53; Not-Contents 159.
Amendment 2 disagreed.
Division No. 2
CONTENTS
Addington, L. [Teller]
Alderdice, L.
Alton of Liverpool, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Chidgey, L.
Clement-Jones, L.
Dholakia, L.
D'Souza, B.
Erroll, E.
Falkland, V.
Finlay of Llandaff, B.
Garden of Frognal, B.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Jones of Cheltenham, L.
Kennedy of The Shaws, B.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Livsey of Talgarth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Miller of Chilthorne Domer, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Loan, B.
Palmer, L.
Phillips of Sudbury, L.
Razzall, L.
Rennard, L.
Roberts of Llandudno, L.
St. John of Bletso, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Tyler, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Wilson of Tillyorn, L.
NOT CONTENTSAndrews, B.
Anelay of St Johns, B.
Archer of Sandwell, L.
Astor of Hever, L.
Attlee, E.
Bach, L.
Bassam of Brighton, L. [Teller]
Bates, L.
Best, L.
Bilston, L.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Bridgeman, V.
Brooke of Alverthorpe, L.
Brooke of Sutton Mandeville, L.
Brookman, L.
Brooks of Tremorfa, L.
Butler-Sloss, B.
Byford, B.
Campbell-Savours, L.
Cathcart, E.
Christopher, L.
Clark of Windermere, L.
Clinton-Davis, L.
Colwyn, L.
Cope of Berkeley, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
De Mauley, L.
Dubs, L.
Elder, L.
Elton, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fookes, B.
Forsyth of Drumlean, L.
Foster of Bishop Auckland, L.
Freud, L.
Gale, B.
Gardner of Parkes, B.
Geddes, L.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goodlad, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greenway, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hanham, B.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Henig, B.
Henley, L.
Hilton of Eggardon, B.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howarth of Newport, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Inglewood, L.
Jones of Whitchurch, B.
Jordan, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Lea of Crondall, L.
Luke, L.
MacGregor of Pulham Market, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mancroft, L.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Mayhew of Twysden, L.
Montrose, D.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Bolton, B.
Morris of Handsworth, L.
Morrow, L.
Neville-Jones, B.
Nicholson of Winterbourne, B.
Noakes, B.
Northbrook, L.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Clackmannan, L.
Onslow, E.
Paisley of St George’s, B.
Patel of Blackburn, L.
Pendry, L.
Perry of Southwark, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Quin, B.
Rawlings, B.
Richard, L.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Seccombe, B.
Selsdon, L.
Sewel, L.
Sheikh, L.
Shrewsbury, E.
Slim, V.
Soley, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Taylor of Holbeach, L.
Thornton, B.
Tomlinson, L.
Trefgarne, L.
Trenchard, V.
Tunnicliffe, L.
Verma, B.
Waddington, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Waverley, V.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilcox, B.
Wilkins, B.
Williamson of Horton, L.
Young of Norwood Green, L.
Update: On April 8th at 5:22pm, Mr Speaker announced that the House has been to the House of Peers where a Commission under the Great Seal was read, authorising the Royal Assent to twenty Acts including the Crime and Security Act 2010.
The Home Office proudly confirmed:
The Act contains the following provisions:
- a new DNA retention regime to hold the DNA profiles of convicted offenders indefinitely and keep the DNA profiles of those who are arrested but not convicted of a recordable offence for a fixed amount of time;
- powers for police to retrospectively take DNA samples from violent and sexual offenders returning to the UK following conviction overseas, and to collect DNA from such convicted offenders who are no longer in prison;
- a mandatory parenting needs assessment when young people aged ten to 15 are being considered for an antisocial behaviour order (ASBO) and parenting orders where they have breached their ASBOs;
- powers for police and local authorities to apply to a county court for an injunction against young people over 14 to prevent gang related violence, for example prevent a gang member from meeting other named gang members or going into a particular 'territory';
- domestic violence protection orders requiring an alleged domestic violence perpetrator to leave the home for a fixed period of time;
- a licensing scheme for wheel clamping companies and an independent appeals process for motorists who feel they have been wrongly clamped;
- financial compensation for British citizens who have been injured or bereaved by a terrorist attack overseas;
- powers for licensing authorities to make an order restricting the sale or supply of alcohol between the hours of 3am and 6am;
- reduced amounts of information that police must collect when stopping and searching an individual;
- powers for police to search individuals subject to control orders and to seize items of concern where appropriate;
- a new offence of possession of an unauthorised mobile phone or other electronic communications device in prison; and
- a new offence of failing to prevent minors from having access to air weapons.
First published on 2010-04-07; last updated on 2010-04-08.