§ Mr. McFallI beg to move amendment No. 9, in page 22, leave out lines 17 to 19 and insert—
'(4A) A police surgeon may, with the authority of an officer of a rank no lower than Inspector, take from the person from an external part of the body by means of swabbing or rubbing a sample of blood or other body fluid or of body tissue or of other material.'.
§ Madam Deputy SpeakerWith this, it will be convenient to take the following amendments: No. 10, in page 22, line 21, leave out 'or (4)' and insert
'(4) or (4A)'.
No. 13, in page 22, line 27, at end add—
'(7) In this section "an external part of the body" means any part of the outside skin of the body or any hair growing on it except insofar as these are covered by clothing.'.
§ Mr. McFallThis group of amendments relates to clause 28, which was debated intensely and in a lively fashion in Committee. The Opposition have tried to be helpful to the Minister by giving a definition of what constitutes an external part of the body. I think that the 490 Minister defined an external part of the body—to put it succinctly—as one that was not an internal part of the body. There is a searing logic to that definition, which I am sure will make much money for many solicitors and QCs.
Today, I have spoken to the Law Society, to which the Minister sent a helpful letter. The Law Commission's committee has studied the Minister's letter carefully and Michael Clancy told me today that the commission is reassured on many aspects of the matter. I am happy to go along with that: if the Law Society is happy, that is fine.
I know that the Scottish Police Federation and serving police officers are still nervous about the position and have not been reassured by the Minister. That is why I referred just now to the House of Lords judgment of 26 November 1992 in the case of Pepper v. Hart. The Minister will know that that historic judgment stated that, as an aid to construing legislation that was ambiguous or obscure—and which of us knows of legislation that is not unambiguous or obscure—or the literal meaning of which led to absurdity, the courts could refer to reports of debates or proceedings in Parliament.
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With that judgment in mind, I ask the Minister to respond, so that at some stage—perhaps in the next century, in 50 years' time when the Minister and I will not be around—the Minister's name can be invoked regularly in the Scottish courts. It is important that the Minister should make the point here to reassure both the Law Society and serving police officers on that aspect of clause 28.
§ Lord James Douglas-HamiltonThe amendments raise issues that were debated in some detail in Committee. It may help the House if I explain briefly the main purpose of clause 28.
The provisions in that clause are intended to clarify the powers of the police to take samples and fingerprints of both detained and arrested persons without the need for a warrant. Where a warrant is required or considered necessary, the police will continue as at present to apply through the fiscal to a sheriff for a warrant.
The Bill does not seek to determine the use to which any sample is put, whether it is obtained under warrant or not. If the police or a prosecutor considers that, for the purposes of their investigations, any sample should be subject to the DNA test, then that will be done.
It should be noted, however, that a DNA test will in most cases be of assistance only in determining the suspect's DNA profile in order to compare that profile with any determined from blood, bodily tissue or fluid found on the victim or at the scene of the crime. In such cases, a DNA test will have to be run on a sample clearly taken from an internal part of the body of that suspect—from a hair root plucked from the victim, or from a proper full sample of blood. In both such instances, the sample involved will be invasive. It could not, therefore, be taken by a constable under the provisions of the clause. If the suspect is willing to have such samples taken, it would be possible to proceed without a warrant, but it is normal in such circumstances for a warrant to be obtained in any event.
The types of sample covered by clause 28(4) are all non-invasive. The opinion of the Scottish Law Commission, which I share, is that they are of a kind for which neither a warrant nor the assistance of a doctor 491 should be required. Some form of authorisation should, however, be involved—hence the reference to an officer of a rank no lower than inspector.
The amendments require a police surgeon, rather than a police officer, to take swabs or rubbings. I fail to see the grounds for such a change. Clearly, there is no medical reason for requiring a police surgeon to take the samples because, as I have stressed, they are non-invasive. There is no evidential reason. The police, unlike doctors, are trained in how to take samples from a variety of locations, and procedures exist to ensure the correct packaging and labelling of such samples to maintain their evidential worth. The services of a police surgeon would not, therefore, add to the evidential value.
§ Dr. GodmanI am grateful to the Minister for showing his characteristic courtesy.
Am I right in thinking that a DNA testing unit is to be created in Glasgow? If so, when will it be operational? And was any consideration given to siting it in Greenock—perhaps in the enterprise zone, where it might have created some employment?
§ Lord James Douglas-HamiltonThere is, indeed, to be a DNA unit. I cannot tell the hon. Gentleman whether Greenock was considered as a prime site, but I can tell him that Strathclyde and Tayside forensic science laboratories are the only laboratories providing DNA facilities in Scotland at present. Forces which do not have DNA facilities available submit items for DNA examination to Cellmark Diagnostics. Such facilities exist, and I am sure that Greenock will be borne in mind for the future.
I come now to the definition of "external". In Committe we had an interesting debate on what constituted external or internal. I fear that amendment No. 13 does not take us much further, as essentially it merely seeks to substitute "external" with
the outside skin of the body".In any event, as I made clear previously, if the police have any doubt about the area from which a sample is to be taken, they can apply for a warrant.Amendment No. 13 goes on to require that, where any outside skin of the body is covered by clothing, the police cannot exercise their powers unless under the authority of a warrant.
I recognise hon. Members' intentions in tabling the amendment, but I do not consider that the proposed changes would improve the clause. It could result in warrants being required not to take samples but to remove a piece of clothing—for example, a glove—to enable the sample to be taken. Nor do the amendments help to clarify what would happen, for example, if the clothing were torn, or if there were a sample of material at the back of a suspect's neck and he was wearing an open-necked shirt. I believe that the amendment would give considerable scope for confusion.
In the light of my comments, I ask the Opposition not to press the amendment.
§ Mr. McFallI am happy to accept the Minister's comments on the matter.
§ Dr. GodmanWill my hon. Friend confirm that considerable reservations were expressed by representatives of our police forces about the powers to be given to them under this part of the Bill, and that those reservations have largely been ignored by Ministers?
§ Mr. McFallI feel that that is so. In my discussions with them, the police told me that they felt that the power were being foisted on them with no consultation whatever. They had a suspicion—shared, I believe, by Opposition Members—that the clause represented a cost-cutting exercise on the part of the Government and that the police were being asked to do what police surgeons had done previously. As my hon. Friend says, the fears of the police force have certainly not been allayed, and I urge the Government to enter into discussions with the police so that they may be reassured on these matters.
Given that the Law Society is reassured, and that the Pepper v. Hart case will mean that comments made here can be referred to at a later date, as well as the Minister's reassurance, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave withdrawn.